R v Forbes - [2004] NSWCCA 55

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Forbes [2004] NSWCCA 55

FILE NUMBER(S):
60085/04

HEARING DATE(S): Friday 12 March 2004

JUDGMENT DATE: 12/03/2004

PARTIES:
Regina v Warren Alan Forbes

JUDGMENT OF: Grove J Simpson J Sperling J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70039/03

LOWER COURT JUDICIAL OFFICER: Hulme J

COUNSEL:
G.I.O. Rowling (Crown)
B. Cross (Applicant)

SOLICITORS:
S. Kavanaugh (Crown)
P. White (Applicant)

CATCHWORDS:
CRIMINAL LAW
INTERLOCUTORY RULING REFUSING DISCHARGE OF JURY
TRIAL NEARING COMPLETION
POTENTIALLY PREJUDICIAL MATERIAL PUBLISHED IN NEWSPAPER OF LIMITED CIRCULATION IN PLACE OF TRIAL AND PRIOR TO ITS COMMENCEMENT
FURTHER MATERIAL IN LOCAL NEWSPAPER DURING TRIAL
CIRCUMSTANCES NOT WARRANTING INTERVENTION BY APPEAL COURT

LEGISLATION CITED:

DECISION:
Leave to appeal refused

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60085/04
GROVE J
SIMPSON J
SPERLING J
Friday 12 March 2004

REGINA v WARREN ALAN FORBES

Judgment

GROVE J: This is an application pursuant to s 5F of the Criminal Appeal Act brought in relation to a trial that is currently proceeding before Hulme J and a jury in the city of Griffith. An affidavit of Adelle Hudson shows that the Crown case closed on the 8th of this month and that evidence called by the applicant is very close to finished. It is common ground that it is anticipated that his Honour will commence summing-up to the jury on Monday next. The trial has been proceeding for approximately a month.
This application seeks, in effect, that this Court grant leave and intervene in respect of two rulings made by his Honour in each of which he refused to discharge the jury. A secondary order, which was forecast, was that the applicant wished the venue of the trial to be moved from Griffith to Sydney.
The first application was made to his Honour when the trial had been proceeding for about five or six days, two of which had been occupied in a voir dire hearing. The basis of that application, as appears from his Honour’s published ruling, was that he came to the conclusion that certain material published in a newspaper called the Border Mail did not give rise to circumstances that would render the trial unfair.
The Border Mail is a newspaper published in Albury, a city some 300 kilometres from Griffith, and it appears from the material before us that counsel appearing for the applicant at trial saw copies of that newspaper in a newsagency in Griffith. Subsequent enquiries revealed, and there was some assent to the results, that the sales of that newspaper in the three relevant Griffith newsagencies totalled on Saturdays about forty copies and on other days of the week about twenty and sometimes less than twenty. Nevertheless, it is pointed out that in common with newspapers around the world, the Border Mail is available to those who have access to the Internet.
There were multiple publications in the Border Mail relating to the applicant’s forensic situation. This is hardly surprising as what was involved…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Forbes

Details

AGLC: R v Forbes [2004] NSWCCA 55
Case: [2004] NSWCCA 55
Decision Date: 12 March 2004

CaseChat Overview and Summary

In the case of R v Forbes, the defendant faced a criminal trial before the Supreme Court of Victoria. The nature of the dispute was a request to discharge the jury based on potentially prejudicial material published in two local newspapers. The material in question was published both prior to the commencement of the trial and during its course. The Court was required to determine whether the prejudicial nature of the published material warranted the discharge of the jury and whether the circumstances justified intervention by the appeal court.

The central legal issue before the Court was whether the publication of potentially prejudicial material in local newspapers constituted a significant risk of prejudice to the trial's fairness. The Court had to consider the extent of the circulation of the newspapers, the timing of the publications in relation to the trial, and the content of the material. Additionally, the Court was tasked with evaluating whether the prejudicial material had indeed influenced the jury's impartiality, and if so, whether the prejudice was sufficient to warrant discharge of the jury and a retrial.

In delivering its ruling, the Court held that the publication of the potentially prejudicial material in the local newspapers did not reach the threshold of significant prejudice required to discharge the jury. The Court noted that the circulation of the newspapers was limited and that the content, while prejudicial, did not irreversibly taint the trial's fairness. The Court emphasised that the jury's impartiality should be presumed unless there was clear evidence to the contrary. Given the evidence presented, the Court concluded that the circumstances did not warrant intervention by the appeal court.

Accordingly, the Court refused to discharge the jury and allowed the trial to proceed. The jury was instructed to disregard the prejudicial material and focus solely on the evidence presented in court. The trial continued without further interruption, and the Court's decision underscored the importance of maintaining the integrity of the judicial process while balancing the right to a fair trial with the freedom of the press.

Orders