R v Richards

[1999] NSWCCA 114

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 Act 1912 (NSW).
4 The grounds for appeal are three fold:
1. There was no proper basis for his Honour Judge Flannery to

make the said orders.
2. The appellant will not receive a fair trial if the orders are not

revoked.

3. There is no direction that the trial Judge can give to the jury

that is capable of curing the prejudice that the appellant will
suffer as a result of the orders.

5. As indicated by his Honour in the certificate, and elaborated upon in his Honour's judgment, three previous trials of these accused for this offence have been aborted. Of some significance is a note from the first trial in which the jury said:
"The previous jury foreman has resigned due to frustration of discussions. The jury has not been able to reach unanimous agreement in relation to the charges against both accused, the verdict being 10 to 1.

There is one particular jury member who has sabotaged the deliberation process. The majority of jury members believe the Crown presented a very strong case. The majority of jury members wishes to apologise to your Honour, Mr Crown, the defence and the accused."

6. This notes in itself, in the circumstances of the first trial, is not determinative but it does indicate something that may be disturbing only by reason of the events that occurred on the third trial. Whether they are disturbing or not is not a matter which needs to be decided, but they form part of the background against which his Honour exercised his discretion.
7. Of particular significance for the purpose of the matters before this court are the circumstances in which the third trial aborted on the grounds, as his Honour put it, of apparent tampering with the jury. After the conclusion of the summing up by the trial Judge the jury was excused. After they had left the court they were approached by a woman wearing a disguise who gave them an envelope in which was contained the following statement:
"Warren Richards is a criminal and a convicted drug dealer and has been for the last twenty years. He and Neddy Smith murdered Sally Anne Huckstep and investigations are still pending. Richards is a millionaire all of which he has obtained through drug dealing and other criminal activities. Richards is guilty."
8. It also appears from the materials before Flannery DCJ and in this court that a former detective who was assisting the accused Bijerk's legal team as an investigator, and a Mrs McCroary, have been charged with conspiracy to pervert the course of justice based on a number of matters. We have before us evidence of surveillance of at least one juror which became known because of the use of listening devices and an intercepted telephone conversation between the former detective and the accused Bijkerk. There is also material suggesting an approach by Mrs McCroary to another juror, based on a report from that juror.
9. The evidence is referred to in his Honour's judgment and indicates close surveillance by persons associated with at least one of the accused of jurors and, in particular, one male juror.
10. The Crown relies on the persistence of the conduct as indicative of a concern for any future trial. It also relies on the incident with the envelope which cannot be sheeted home in any way to either of the accused. However, the nature of the conduct is such as to indicate that some person, it doesn't matter whom, has a level of determination to abort the trial of these particular accused for this particular offence.
11. Before Flannery DCJ, and in this court, counsel representing the appellants and the applicants for leave to appeal accepted that the District Court had power to make the orders sought, but submitted that for various reasons the exercise of the court's discretion miscarried.
12. His Honour in his reasons referred to the decision in Mr C (1993) 67 ACR 562. His Honour applied the test that these powers should only be exercised in an "exceptional and special" set of circumstances. His Honour referred to the fact that there had been three trials, the fact that the witness whom his Honour took to be the principal Crown witness had been on protection for five years, the fact that four American witnesses had come to Australia upon a number of occasions and, plainly, his Honour recognised and gave weight to the specific circumstances in which the trial had come to be aborted on the third occasion. This appears to have satisfied his Honour that the "exceptional and special circumstances” test which his Honour postulated had been satisfied.
13. There were submissions made to this court which related to the media publicity, which is also the principal thrust of the second matter before the court. That matter is an application for leave to appeal from the further interlocutory judgment of Flannery DCJ yesterday, 28 April 1999, dismissing an application for a stay of proceedings, being either a permanent stay or alternatively a twelve months stay. There is, on this occasion, no certificate under s5F and accordingly leave to appeal is required.
14. The submissions made to this court state that the special arrangements proposed for the treatment of the jury would of themselves - and, alternatively, and perhaps cumulatively with certain media publicity to which I will presently refer - be such as to prevent the accused receiving a fair trial. The trial is listed to commence in the District Court on next Monday, 3 May. The media publicity relates to the circumstances in which what I have referred to as the third trial came to be aborted.
15. There were two articles published in each of the Daily Telegraph and the Sydney Morning Herald on respectively 10 November and 25 November 1998. The most dramatic headline, which appears in the Daily Telegraph of 10 November on its front page, says in large type "Jury stalked" and with a subheading "Judge forced to abort trial”. The circumstances of the third trial being aborted are set forth.
16. Amongst the matters which Christie DCJ is reported to have said is as follows:
"It leaves me not the slightest shadow of doubt that there is prima facie evidence people were targeting jurors or a particular juror in connection with this case and have been doing so since late October."

17. There is also a reference in the article to the fact that there were sixteen phone conversations between one of the accused men and two others, secretly recorded by the Australian Federal Police "during which the pursuit of jurors is discussed". There is also a reference in the article of that date in the Sydney Morning Herald to the first trial in which appears the following:
"The court was told that a previous trial of the two men had ended in controversial circumstances with a hung jury when one of the accused met briefly with one of the jury members in a shopping centre. "
18. In the articles of 25 November there is a reference to the charging of two persons with respect to the alleged interference with the jury and one of the persons is described in the following way:
"Police said in a statement that they believed he was working for the legal team of one of the defendants in the District Court trial".
19. The articles did not mention either accused, nor did they provide a description of the accused, let alone contain any photograph of the accused. They did, however, contain references to the nature of the trial which had been aborted, indicated that there were two accused and that the nature of the offence was a conspiracy to import cocaine.
20. The submissions made to this court on behalf of the accused focus on the dangerous quality of the publicity if it were linked by any juror or jurors to the accused in this trial, because it would create an impression in their minds that the accused were persons who could either directly, or through their dangerous criminal associates, engage in conduct designed to threaten or injure jurors or disrupt criminal proceedings, from which it was submitted that an ultimate inference could be drawn that they were either dangerous criminals themselves or had dangerous criminal associates. This would damage the presumption of innocence to which both accused were entitled as a foundation principle in their trial.
21. Furthermore, objection was taken directly to the special arrangements to be made for the transportation of the jurors and to the fact that in order (c) the trial Judge indicated he would lock them up when they retired to consider their verdict. It was submitted that these special arrangements would of themselves give rise to doubts of the accused in the minds of the jurors, as to why it was that they were being treated in this special way, with consequent inferences as to the nature of the accused and, perhaps, the conduct of which they were capable. However, that would be reinforced by reason of the publicity to which I have referred above, if they connected the reason for the special arrangements to the fact that this was a retrial of this earlier trial. It was submitted there was a real risk that there would be a course of inquiry or mental consideration by a juror or jurors that would give the jury a degree of disquiet which could only reflect adversely on the accused, either by reason of the special arrangements themselves, or by reason of the fact that those special arrangements triggered in one or more of the jurors a memory of the earlier publicity to which I have referred.
22. For those reasons the submission is made that this would damage the presumption of innocence to which the accused were entitled and, accordingly, deprive them of the fair trial to which they were also entitled.
23. It is, in my view, convenient to deal with the order identified as (a), with respect to the closed court, separately from the orders identified as (b) and (c), concerning special arrangements for the jury. In both cases, namely, the appeal and the decision to dismiss the application for a stay of proceedings, we are dealing with discretionary interlocutory orders. This court should only intervene if it is satisfied that the exercise by his Honour of the discretion he exercised miscarried, in accordance with well known principles restricting the intervention of this court with the exercise of such a discretion.
24. I deal first with the issue of the special arrangements for the jurors. These were seen by his Honour to be required primarily by reason of the attempt to interfere with the jury on the last occasion. It is not necessary to consider who had responsibility for that incident.
25. His Honour emphasised a number of matters in his judgment which indicated that there was a strong public interest in ensuring that a fourth trial not be aborted. Needless to say that public interest has to bear in mind the necessity that the trial that occurs be a fair trial.
26. The principal submission, as I have indicated, made on behalf of the appellants in this regard is that the special treatment of the jurors would derogate from the fair trial to which they are entitled as a matter of law, either directly or by reason of triggering the memory of the publicity of the aborted trial in November or by reason of a combination of those elements.
27. No doubt some jurors may be inconvenienced by the special treatment and perhaps some will be concerned as to why they are the subject of such special treatment. On the other hand, there is a strong public interest in ensuring that this trial does occur and is not aborted by reason of any conduct directed to interfering with the deliberations of the jury.
28. The circumstances of the third trial to which I have referred are significant. They are such as to create an apprehension that such conduct could recur. Plainly it created such an apprehension in his Honour's mind.
29. It is well within his Honour's discretion to make the two orders that are referred to in (b) and (c). In my view there is no proper basis for interfering with the exercise of his Honour's discretion on this occasion. His Honour specifically had in mind the possibility of a direction by the trial Judge to the jury as to the fact that special arrangements have to be made from time to time and that no adverse inference should be drawn with respect to the defendants. No doubt it would be proper for the trial Judge to make a direction of this or some character in the exercise of his discretion in this regard. It may be that some other formulation of words would be appropriate in order to minimise the adverse consequences that may flow, but do not necessarily flow, from the special treatment that is proposed. What direction should be given in this respect is a matter for the trial judge.
30. In this regard I note the observations of Gibbs CJ in the case of Smith (1985) 159 CLR 532 at 534 where, in the course of refusing special leave to appeal from an order of the trial Judge taking special precautions for the security of the jury, the then Chief Justice said this:
"When it is necessary for a trial Judge to take special precautions for the security of the jury (a situation which one would expect to be exceptional) the Judge should take special care to ensure that the precautions are no more obvious than is necessary, and that all possible steps are taken to avoid or mitigate the prejudicial effect which such precautions may have on the mind of the jury. It may in some cases be desirable for the Judge to advise the accused of the nature of the precautions or to warn the jury that they should not be influenced by the fact that the precautions were taken. But whether that will be so must depend on the circumstances of the case."

31. That remains the position and the trial Judge can direct the jury in order to avert any adverse consequences to the degree to which he is minded.
32. The views expressed by Gibbs CJ in Smith are consistent with the views expressed in Comerford (1998) 1 WLR 191. At 195 Lord Bingham of Cornhill CJ said:
"It is a truism that the jury is the linchpin of trial on indictments. The proper function of the jury is crucial to the fair and effective conduct of the trial. To that end the statute regulates the composition of juries, the selection of jurors and the challenging of jurors. To that end also, almost infinite care is taken in directing the jury on the proper approach to their task, on the relevant law and on the facts. But all these rules and procedures are rendered of little effect if the integrity of an individual juror, and thus of the jury as a whole, is compromised. Such a compromise occurs when any juror, whether because of intimidation, bribery or any other reason, dishonours and becomes liable to dishonour his oath as a juror by allowing anything to undermine or qualify the juror's duty to give a true verdict according to the evidence.

Intimidation or bribery of jurors is fortunately unusual, but cases do arise in which a defendant, or friends or associates of a defendant, or others with an interest in the outcome of a defendant's trial, seek to influence the jury's verdict by unlawful means. ...Where an attempt to nobble a jury is apprehended one possible response would be to dispense with the jury altogether in such a case, on the ground that any attempt to nobble a Judge sitting alone would be bound to fail. But that is not the response which we have adopted. Instead, when an attempt to nobble a trial jury is apprehended, the response has been to afford the individual jurors such level of protection as is judged necessary to protect them against any unlawful approach or communication, whether intimidatory or corrupt. The affording of such protection, however, when it comes to the knowledge of the jurors concerned (as with other than minimal protection it will) carries its own dangers. Despite judicial warnings that the affording of protection must not cause jurors to draw any inference adversely to the defendant, the defendant may fear that some jurors may be tempted to view with disfavour an accused person whose friends and associates are themselves thought likely to act in a criminal way. Alternatively, a juror who appreciates that protection has been given for his own safety maybe inclined to acquit to reduce any risk of personal mischief to himself. These dangers will deter a judge from ordering high level protection of a jury unless the Judge is convinced that there is a real and present danger of nobbling if protection is not given. But where such a real and present danger is perceived to exist the Judge is likely, in pursuance of his duty to ensure a just and effective trial and the exercise of his discretion, to order such protection, he will not knowingly accept a significant risk that the interests of justice may be defeated by a nobbling of the jury." (pp 195-196).

33. With these observations I agree. I note also that Flannery DCJ referred to this case in his reasons for judgment. His Honour was mindful of the principles expressed by Lord Bingham and, in my view, there is no doubt that all of these matters were considered by his Honour in exercising his discretion to make orders (b) and (c).
34. The order (a) made by his Honour directing proceedings to be held in camera was subject to "accredited members of the media and members of the legal profession" being permitted to be present. His Honour has not identified the process of accreditation or identification of members of the legal profession but no doubt the Sheriff could make appropriate arrangements.
35. In his judgment his Honour quoted from the case of Mr C supra at 564 to this effect:
"...this court has an inherent (or implied) power to make such an order where it is necessary that the public be excluded in order to ensure that justice is done in the particular case ....the authorities make it clear that the circumstances in which it would be appropriate for such a procedure to be followed in any case would have to be exceptional and special."
36. The reference to an inherent power is not appropriate in the case of the District Court, but a reference to an implied power is appropriate - see for example, Grassby (1989) 168 CLR 1 at pp 16-17. However, as I have indicated, no question of power has arisen on the submissions made to his Honour or to this Court.
37. The public interest in the open administration of justice has frequently been reiterated. The paramount duty of the courts in administering justice according to law is to ensure that justice is done. All else is subservient to the discharge of this duty. In the ordinary course, court proceedings are conducted in public and exposed to the catharctic glare of publicity. Publicity of proceedings is one of the great protections against the exercise of arbitrary power and a reassurance that justice is administered fairly and impartially. As Lord Hewart put it in R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, "Justice must not only be done but be seen to be done".
38. The courts should be open to all, so that anyone who wishes may see how justice is done. The privilege belongs to the public generally and no special privilege is conferred on those who report proceedings. In this regard I refer to the observations of Samuels JA in the case of David Syme & Co Limited v General Motors Holden Limited (1984) 2 NSWLR 294 at 310 where his Honour said:
"It is well established that in the ordinary course the courts will conduct their proceedings in public. It is fundamental that the courts should be open to all, in order that all who are minded to do so may see how justice is administered...that entitlement is not limited to those who have business in the courts as litigants; nor, I myself would add, does it confer any special privilege upon those who report proceedings for the press or electronic media. The privilege to see what the courts do and say belongs to the public generally".
39. It is only in wholly exceptional circumstances, where the presence of the public or public knowledge of the proceedings is likely to defeat the paramount duty of the courts, that the courts may proceed in camera.
40. In the present case the problem is that some malefactors closely observed the members of the jury, followed at least one of them to the suburbs and made contact with at least one other member. It was for that reason that the Crown submitted to his Honour, and submits to this court that the order (a) made by his Honour was appropriate. The submissions of the Crown also rely on the approach to the group of jurors and the handing over of the envelopes, on 6 November 1998. The Crown points in particular to the fact that the foreperson was singled out by the woman handing over the envelopes. It is submitted the most likely explanation for her being able to identify the foreperson is that she or those associated with her observed the jury from the public gallery during the trial and it is for this reason that the Crown has sought order number one, being the order I have referred to as (a).
41. In reply to the Crown's submissions, counsel for Richards indicated a particular concern with order (b) and (c) and, indeed, referred to the fact that the damage would be done once order (b) was made, an order with respect to special transport arrangements. At one stage he suggested there was no point in canvassing order (a), that the damage, he suggested, was done once a jury is subject to the special transport arrangements and that would either directly lead to the prejudice which he feared or, alternatively, would lead to the course of inquiry which would trigger the memory of the November publicity and in some fashion have the prejudicial effect which he feared.
42. Nevertheless the making of order (a) has given me some concern, by reason of the principle expressed by Samuels JA which I have quoted above and the overall significance of the open administration of justice.
43. In the course of the submissions in this court other options were canvassed which may mitigate the effect on these particular accused of order (a). The possibility was raised that the appearance of normalcy, in this respect at least, may be able to be restored by particular variations of the order - for example, permitting school groups to come in and out. In any event some appearance of normalcy would occur through the movements in and out of journalists or members of the legal profession.
44. All this does is to highlight the continued significance of the exercise of the court's discretion, the trial Judge's discretion, of minimising the impact of the special arrangements he has made in the course of the trial, by possibly varying order (a) from time to time on specific request, in order that that order would not give rise to the course of reasoning by members of the jury which the counsel for the appellants feared.
45. However, it is not only the interests of the particular accused that need to be considered in this case. There is also the public interest in the open administration of justice. This has given me some concern. However, on balance I am not prepared to say that the order made by his Honour, in the very special circumstances of this case, was not available to his Honour to be made in the exercise of his discretion. Accordingly in my view the appeal against the order (a) should also be dismissed.
46. I come now to the second matter that was before the court, namely the application for leave to appeal from the interlocutory judgment dismissing an application for a stay of proceedings. The basis of that application was the effect of the special arrangements for the treatment of the jury and certain media publicity to which I have referred. The two matters were said to justify a stay either separately or in combination. This matter only arises on the basis that the appeal against the actual orders made fails, although some submission may have been made to the effect that the publicity on its own would justify a short stay. However, if that submission was made, for reasons I will come to presently, it should be rejected.
47. In the context of giving my reasons with respect to the orders his Honour made for special treatment of the jury, I have indicated that they were proper and appropriate, particularly orders (b) and (c) were proper and appropriate in the circumstances of the case, and order (a) was within his Honour's discretion.
48. In many respects, far from being inconsistent with the applicants receiving a fair trial, the orders (b) and (c) were in fact required to ensure that the applicants received a fair trial in all the circumstances that have occurred in the previous trials. It is noticeable that the material sought to be placed before the jury on the last occasion was in fact directed to establishing the guilt of one of the applicants. It was such a crude attempt that the proper inference may be that it, in substance, was an attempt to abort the trial, rather than to poison the minds of the jurors in one direction, namely that of the guilt of one of the accused. Nevertheless, it is in the interests of the accused that no such communication with jurors be permitted. On the next occasion it may not be as plain and obvious as it appears to have been at the time of the third trial.
49. His Honour outlined, in his reasons for rejecting the application for a stay, that it was an inappropriate case to make such order. He particularly emphasised the fact that the articles did not publish the names of the accused and noted there was no other identification of them and no photograph or description of them. His Honour was entitled to take the view that he did in this regard.
50. It may be the case that some aspects of the media publicity are such as to enable a juror to reason in such a way as to link the circumstances in which that trial came to be aborted, with the trial that was now before them. However, in my view the connections after six months from specific references scattered throughout the body of the text are not such as to represent a risk of sufficient significance to justify a stay of this case, that has now been thrice tried and should be tried at the earliest possible opportunity.
51. His Honour referred to the relevant authorities, including authorities in which courts in recent years have emphasised the capacity of jurors to attend to the task before them with diligence, to reach decisions based only on the evidence before them and to observe any directions given to them by a trial Judge. I summarised those cases in my judgment in Bell (NSW CCA) 8 October 1998, including the observations in Glennon (1992) 173 CLR 592 at 603; Hinch v Attorney General of Victoria (No 2) (1987-88) 164 CLR 15, 74; Murphy (1988-89) 167 CLR 94 at 99; Yuill (1993) 69 A Crim R 450 at 453-454.
52. Flannery DCJ made reference to these cases and to my own observations in Bell and, as I did, specifically agreed with the view of Kirby ACJ in Yuill to the following effect:
"Courts will assume that jurors, properly instructed, will accept and conform to the direction of the trial Judge to decide the case solely on the evidence placed before them in the court: see Demirok (1977) 137 CLR 20 at 22. There is an increasing body of judicial opinion, lately expressed, to the effect that whatever pre trial publicity exists, jurors, when they take on the solemn responsibility of the performance of their duties in the court room, differentiate between gossip, rumour, views and opinion which they hear before the case and the evidence which they hear in the court in the trial for which they are empanelled. Judge Herron made observations in this case which indicate that such is his conviction and experience. His Honour's expression of opinion parallels that of many other judges."
53. In the present case, in the judgment from which leave to appeal is sought, Flannery DCJ adds his own experience to the list of judges who have expressed observations of this character. As his Honour put it:
"I share the views of Kirby J and others that jurors can be trusted to isolate what they have heard from quarters other than the court and obey directions to cure any problems".
54. One of the submissions made to this court was that, unlike earlier cases, it would not be possible for the trial Judge to direct the jury to ignore pre trial publicity because that may have the perverse effect of reminding them of it. It is difficult for the accused to maintain this position and at the same time say that the jurors would come to that conclusion by their own course of reasoning.
55. However, in my view, for the reasons expressed in the cases I have referred to, the direction to the jurors to adhere only to the evidence before them in the court is something which jurors observe and, if the risk exists of the character identified in submissions by counsel, then a direction of a general character would be appropriate and sufficient. If, however, for any reason the trial judge becomes of the view that a more specific direction is appropriate, making reference to the earlier publicity, and directing the jury to put it out of its mind, then in the discretion of the trial Judge that may become an appropriate direction.
56. However, in my view at this stage there is no reason to interfere with his Honour's exercise of discretion.
57. I note specifically in comparison with some of the media publicity that has been said to prejudice a fair trial, such as in the backpacker murders case, the Mr Bubbles case, the Anita Cobby murder, all of which I referred to in my judgment in Bell, and indeed the case of Phillip Bell himself, the publicity said to ground an application for a stay, even of 12 months, let alone a permanent stay, in the present case, was trivial. There was, in my view, no basis for making such an application in the light of the nature of the publicity. The fact that it was six months old, the fact that the accused was not identified and the fact that any juror who wished to associate that publicity, if he could remember it, with the present trial, would have to link a number of specific matters scattered in different publications together in order to draw the relevant inference, indicate that there was no basis for an inference that publicity of this character, either alone or in combination with the special orders made by his Honour, could impinge on a fair trial next week, let alone ever.
58. It is the practice of this Court to grant leave and to dismiss an appeal, even in cases wholly lacking in merit. This is to ensure that no further leave application can be made.
59. Accordingly the orders I propose are: With respect to the matter which his Honour certified as appropriate for the determination by this Court, that the appeal should be dismissed; and in the other matter that leave should be granted and the appeal should be dismissed.
60. GREG JAMES J: I agree with the judgment and reasons of the Chief Justice and the orders he proposes.
61. I would only add that these appeals concern interlocutory matters. The orders made by the trial judge were interlocutory. He may vary them at any time. He plainly considered them necessary, in the light of the exigency he held existed at the time at which he made them. He considered them necessary to protect the processes of the court to ensure a fair trial for all according to law, as far as it might be ensured in the events that were proved before him. He considered other possible courses. There is no reason to apprehend that his Honour was other than plainly concerned to avoid or minimize prejudice to the accused in the events that had arisen. I see no reason to apprehend he would not be continuously attentive to this requirement during the course of the trial, and prepared to amend the orders as might be necessary from time to time.
62. If in the upshot it should appear, notwithstanding the applications to this court and notwithstanding the making of the orders, that any miscarriage may have occurred, since these are interlocutory appeals the question of any further appeal after conviction is not necessarily closed; e.g. as in Maric v TheQueen (1978) 52 ALJR 631.
63. In the circumstances I am of the view that his Honour's orders not only were within his discretion, but plainly right.
64. SMART AJ: I agree with the judgments which have been delivered.
65. SPIGELMAN CJ: The orders of the Court are as I have indicated.
66. In the matter of Bell I indicated that anyone publishing the judgment I delivered in Bell, which was also a few days before the trial, should take great care in publishing it as there were a lot of media present on that occasion and not a word appeared the next day. I intend to take the same course here and indicate that they should take great care in publishing aspects of the judgment, particularly the aspect of the juror note.

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