R v Holliday
[2014] ACTSC 384
•10 September 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Holliday |
Citation: | [2014] ACTSC 384 |
Hearing Date: | 9 September 2014 |
DecisionDate: | 10 September 2014 |
Before: | Master Mossop |
Decision: | See [48] |
Category: | Interlocutory application |
Catchwords: | PROCEDURE – Application to temporarily stay trial – pre-trial publicity – whether substantial risk of prejudice arising because of pre-trial publicity – whether the accused would receive a fair trial if the trial proceeded and the trial judge took steps to ensure that the effect of adverse pre-trial publicity was excluded or minimised |
Legislation Cited: | Criminal Code 2002 (ACT) Evidence (Miscellaneous Provisions) Act 1991 (ACT) |
Cases Cited: | Dupas v The Queen (2010) 241 CLR 237 Murphy v The Queen (1989) 167 CLR 94 |
Texts Cited: | Chesterman, Chan and Hampton, Managing Prejudicial Publicity: An empirical study of criminal jury trials in New South Wales (Law and Justice Foundation of New South Wales, 2001) |
Parties: | The Queen Aaron James Holliday |
Representation: | Counsel: Mr S Drumgold (Crown) Mr K Archer (Defendant) |
| Solicitors: ACT Director of Public Prosecutions (Crown) Pappas J - Attorney (Defendant) | |
File Number: | SCC 10 of 2014 |
Publication Restriction: | See Order 1 at [48]. (Note: This order was subsequently discharged by orders of the Court on 17 September 2014 and 6 August 2015.) |
Introduction
The accused, James Aaron Holliday, faces five charges. The first is a charge of attempting to pervert the course of justice, an offence under s 713 of the Criminal Code 2002 (ACT) (Criminal Code). The other four charges are charges of incitement under s 47 of the Criminal Code. Those charges comprise of two charges of inciting Darren Powell to murder Jacob Tarrant and Trent Gordon respectively and two charges of inciting Darren Powell to kidnap Jacob Tarrant and Trent Gordon respectively.
The accused was committed for trial by the ACT Magistrates Court on 23 January 2014 and the trial is listed to commence on 15 September 2014. It has an estimate of four to five days.
Application
By application in proceeding dated 8 September 2014 the accused seeks the following orders:
1.The indictment numbered 1 to 5 dated 24 January 2014 be temporarily stayed.
2.That trial date of the 15 September 2014 be vacated.
3.The matter be placed in the next callover for allocation of a date in 2015.
4.References to the accused on the website of the ACT law Courts be de-identified.
5.That a non publication order be made in respect of this application.
6.Any other others that the Court considers appropriate.
At the hearing of the application counsel for the accused no longer pressed for order 1. However, the seeking of orders 2 and 3 would have the effect of preventing the prosecution from proceeding until a date in 2015.
Evidence
The evidence in the application was an affidavit of the accused’s solicitor, Mr Lee, of 8 September 2014. That affidavit disclosed the following.
The current charges were first investigated between May and August 2010.
The accused was sentenced in relation to other charges to which he pleaded guilty and on 24 November 2010 was sentenced to 16 and a half years with a non-parole period of seven years in respect of those matters. An appeal was lodged, and on 31 July 2013 the Court of Appeal delivered its decision. The sentence was reduced to eight years with a non-parole period of five and a half years.
Although the affidavit states that the charges the subject of the Court of Appeal decision were unrelated, they were in fact related by reason of the fact that the present charges involved allegations that the accused attempted to incite another person to kidnap or murder the victims of the offences for which he was sentenced.
It is that conduct which was said to amount to a contravention of ss 713 and 47 of the Criminal Code.
The trial of the charges is due to commence next Monday, 15 September 2014.
On 30 August 2014, The Canberra Times published an article both in its print version and its online version relating to the accused. While the headline of each article was different, the content of the article was the same.
In the online version the headline was “Sex Offender has parole hearing a week before facing court on murder charge”. On the print version the headline was “Paedophile facing trial for death plot seeks parole”. The print version was published on page 5 of the newspaper.
Having regard to the content of the article on Monday 1 September 2014 Mr Lee contacted one of the authors requesting that the online version be removed from The Canberra Times website. On 2 September 2014, he received an email advising that the article had been removed from the website. I will return to the content of the newspaper article later in these reasons.
The affidavit also annexed the first page of search results generated by a Google search for the accused’s name. That discloses the following matters.
(a)An article from 2013 reporting the results of the Court of Appeal proceedings.
(b)An article from January 2014 relating to the accused being charged with the present offences and his committal for trial by a Magistrate. The report included details of his previous convictions and the circumstances that gave rise to them.
(c)A reference to the discussion website known as “The Riot Act”, from December 2012.
(d)An article from December 2012 relating to police investigations of a pornography ring in the Alexander Maconochie Centre (AMC) which named the accused as being a person suspected of being involved.
(e)A reference to a private website describing Australian sex offenders.
(f)References to Facebook pages, Twitter accounts and LinkedIn accounts held by persons named Aaron Holliday, which appear unlikely to relate to the accused.
(g)An ABC News report of his plea of guilty in 2010.
There was no evidence of the circulation of the print version of The Canberra Times or of the readership of the online version of the newspaper or the article, in particular, during the period when it was available on the website.
The News Report
I will not set out the news report in full, but the report concerns the fact that “a Canberra child sex offender” was applying for parole just days before he was to stand trial for trying to have his victims murdered.
It reports the newspaper’s “understanding” of the opinions of his victims. It reports that he is wanted by New South Wales Police on further child sex allegations. It reports his current sentence, his eligibility for parole and the fact that he is facing new charges for perverting the course of justice and inciting kidnap and murder.
It refers to allegations that he was involved in a child pornography ring inside the AMC. It outlines in some detail the nature of the case to be made by the Crown in relation to the current charges.
It refers to him having been convicted of offences committed while he was on bail despite Court orders prohibiting him being with children.
Counsel for the accused, Mr Archer, pointed to:
(a)the reporting of the accused being in custody and only eligible for parole in October;
(b)the reference to similar charges existed in another jurisdiction;
(c)the allegations that he was part of a paedophile ring in the AMC;
(d)the fact that the description of the earlier offences goes beyond that which the Crown would lead at trial; and
(e)that the reporting was sensationalist in tone and designed to generate hostility for the accused.
Principles
A conviction will be able to be quashed as unsafe and unsatisfactory where the materials justify a conclusion that there was a likelihood of substantial risk of prejudice arising for pre-trial publication where the conviction is challenged on that ground: see R v Glennon (1992) 173 CLR 592 at 605 (‘Glennon’).
The courts are quite often called upon to grant relief to protect an accused person from a trial which is rendered unfair by reason of the pre-trial publicity. The leading High Court authority is Glennon. The issue has been considered again by the High Court more recently in Dupas v The Queen (2010) 241 CLR 237 (‘Dupas’). Some of the more high profile cases in which the New South Wales Court of Criminal Appeal has been required to deal with such issues are summarised in R v Jamal (2008) 72 NSWLR 258 at [16] (‘Jamal’). Most of the cases relate to applications for permanent stays of proceedings. When Glennon was decided, Mason and Toohey JJ said (at 598) that apart from Tuckiar v The King (1934) 52 CLR 335 there has been no instance of an accused’s conviction being quashed and a verdict of acquittal entered on account of the potential prejudicial effect of pre-trial publicity. As Weinberg JA discussed in R v Dupas(No 3) (2009) 28 VR 380 at [220], while in some cases permanent stays have been granted they have been overturned on appeal.
In R v Channell (2000) NSWCCA 289 at [13] (‘Channell’), Grove J with whom the other members of the New South Wales Court of Criminal Appeal agreed, said:
Each case must turn upon its own facts and the situation was neatly summarized by Street CJ in R v George (1987) 29 A Crim R 380 when he said:
“The principle is essentially one that places responsibility upon the trial judge to determine, in the light of the atmosphere of the trial and the nature and extent of the publicity, whether it is necessary to discharge the jury in the interests of ensuring a fair trial.”
It has been recognised that the granting of a temporary stay or orders which have the effect of delaying the trial and the proceedings are one means by which prejudice to an accused person by reason of the pre-trial publicity can be reduced: Murphy v R (1989) 167 CLR 94 at 98, 109, 125; Glennon at 614; and Jamal.
The decision as to whether or not to grant a stay or other relief is a discretionary decision: Glennon at 600; R v BWT (2002) 54 NSWLR 241 at [55]; Channell at [13], Jamal at [31].
Counsel were unable to point me to any cases in which the trial was adjourned or temporarily stayed by reason of adverse pre-trial publicity. However, I accept that such measures may be taken even if they are not the subject of published decisions. Other steps, such as adjournment of the trial without a stay, where that is available and appropriate, would achieve the same effect.
The effectiveness of delay in a trial has been described in Chesterman, Chan and Hampton, “Managing Prejudicial Publicity: An empirical study of criminal jury trials in New South Wales”, a report prepared in 2001 to which I was referred by counsel for the accused. That report states at [520]:
Subject to important exceptions explained in chapter 3, potential jurors often do not notice and remember pre-trial specific publicity: for example, reports of pre-trial proceedings. This suggests that relatively short delays to dissipate the effect of the last minute items of prejudicial publicity may well be effective.
The context in which juries now conduct deliberations has somewhat changed because of the pervasiveness of access to the internet as a resource for researching past media reports relating to an accused, or the circumstances of an offence. In R v K (2003) 59 NSWLR 431 at 450, Wood CJ at CL, with whom the other judges of the Court of Criminal Appeal agreed, made it clear that instructions should be given to the jury “that they should not undertake any independent research by internet or otherwise, concerning the proceedings, or the law applicable thereto, with a suitable explanation as to why they should not do so.” Such directions have now become routine.
In New South Wales and other jurisdictions provisions have been inserted in the Jury Acts to penalise jurors who make enquiries for the purposes of obtaining information about an accused or any matters relevant to the trial: see, for example, Jury Act 1977 (NSW) s 68C. However, the availability of the internet means that jurors who are not prepared to abide by the directions of the trial judge will often, if not usually, be able to discover information beyond the evidence that they hear in court about the circumstances of the alleged offence. Thus, while a temporary stay may help reduce prejudice arising, in some ways, from inadvertent contamination of a juror’s deliberation, it is a less effective technique than it might have been prior to the prevalent use of the world wide web.
In considering an application such as this, much depends upon the approach the courts take to the capacity of jurors to comply with directions that they are given by a trial judge as to deciding the case purely on the basis of the evidence that they hear in Court. A long line of authority now establishes that jurors should be presumed to be capable of conducting themselves in accordance with their duty and in accordance with directions given to them by the trial judge.
Even where a juror does have knowledge of some extraneous but prejudicial fact, such as a previous conviction, that does not mean that there has been or will be an unfair trial or a miscarriage of justice. In Glennon Mason CJ and Toohey J said (at 603):
Likewise, the suggestion that there was a substantial risk that at least one juror would have acquired knowledge, before the verdict was given, of the respondent's prior conviction was again a matter of mere conjecture or speculation. The mere possibility that such knowledge may have been acquired by a juror during the trial is not a sufficient basis for concluding that the accused did not have a fair trial or that there was a miscarriage of justice. Something more must be shown. The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence. As Toohey J. observed in Hinch (1987) 164 CLR, at p 74, in the past too little weight may have been given to the capacity of jurors to assess critically what they see and hear and their ability to reach their decisions by reference to the evidence before them. In Murphy v. The Queen [(1989) 167 CLR 94 at 99; see also Reg. v. Einem (1990) 55 SASR 199 at 211], we stated:
"But it is misleading to think that, because a juror has heard something of the circumstances giving rise to the trial, the accused has lost the opportunity of an indifferent jury. The matter was put this way by the Ontario Court of Appeal in Reg. v. Hubbert [(1975) 29 CCC (2d) 279 at 291]: 'In this era of rapid dissemination of news by the various media, it would be naive to think that in the case of a crime involving considerable notoriety, it would be possible to select 12 jurors who had not heard anything about the case. Prior information about a case, and even the holding of a tentative opinion about it, does not make partial a juror sworn to render a true verdict according to the evidence.'"
To conclude otherwise is to underrate the integrity of the system of trial by jury and the effect on the jury of the instructions given by the trial judge.
Their Honours continued (at 604):
In the absence of evidence establishing some departure from established procedures, such as, for example, improper conduct by a juror, it is not legitimate to infer that the jury did not comply with the trial judge's direction.
In Jamal, Spigelman CJ said at 19-21:
19Going back, for example, as Gleeson CJ said in R v VPH [(Court of Criminal Appeal, 4 March 1994, unreported) at 7]:
“The jury would be given appropriate directions to confine their attention to the evidence that is put before them. Our entire system of the administration of the criminal justice depends upon the assumption that jurors understand and comply with directions of that character.”
20Furthermore, as McHugh JA said in Gilbert v R (2000) 201 CLR 414 at 425:
“[31]...Put bluntly, unless we act on the assumption that criminal juries act on the evidence then in accordance with the directions of the trial judge there is no point in having criminal jury trials.”
21The perspective that juries properly perform their tasks, are true to their oaths and comply with a trial judge’s directions has repeatedly been applied in appellate courts over recent years (see the R v Milat [(1996) 87 A Crim R 446]; R v Bell [(2002) 8 NSWLR 311]; Long v The Queen [(2002) 128 A Crim R 11]; R v Richards (1999) 107 A Crim R 318; R v Dudko [(2002) 132 A Crim R 371]; R v D’arcy [(2003) 140 A Crim R 303]; R v Burrell [[2004] NSWCCA 185)].
In R v Mokbel (2009) 26 VR 618 at [90], Kaye J said:
In addition it has long been the experience of trial judges in this State and in this country that jurors in criminal and, indeed, civil trials are particularly astute and conscientious in adhering to directions given to them as to their role and as to the principles which they are to apply in determining their verdicts.
It is important not to overlook nor to underestimate the capacity of juries and the increasing sophistication of them. The reported cases are replete with statements by judges reflecting the experience of the common law courts that juries have consistently for many decades been particularly rigorous in the performance of their judicial roles.
In Dupas at [26] and [29] a unanimous seven judge bench of the High Court said:
26 There is an important point here. It is often said that the experience and wisdom of the law is that, almost universally, jurors approach their tasks conscientiously. The point was made as follows by Hughes J, with the endorsement of the English Court of Appeal, in R v Abu Hamza [[2007] QB 659 at 685-686]:
Extensive publicity and campaigns against potential defendants are by no means unknown in cases of notoriety. Whilst the law of contempt operates to minimise it, it is not always avoidable, especially where intense public concern arises about a particular crime and a particular defendant before any charge is brought. Jurors are in such cases capable of understanding that comment in the media might or might not be justified and that it is to find out whether it is that is one of their tasks. They are capable of understanding that allegations which have been made may be true or may not be and that they, the jury, are to have the opportunity and responsibility of hearing all the evidence which commentators in the media have not and of deciding whether in fact the allegations are true or not. They are not surprised to be warned not to take at face value what appears in the media, nor are they these days so deferential to politicians as to be incapable of understanding that they should make no assumptions about whether any statements made by such people are justified or not. They are also capable of understanding and habitually apply the direction that they are given about the standard of proof."
. . .
29 Whilst the criminal justice system assumes the efficacy of juries, that "does not involve the assumption that their decision‑making is unaffected by matters of possible prejudice" [Gilbert v The Queen (2000) 201 CLR 414 at [13] per Gleeson CJ and Gummow J]. In Glennon, Mason CJ and Toohey J recognised that "[t]he possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial." What, however, is vital to the criminal justice system is the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations. That capacity is critical to ensuring that criminal proceedings are fair to an accused.
Consideration
I accept Mr Archer’s submission that the tone and content of the article has the capacity, if read by jurors, to be prejudicial to the accused in so far as it discloses unrelated offences, suspicion of involvement with a child pornography ring within the AMC, pending allegations of other offences in New South Wales and concern by victims’ families at the prospect that the accused might be released on parole.
The extent to which it goes beyond the description of the earlier offences was a matter of debate and is likely, at least at the margins, to be the subject of rulings by the trial judge. The Crown will certainly be propounding the admission of more, rather than less detail relating to the underlying offences in order to give the jury a proper understanding of the background and circumstances in which it was alleged that the accused performed the acts the subject of the present charges. Those facts may be significant for establishing the accused’s intention. Although it is not possible now to finally assess the extent to which the article goes beyond that which will be admitted before the jury, I consider it unlikely that significant prejudice could arise in this respect.
I accept that the article is sensationalist in tone. The publication of the article does not reflect well on the professional judgment of the journalists involved given that the content of the article makes it clear that the journalists were very well aware of the accused’s upcoming trial. I have not been asked to and have not considered whether the publication of the article might constitute a contempt of court.
Mr Archer submitted that I should make orders to ensure that the trial was as fair as possible, recognising that the possibility that the jurors might be affected by pre-trial publicity could not be excluded.
In my view, this is not quite the right starting point. The question must be whether or not the accused would receive a fair trial if the trial proceeded and the trial judge took steps to ensure that the effect of adverse pre-trial publicity was excluded or minimised.
I am satisfied, in this case, that the accused can receive a fair trial and a trial not involving a miscarriage of justice, notwithstanding the ill judged article published by The Canberra Times. That is for the following reasons:
(a)The article was a single article, although occurring against the background of the previous reporting that might be available through searching on the internet.
(b)It is open for the trial judge to give the routine directions to the jury as to the material that they should take into account or not take into account in deciding the case. Such directions will be able to be given without specifically alerting the jury to the existence of recent potentially prejudicial publications.
(c)It would be open if the trial judge thought fit to adopt the approach undertaken by the trial judge in Glennon when empanelling the jury, namely identifying the charges, the alleged victims and principal witnesses for the prosecution and briefly summarising some of the background facts and asking those who either knew witnesses or who had heard anything about the circumstances of the case to identify themselves. In that case the trial judge then excused members of the panel where he considered it inappropriate: see Glennon at 601.
(d)While the article was sensationalist in tone, and intended to be adverse to the interests of the accused, it did not explicitly involve prejudgment of the present charges and hence while prejudicial in some respects was not at the more extreme end of the spectrum of this kind of adverse publicity.
(e)There was no evidence of the circulation of The Canberra Times. While it is the local daily newspaper, I have no evidence about the readership of the Saturday print edition or any information about the Saturday online edition or any “metrics” as to how many people read the online article. While the Saturday newspaper is likely to be widely read it is not possible to say with any certainty the likelihood of jurors being exposed to that article. The situation is therefore different to a situation of a high profile and consistent media campaign where exposure to prejudicial material is more likely (cf Glennon and Dupas) or where there is actual information on circulation allowing the effect of a single article to be more definitely assessed (cf Channell at [12]) or survey evidence disclosing the likelihood of jurors having actually encountered information about the case (cf Glennon at 602).
I also take into account in the exercise of my discretion the public interest in having charges, such as these, determined as soon as reasonably possible. While the accused only proposed a delay, in effect, of around six months, there is the public interest in having matters proceed in a timely fashion and inevitable further erosion of memory by the reason of further delay in hearing the charges.
I am not satisfied that the accused will be unable to receive a fair trial or that any trial will involve a miscarriage of justice if the matter proceeds next Monday. Further, I am not satisfied that the degree of any prejudice that he might suffer notwithstanding the directions or other steps that the trial judge might take warrants the vacation of the trial date and an adjournment of the hearing. As a consequence, I decline to make orders 2 and 3 in the application.
In relation to order 4, namely, that the references to the accused on the ACT Law Courts website be de-identified, I am not satisfied that I should make any direction at this stage. While I accept that there is information in the decision of the Court of Appeal, which is likely to go beyond that which will be led at trial, there is unlikely to be any prejudice that occurs between now and the date of the trial because prospective jurors, not knowing that they will be hearing a case involving the accused, are unlikely to stumble across the decision or search for it.
In my view, whether or not steps should be taken to de-identify or temporarily remove the Court of Appeal decision from the website is a matter which is best left for the trial judge who can make a decision, either prior to the trial or in the light of his or her rulings as to the scope of evidence about the previous offence which may be led at the hearing. Removal from the website is something which, as I understand it, can be achieved relatively quickly, although it obviously would not prevent a determined searcher from locating a copy of the decision published elsewhere. It is an administrative act which, as I understand it, neither party would object to being taken.
I am, however, satisfied that it is in the interests of justice that the evidence given in this application, any report of the evidence and any identification of the accused not be published and I will make an order under s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). Had there been anyone else, apart from the lawyers present in court, I would have also closed the court during the giving of these reasons pursuant to s 111(4).
I make an order under s 111 because any publication relating to this application has the potential to increase the publicity given to the article complained of and increases the potential for jurors to become aware of that article.
The orders of the Court therefore are:
Until further order of the Court the publication of the following matters is forbidden:
a.the evidence given in support of this application;
b.any report of the evidence; and
c.the name of the accused.
The application in proceeding dated 8 September 2014 is otherwise dismissed.
| I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Master Mossop. Associate: Date: 7 August 2015 |
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