R v Hartley No. DCCRM-02-1268

[2003] SADC 143

R v HARTLEY, Michael Vivian
[2003] SADC 143

Judge Kelly      
Criminal

1. An application has been made by the accused for an order to vacate the trial or, in the alternative, to order the trial be stayed.

2. Mr Dibden, counsel for the accused, made it clear during the oral argument this morning that the accused was abandoning ground two of the application. He acknowledged that if the trial were to be held at some time in the reasonably near future the risk of prejudice to the accused would dissipate.

3. This application arises out of an article, which appeared in the Sunday Mail newspaper of 17 August 2003; a copy of which was annexed to Mr Dibden’s affidavit sworn on 12 September 2003.

4. I have read the authorities referred to in the helpful outline of argument supplied to me by Ms Sutcliffe for the director and I am mindful of the principles, which have been clearly enunciated in those cases. In particular, the remarks of his Honour the Chief Justice in R v Plunkett (1997) 69 SASR at pp.454-455.

5. In the end, the discretion must be exercised on the basis of the precise circumstances which arise in each case.

6. Here, the relevant facts are: that the accused is alleged to have indecently assaulted a young woman, aged 18 at the time when this offence was allegedly committed in March 2002.

7. The trial date has already been vacated on one prior occasion, but this does not appear to have been the fault of the accused. The prompt disposition of this charge is in the interests of both the accused and the alleged victim and her family. However, the article which appeared on 17 August 2003 was unusually specific in its content.

8. I accept Mr Dibden’s submission that the references in the article to prior convictions for dishonesty and fraud, recent imprisonment, the nature of the current charge and the reference to the listing of these charge(s) for trial in September have the capacity to seriously prejudice the fair trial of the accused.

9. The courts strive to ensure that prejudicial information of this nature is kept from juries.

10. In the High Court case of R v Glennon (1992) 173 CLR at p.604, their Honours, Mason and Toohey JJ, said this:

    “Reception of inadmissible evidence of a prior conviction has been said to offend against one of the most deeply rooted and jealously guarded principles of the criminal law.”

11. There is a real risk that a prospective juror might have glanced at or read the article of 17 August 2003. It would be extremely difficult for such a juror to put out of his or her mind those damaging references to the accused’s credibility.

12. The trial is imminent but has not yet commenced. I am informed that if the current trial date is vacated, it is likely to be possible to relist it within three months or so.

13. For all of the above reasons, I have decided that the accused’s trial should not proceed on Monday, 22 September 2003. I agree with Mr Dibden that listing this trial early in the new year will obviate the risk of prejudice to the accused’s fair trial arising out of the publication of this article on 17 August 2003. Accordingly, the trial date is vacated.