R v Lowe

[2003] NSWCCA 303

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      REGINA v LOWE [2003]  NSWCCA 303

FILE NUMBER(S):
60325/03

HEARING DATE(S):            28/08/2003

JUDGMENT DATE: 28/08/2003

PARTIES:
Simon Lowe (Applicant)
The Crown

JUDGMENT OF:      Ipp JA Grove J Dowd J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        02/11/1262

LOWER COURT JUDICIAL OFFICER:     Taylor DCJ

COUNSEL:
C Davenport (Applicant)
D Frearson (Crown)

SOLICITORS:

SE O'Connor (Crown)

CATCHWORDS:
Exercise of judicial discretion; onus on applicant to establish error; pre-trial publicity.

LEGISLATION CITED:
Criminal Appeal Act 1912

DECISION:
Leave to appeal granted; application dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60325/03

IPP JA
GROVE J
DOWD J

Thursday 28 August 2003

REGINA v SIMON LOWE

Judgment

1. IPP JA:  I agree with Dowd J.  I consider that no error in discretion has been established.

1. GROVE J:  I also agree.

1. DOWD J: This is an application for leave to appeal under s5F of the Criminal Appeal Act 1912 (“the Act”).

2. The applicant was to stand trial at the Sydney District Court on Monday 25 August 2003, having been charged with a number of offences on 8 January 2002.  He was committed for trial and arraigned on 14 February 2003.  A trial date was set for 4 July 2003.  The trial date was then vacated by consent, as the applicant was awaiting the outcome of an appeal to the Court of Criminal Appeal which was, in part, successful and which generated a degree of publicity.

3. On 15 August 2003 the applicant came before Taylor DCJ to vacate the trial date and have the matter listed for trial in two months’ time.  The basis of the application was that the applicant could not have had a fair trial because of the media publicity which had surrounded him during the two preceding months.  His Honour dismissed the application and the matter then came before the list judge, at which time a further application was also dismissed.

4. The matter is set down to commence on Monday 1 September 2003.

1. The court has had exhibited before it the evidence which was put before Taylor DCJ, as well as additional evidence of ongoing publicity in the form of an article published yesterday, 27 August 2003. This evidence is taken by the court as an indication of the nature of the ongoing publicity but it is not relevant to the matter before us.

1. The original application before this court was for the trial date to be vacated and the matter listed for a date after two months’ time.  Counsel for the applicant varied that to an application to vacate and for the matter go back into the list for the allocation of a date, which in fact may not be until later this year, or, more likely, early next year.

2. This being a court of error, the court is obliged to examine the exercise of discretion in terms of House v The King (1936) 55 CLR 499 as applied in numerous decisions of this court. The onus is on the applicant to establish an abuse of process, applying Williams v Spautz (1992) 174 CLR 509 at 529, the question being whether there has been an error in the discretion of the District Court Judge to exercise jurisdiction to hear the trial.

3. It must be remembered that any publicity such as that which occurred yesterday, that which may occur between now and any trial, or which may occur during the course of the trial, is a matter which can be dealt with by the trial judge.  Application can be made to that trial judge at any time in respect of any publicity, becoming a matter for the judge hearing the trial. 

4. As Taylor DCJ said, publicity of the nature of that which was before him was a matter which he considered in terms of both the nature and the extent of the publicity.  These covered a large range of matters and, as his Honour correctly said, they are matters which can be dealt with by way of directions.  It is clear and accepted by this court that such directions do have a cogent effect on juries.

5. The applicant has urged the court to consider, on his behalf, the nature of the publicity.  In my view, it cannot be said that no reasonable judge in the exercise of the discretion in the application could have come to the decision that was made. 

6. It is my view that no error in discretion has been shown and I would therefore propose that:

1. Leave to appeal be granted; and

2. The application be dismissed.

1. IPP JA:  The order of the court will be as proposed by Dowd J.

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LAST UPDATED:            12/12/2003