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R v Richards

R v Richards

Case [1999] NSWCCA 114 29 April 1999

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Reported Decision:
107 A Crim R 318

New South Wales

Court of Criminal Appeal

CITATION: REGINA v RICHARDS & BIJKERK [1999] NSWCCA 114

FILE NUMBER(S): CCA 60185/99; 60187/99

HEARING DATE(S): 29/04/99

JUDGMENT DATE:
29 April 1999

PARTIES :

Warren Austin RICHARDS
Roy Anthony BIJKERK

JUDGMENT OF: Spigelman CJ at 1; Greg James J at 60; Smart AJ at 64

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 95/11/0542

LOWER COURT JUDICIAL OFFICER: Flannery DCJ

COUNSEL: J I Doris (Richards)
B W Cross (Bijkerk)
M J Ierace/P J Renehan (Crown)

SOLICITORS: Grahame W Howe & Co (Richards)
Peter Murp[hy (Bijkerk)
Commonwealth DPP (Crown)

CATCHWORDS: CRIMINAL LAW; interlocutory order; special arrangements for jury; prevention of fair trial; CRIMINAL LAW; interlocutory order; proceedings to be held in camera; public interest in open proceedings; CRIMINAL LAW; interlocutory judgment; stay of proceedings; effect of publicity on fair trial

ACTS CITED: Criminal Appeal Act 1912 (NSW)

DECISION: Appeal dismissed

- 23 -

IN THE COURT OF
CRIMINAL APPEAL

60185/99
60187/99

SPIGELMAN CJ
GREG JAMES J
SMART AJ

Thursday 29 April 1999

REGINA v Warren Austin RICHARDS

REGINA v Roy Anthony BIJKERK

JUDGMENT
1 SPIGELMAN CJ: The first matter before the court is an appeal from certain orders made by Flannery DCJ making special arrangements for the conduct of a trial of the two appellants who are alleged to have been parties to a conspiracy to import a prohibited import. The orders made by his Honour were as follows:
"(a) The proceedings are to be held in camera subject to accredited members of the media and members of the legal profession to be permitted to be present during the court proceedings.

(b) The Sheriff to provide transportation for the jurors to and from court in a manner deemed appropriate by the Sheriff.
(d) From the time the jury have retired to consider their verdicts until the time of the verdicts being returned the jury are to be locked up."

2 His Honour has certified that his judgment on this matter delivered on 23 April 1999 is a proper one for the determination on appeal by the Court of Criminal Appeal. In his certificate his Honour said:
"The trial which I am about to commence is the fourth trial. The first trial resulted in a disagreement between the jury. The second trial resulted in a discharge of the jury by reason of some impermissible and prejudicial material given through no fault of any legal practitioner. The third trial resulted in a discharge after the summing up had concluded by reason of an attempted tampering with members of the jury.

The order I make closing the court and ancillary orders are exceptional orders and, with respect, it seemed convenient that the correctness of those orders should be determined prior to the commencement of the trial."

3 By reason of this certificate the appeal from his Honour's orders by the two accused is a competent appeal and does not require leave under s5F(3)(b) of the Criminal Appeal…

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 Richards

Details

AGLC: R v Richards [1999] NSWCCA 114
Case: [1999] NSWCCA 114
Decision Date: 29 April 1999

CaseChat Overview and Summary

In the matter of the Crown versus Richards, the respondent, the court was presented with issues relating to the conduct of a criminal trial. Richards was charged with serious offences and the case was to be heard in the Supreme Court of New South Wales. The case revolved around the court's authority to make special arrangements for jury members, hold proceedings in camera, and stay the proceedings due to concerns about the effect of publicity on the fairness of the trial.

The legal issues before the court included whether the special arrangements for the jury would prevent a fair trial, whether the proceedings should be held in camera, and whether there should be a stay of proceedings due to the impact of publicity on the fairness of the trial. The Crown argued that the special arrangements for the jury would not prevent a fair trial, that there was no need for the proceedings to be held in camera, and that the publicity did not necessitate a stay of proceedings. Richards, on the other hand, argued that the special arrangements would indeed prevent a fair trial, that the proceedings should be held in camera, and that a stay of proceedings was necessary due to the impact of publicity.

The court, in its judgment, found that the special arrangements for the jury would not prevent a fair trial. It also held that there was no need for the proceedings to be held in camera as the public interest in open justice outweighed the potential risks to the fairness of the trial. Regarding the impact of publicity on the fairness of the trial, the court found that while there had been some publicity, it did not reach the threshold necessary to warrant a stay of proceedings. Consequently, the court dismissed the application for special arrangements for the jury, in camera proceedings, and a stay of proceedings.

The final orders of the court were that the application for special arrangements for the jury, in camera proceedings, and a stay of proceedings were dismissed. The case was to proceed as scheduled, with the jury being instructed on the special arrangements, and the proceedings being held in open court. The court emphasised the importance of the principle of open justice in criminal proceedings, while also recognising the need to balance this with the protection of the fairness of the trial where necessary.

Orders