R v William John Plunkett (Appellant) Nos. Sccrm-97-124, Sccrm-97-125 Judgment No. 6232 Number of Pages 19 Criminal Law

[1997] SASC 6232

IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA

DOYLE CJ, MATHESON AND OLSSON JJ

Criminal law - particular offences - offences against the person - other offences against the person - sexual offences - appeal against conviction, by a jury, of two counts of attempting to procure a person to become a common prostitute - manner in which a trial Judge should direct a jury when dealing with media reports, which make specific revelations concerning the accused prior to a trials commencement - article published in the newspaper prejudicial to the accused - whether this should have led to an adjournment of the trial - whether the proceedings should have been permanently stayed due to a lack of credibility of police witnesses - whether police evidence should have been excluded on the principle enunciated in Bunning v Cross (1977-1978) 141 CLR 54. Murphy v The Queen (1989) 167 CLR 94, applied. R v Karounas (1995) 63 SASR 451; Bunning v Cross (1977-1978) 141 CLR 50, considered.

ADELAIDE, 17 June 1997 (hearing), 1 July 1997 (decision)

#DATE 1:7:1997

#ADD 9:7:1997

Appearances:

Appellant William John Plunkett:

Counsel: Mr S Apps

Solicitors: Mr F Verlato

Respondent R:

Counsel: Ms W Abraham

Solicitors: DPP (SA)

Order: appeal dismissed.

DOYLE CJ

This appeal against conviction raises one issue on which views can easily differ, as the differing judgments of Matheson J and Olsson J show.

It is not necessary to repeat the facts. The other judgments in this case disclose the course that the trial followed, the contents of the article in "The Border Watch" that was published on the morning of trial, the ruling of the trial judge, the warning and the direction that he gave to the jury and his report to this Court. References to the relevant authorities are also to be found in the other judgments.

The issue on appeal is whether there has been a miscarriage of justice: s353(1) Criminal Law Consolidation Act, SA.

In this case, the issue can be stated more specifically. It is whether the publication of the article in "The Border Watch" gave rise to such a risk of prejudice to a fair trial of the appellant that, despite what the trial judge could say to the jury (and did say to the jury) to ensure that the jury was not influenced by inadmissible and prejudicial information about the appellant, the trial should have been adjourned so as to enable any effects of the article to be dissipated: see The Queen v Glennon (1992) 173 CLR 592 at 605 Mason CJ and Toohey J.

I accept that the article had the potential to prejudice a fair trial of the appellant. It referred to a charge that could be read as conveying sinister overtones. Although it was only a charge, and a charge that was withdrawn, it was withdrawn for reasons that did not dispose of the accusation. It was capable of causing the average person to doubt the character and credibility of the appellant.

I accept that in a country town like Mt Gambier, it was likely that some of the jurors would read the article before the trial concluded. "The Border Watch" is distributed widely in Mt Gambier. Jurors are drawn from that town and surrounding areas. "The Border Watch" was likely to be in the homes of some of the jurors.

The credibility of the appellant was important. As best I can ascertain, his defence raised the issue of whether he was endeavouring to recruit the women in question at all or whether he was, as he claimed, simply giving them information about the work of a person working in an escort agency.

I also accept that an adjournment of the trial would have been an adequate remedy.

But trials are not to be adjourned simply because material prejudicial to a fair trial is published at the time of trial. There is a clear public interest in the prompt trial of criminal charges. The relevant trial had already been delayed for quite some time. The relevant events occurred in August 1995. It first came before the District Court in April 1996.

The courts accept that from time to time jurors will acquire information about a case from sources outside the court, and that some of that information may be prejudicial to the accused. But the courts also accept that jurors will conscientiously address themselves to

their task, and that they will exclude from their minds the effect of such information. The courts must and do proceed on the basis that jurors will follow the usual instructions given to them to decide a matter on the basis of what is presented in Court; Glennon (supra) at 603 Mason CJ and Toohey J; at 615 Brennan J.

It follows that the publication of material prejudicial to the fair trial of an accused does not mean that a trial must be adjourned as a matter of course. The court must consider the nature and degree of the prejudice, the nature of the case, and the ability of jurors acquainted with the relevant material to put it out of their minds.

It is important to bear in mind, as Brennan J said in Glennon (supra) (at 614), referring to the various courses open to a trial judge:

"However, these protective mechanisms cannot guarantee perfect impartiality, as Mason CJ and Toohey J recognised in Murphy v The Queen ..."

In considering the issue raised by the complaint that the trial judge should have adjourned the trial, I have attempted to apply the principles stated by the High Court in Murphy v The Queen (1989) 167 CLR 94 and in The Queen v Glennon (supra). As to the latter case, I bear in mind that in that case the remarks were made in the context of a claim that the prejudice was such that the only remedy was a permanent stay of the charges against the accused.

In the light of all that, did the trial judge err? I express the matter that way, because one must remember that ultimately the question is whether the trial judge did err in the exercise of his discretion: Murphy at 101 Mason CJ and Toohey J, at 125 Deane J.

It was necessary for the trial judge to balance up, in the light of the above considerations, the desirability of the trial proceeding then and there, the likely prejudicial impact of the article, the effect of the warnings that he could give to the jury at the outset of the trial and in the course of his summing up and, of course, his ability to adjourn the trial. Another way of expressing the question is to ask whether he was entitled to conclude that if he were to proceed there would be a fair trial, meaning a trial conducted with all the safeguards that could properly be provided, bearing in mind the alternative of an adjournment: Glennon at 615 Brennan J.

In the end I have come to the conclusion that I am not able to say that the trial judge was wrong. He had regard to the relevant principles. In that regard, I refer to his ruling and to his report to this Court. There were solid arguments favouring an adjournment, and solid arguments favouring proceeding with the trial. As Matheson J says, the case is a borderline one. I think that I would have granted an adjournment. But there is no error of principle in the trial judge's approach, and I am unable to say that the circumstances so clearly favoured an adjournment that his decision must be wrong.

Accordingly, I would reject this ground of appeal. On the other grounds of appeal, I have nothing to add to the reasons given by Olsson J.

It follows, in my opinion, that the appeal must be dismissed.

MATHESON J

I have had the advantage of reading the reasons for judgment of Olsson J. I gratefully adopt his summary of the facts. I agree with what he has said on all grounds of appeal with the exception of the ground alleging that the learned trial Judge erred in refusing to adjourn the trial in consequence of the article of the Border Watch newspaper. I would reject that ground also.

I propose to start by referring to the history of the information herein. It first came before his Honour Judge Anderson at Mount Gambier on 9 April 1996. Both the appellant and his wife Sally Jane Plunkett were formally arraigned and pleaded not guilty to both charges. On that date the matter was made a remanet, and transferred to the Supreme Court for hearing during the Mount Gambier Circuit Sessions commencing on 6 May. It actually came on for hearing before me on 6 May, and by consent it was transferred back to the District Court for hearing. On 22 July it came before his Honour Judge Lee, and on 24 July various applications were made, including an application by the prosecutor for a change of venue to Adelaide. Mr Smart, who then appeared as counsel for the prosecution, said to his Honour:

"The matter can't proceed in this circuit obviously because of the problem with the transcript. What I have suggested to my friends is that the application I make is that the matter or matters be removed to Adelaide, to be heard in Adelaide. It seems that your Honour is now part-heard in the matter. All of the witnesses are from Adelaide. It would best suit the convenience of counsel if the matter is heard in Adelaide. As concerns the accused, of course, I can't speak for them. It does occur to me that there is a better prospect of getting an unaffected jury in Adelaide than there would be here, since apparently Mr and Mrs Plunkett are local identities of some sort."

Counsel appearing for Mrs Plunkett said that his client desired a trial in Adelaide. Mr Apps, who appeared for the present appellant, said that his instructions were to oppose the application. In his ruling on 25 July, Judge Lee said:

"Counsel for the prosecution applies for a change of venue to Adelaide. Although power to make the order is provided by s.22 of the District CourtAct, I would need more information than counsel's bald assertion from the bar table that the accused are well known in the town. In any event, the prosecution will need to reconsider its application in light of my order that there be separate trials of the accused. I reserve to the prosecution liberty to renew the application in due course if so advised."

His Honour made the matter a remanet, and it came on before Debelle J at Mount Gambier on 8 October. He transferred the matter to the next sitting of the District Court in Mount Gambier. It came before his Honour Judge David on 13 November at a call-over in Adelaide. He made the matter a remanet to the Mount Gambier Circuit Sessions commencing on 24 February 1997, and that is when the matter came on before his Honour Judge Wilson, having already been "adjourned" five times.

In his ruling on 18 March, his Honour said: "Before a jury was empanelled this morning, an application was made to me, by the defence, to make an order that the trial of the accused be adjourned, presumably to a later sittings of this court.

The application was based upon the fact that an article appeared in this morning's issue of the Border Watch, that is to say, dated Tuesday, 18 March 1997, which, in the submission of Mr Apps, for the accused, would involve grave risk that many jurors would, if they had read that article, be severely prejudiced, or would be affected by what they had read and that this would involve a severe prejudice to the accused.

The Crown opposed the application, and pointed out that the matter could be cured by an appropriate direction.

This matter calls for the exercise of my discretion. It is necessary for me to balance competing interests. In all the circumstances, I have decided not to grant this application, and the trial will proceed.

I bear in mind that this sort of situation has been considered in a number of authorities, including the recent decision of the Court of Criminal Appeal in R v Karounos (1995) 63 SASR 451.

[He then quoted portion of the judgment of King CJ at p463 which is cited in the judgment herein of Olsson J, and continued]

I consider that this is a matter for a full and careful direction and that that will suffice in the interests of fairness and justice.

I refuse the defence application."

In his report to this court, his Honour said: "It appears that the Crown had earlier made an application (on 24th July, 1996) for a change of venue to Adelaide upon the grounds inter alia that the appellant was a well-known local identity in Mount Gambier and that a trial in Adelaide would involve a lesser risk of the appellant being tried by an 'affected jury' (see p.150 of transcript dated 24th July, 1996). It further appears that that application was opposed by the appellant. It is not clear to me whether that application for a changed venue was, in fact, finally heard and determined. [It would appear that it never came on for further hearing.]

This matter had previously been before His Honour Judge Lee at a previous circuit sittings in Mount Gambier commencing on 23rd July, 1996, and some pre-trial rulings had been made; I considered it to be undesirable that the trial be delayed any further unless for good reason.

I considered that any prejudice to the appellant arising from the article appearing in The Border Watch could (and should) appropriately be overcome by what I said to the jury panel (see pages 14-17) and by what I tried to ensure were 'full and careful directions' that were given by me to the jury in my summing-up (see page 2) which followed my remarks to the jury panel ...

I considered the various authorities including R v Karounos (1995) 63 SASR
451 and R v Von Einem (1991) 55 SASR 199 per Duggan J at pages 210 to 212. I was (and remained) of the opinion that the remedies of 'express directions to the jury to exclude from their minds anything they (might) have heard outside the courtroom' and 'the machinery' of granting an opportunity for potential jurors to seek to be excused were sufficient to ensure a fair trial (see Murphy v The Queen (1989) 167 CLR 94 per Mason CJ and Toohey J at p.98)."

I propose to refer to some additional authorities to those referred to by Olsson J. He has quoted a passage from the judgment of Mason CJ and Toohey J in Murphy v The Queen (1989) 167 CLR 94. I add the following passage from their joint judgment at p101:

"A decision as to the proper course to take in such circumstances must be one for the trial judge. That is not to suggest that the decision is not reviewable; but it is to accord full weight to the position of the trial judge who, generally, is in the best position to assess what the interests of justice demand and, by appropriate steps, to try to ensure that an accused receives a fair trial. It may be said that there can be no guarantee that directions given by a trial judge in an effort to counter the effect upon a jury of media publicity will be successful. That is true just as it is true that there can be no guarantee that a juror may not have been influenced by other matters of which he or she has heard before the trial. But, putting to one side for a moment the question of challenge for cause, which is the subject of a separate ground, there is no reason why this Court should conclude that Maxwell J. erred in the exercise of his discretion when he declined to adjourn the trial again. The first ground is accordingly not made out."

The other three members of the court agreed that the trial Judge (Maxwell J) had not erred in the exercise of his discretion. At p125 Deane J said:

"In all the circumstances, the decision to refuse the adjournment was plainly open to the learned trial judge in the exercise of what was a discretionary judgment. It has not been suggested that the vigorous directions which his Honour gave in a sustained endeavour to overcome the risk of prejudice through extraneous information were other than appropriate to the circumstances."

I also refer to The Queen v Glennon (1992) 173 CLR 592. In their joint judgment at pp603-604, Mason CJ and Toohey J said: "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 p74, 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, we stated ((1989) 167 CLR 4, at p99; see also Reg. v. Von Einem (1990) 55 SASR 199, at p211):

'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 p291: "In this era of rapid dissemination of news by the various media, it would be naïve to think that in the case of a crime involving considerable notoriety, it would be possible to select twelve 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.

After the jury had been empanelled, the trial judge instructed them in these terms:

'Because you sit as judges of the facts, you are, not unnaturally, expected to behave as a judge is expected to behave and that is to decide the case before you according to the evidence. You have sworn to do so and that is your duty. That means that you put out of your mind such matters as prejudice, sympathy or bias or any other emotive consideration. What we ask of you is the academic exercise of bringing your minds to bear upon the evidence as it unfolds before you.'

At the commencement of his charge to the jury, the trial judge instructed them in similar terms. 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.

Knowledge of an admissible[sic] prior conviction for a similar offence stands in a different position from other prejudicial information. 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 our criminal law (Maxwell v. Director of Public Prosecutions, [1935] AC 309 at p317). And the wrongful reception or transmission of such evidence by or to the jury is calculated to set the prospect of a fair trial at risk. It is then for the trial judge to decide whether it is necessary to discharge the jury in the interests of securing a fair trial (Reg. v. George (1987) 9 NSWLR 527, at p533) and, if the trial proceeds and results in a conviction, for a court of criminal appeal to decide whether the accused has been deprived of a fair trial. But it is important to distinguish between cases in which the jury are made aware of a prior conviction during the course of a trial and cases in which such awareness is not established."

And then at pp605-606, their Honours said:

"And a court of criminal appeal, before it will set aside a conviction on the ground of a miscarriage of justice, requires to be satisfied that there is a serious risk that the pre-trial publicity has deprived the accused of a fair trial. It will determine that question in the light of the evidence as it stands at the time of the trial and in the light of the way in which the trial was conducted, including the steps taken by the trial judge with a view to ensuring a fair trial."

Brennan J, as he then was, said pp614-615: "... the trial judge is given powers to adjourn the trial until the influence of prejudicial publicity subsides and is required to direct the jury that their verdict must be based on the evidence given before them on the trial and that, in reaching their verdict, they must disregard knowledge otherwise acquired and any revulsion against or sympathy for the accused. The trial judge may conduct the trial in whatever manner is appropriate (within the ordinary procedural constraints) to counter the effect of pre-trial publicity prejudicial to an accused. However, these protective mechanisms cannot guarantee perfect impartiality, as Mason C.J. and Toohey J. recognized in Murphy v. The Queen (1989) 167 CLR, at p101:

It may be said that there can be no guarantee that directions given by a trial judge in an effort to counter the effect upon a jury of media publicity will be successful. That is true just as it is true that there can be no guarantee that a juror may not have been influenced by other matters of which he or she has heard before the trial.'

Of necessity, the law must place much reliance on the integrity and sense of duty of the jurors. The experience of the courts (Reg. v. Vaitos (1981) 4 A Crim R 238; Reg v Gallagher (1987) 29 A Crim R 33, at p41) is that the reliance is not misplaced. In Munday (1984) 14 A Crim R 456 at pp457-458, Street C.J. repeated an unreported passage from one of his Honour's earlier judgments:

'"... it is relevant to note that the system of jury trial is geared to enable juries to be assisted in every possible way to put out of mind statements made outside the court, whether in the media or elsewhere. There is every reason to have confidence in the capacity of juries to do this. Judges do not have a monopoly on the ability to adjudicate fairly and impartially. Every Australian worthy of citizenship can be relied upon to discharge properly and responsibly his duty as a juror. Particularly is this so in the context of being one of a number or group of others all similarly charged with this responsible duty. I have great faith in the multiple wisdom and balance reflected in the verdict of a jury..".'

If the courts were not able to place reliance on the integrity and sense of duty of jurors, not only would notorious criminals or heinous crimes be beyond the reach of criminal justice but there would have to be a change in venue for many trials now held in circuit cities or towns where knowledge of the crime and of the alleged criminal easily acquires a wide currency outside the courtroom. Our system of protecting jurors from external influences may not be perfect, but a trial conducted with all the safeguards that the court can provide is a trial according to law and there is no miscarriage of justice in a conviction after such a trial."

Dawson J agreed with the judgment of Brennan J. I also refer to a decision of the Court of Appeal of Queensland in the case of Terence Murray Lewis
(1992) 63 A Crim R 18. The appellant was the former Commissioner of Police and had been convicted by jury on fifteen counts of official corruption. It was argued that the pre-trial publicity adverse to the appellant had produced a miscarriage of justice. Pincus JA in a judgment with which, on this aspect, Macrossan CJ and Byrne J agreed, said at p37:

"Counsel for the appellant contended that the situation was unique, that the appellant could never have a fair trial, that no adjournment, however long, could have helped, that a permanent stay should have been granted and the appellant was entitled in this Court to a verdict of acquittal.

As has been mentioned, the judge rejected similar contentions below, on the ground that the proper course was to endeavour to ensure a fair trial by appropriate directions. That he gave such directions is not in dispute, but the appellant says that the jury was so gravely prejudiced against him that nothing the judge said, however strong and emphatic, could achieve a fair trial.

The judge appears to have paid careful attention to the considerations put before him in favour of the contention that it was necessary to question prospective jurors and on the application for a stay. His Honour's conclusion that the problem could and should be handled by giving directions was a discretionary one. As appears from the remarks made by members of the High Court in the two decisions discussed below, this is an important element to be kept in mind when considering the validity of the appellant's attack on the judge's ruling ...

The trend of authority in Queensland is against the appellant. In Stuart and Finch the Court of Criminal Appeal approved the course taken by the trial judge of refusing, as the judge did in this case, to allow questioning of jurors with a view to supporting challenges for cause. The case concerned a mass murder which received enormous publicity; the circumstances were such that there must have been considerable animus against the accused persons within the community, including the jury. A second authority illustrating the position is Convery, Hapeta and Jones (unreported, Court of Criminal Appeal, Qld, Connolly, Carter and Moynihan JJ, 13 October 1989). In that case, on the very day on which the jury convicted Hapeta of unlawfully trafficking in heroin and unlawfully having heroin in possession, there had appeared an article in the Courier Mail displaying photographs of persons said to be Sydney criminals, including Hapeta, whose photograph was captioned 'Hapeta ... vice empire'. The article, in the Court's view, presented "Hapeta in a very poor light and ... was calculated to prejudice his fair trial'. The trial judge had declined to discharge the jury and instead gave them a further warning not to have regard to matters heard outside the Court. After citing authority in favour of the view that there is 'every reason to have confidence in the capacity of juries' to ignore such matters, the Court of Criminal Appeal held that the judge had not been shown to have erred in the exercise of his discretion. In that case, Hapeta's complaint was somewhat weakened by the fact that the article had not asserted that he was involved in the drug trade, but said that his 'vice empire' was based on prostitution; he had given evidence that he was a brothel keeper."

His Honour then referred to the High Court decision in Murphy and at p40 said:

"The High Court's remarks support the view that, at least in some circumstances, an accused must be content with a trial in which the court does the best it can for him by way of directions, without producing any certainty that preconceptions derived from media treatment of the facts of the case will be utterly dispelled by the time the jury comes to consider its verdict. Were that no so, then it might be impossible lawfully to try a person such as Jack Ruby, whose crime was witnessed by millions on television. It may be that if adverse publicity is deliberately generated by persons for whom the Crown should properly be held responsible, then justice would require that a permanent stay be granted; otherwise, it is not easy to imagine circumstances in which publicity before or during a trial could entirely prevent the pursuit and eventual completion of a prosecution: cf Jago v District Court (NSW)
(1989) 168 CLR 23 at 47; 41 A Crim R 307 at 324."

His Honour then referred to the High Court's judgments in Glennon (supra), and at p41 he said:

"The present case has in common with Glennon that the question is whether a discretionary judgment reached below should be reversed; here, as in Glennon, it does not appear that any error of principle can be pointed to as a ground of attack upon the treatment of the matter by the trial judge."

At p43, he concluded: "Nothing more could have been done by the judge to focus the jury's attention on the evidence before the Court and to induce them to ignore all prior knowledge. His Honour thought the proper response to the difficulty was to give directions and no ground has been shown to justify interference with this discretionary judgment.

This branch of the appellant's argument must be rejected."

I add a reference to the decision of the Western Australian Court of Criminal Appeal in Connell v The Queen (No 6) (1992) 12 WAR 133, especially at p151.

Olsson J has quoted the article in the Border Watch. I do not underestimate the strength of the submission made by counsel for the appellant to the trial Judge, but the article had features which should not be overlooked. The character of the charges that were withdrawn, namely threatening life, was very different to the charges facing the appellant. Moreover, the report said they were withdrawn. He had not been convicted of them. The report stated that the complainant laughed as she left the court which rather suggested that she may not necessarily have treated the circumstances very seriously.

The Crown case here was a strong one. What the appellant said at the interview he had with two undercover women police officers irresistibly pointed, in my view, to the appellant's guilt. He has not asserted the tape is inaccurate. The trial Judge's summing up was painstakingly clear and fair. There has been no complaint made about what he said or did not say. Before the trial started and during his summing up, his Honour stressed in a clear and emphatic way to the jury the importance of deciding the case only on the evidence - Olsson J has quoted those passages - and he stressed the presumption of innocence. The alleged crimes were far from trivial, but they were not grave crimes like rape or armed robbery. There had already been many adjournments and four police officers had travelled from Adelaide. Some of these factors may not have been of great importance but the cumulative effect of them could not be ignored.

I acknowledge that this case is a borderline one. Another judge may have granted an adjournment. Another judge may have grasped the nettle and referred to the article whilst stressing that the charges were withdrawn. Having anxiously considered the matter, I am not satisfied that his Honour's discretionary judgment was wrong, or that the appellant was deprived of a fair trial or that the ruling led to a miscarriage of justice.

I would dismiss the appeal.

OLSSON J

This is an appeal, by leave, against the conviction of the appellant, by unanimous verdict of a jury, of two counts of attempting to procure a person to become a common prostitute. It was alleged that the offences both occurred on 25 August 1995 at Mount Gambier and involved Julie Anne Worthley and Kylie Louise Walsh, who were both undercover police officers.

The specific grounds of appeal relied on by the appellant were expressed as under - "* The learned trial judge erred in that he refused to adjourn the trial, before the trial had even started, despite an article in The Border Watch newspaper. As a result, the jury was likely to have learned of another incident in which the accused was allegedly involved, which was gravely prejudicial to the defendant, and he could not as a result thereof have received a fair trial. (transcript of evidence pages 1 to 12, rulings transcript pages 1 and 2);

* The learned trial judge erred in refusing to grant a permanent stay of proceedings after he had in effect found that the police witnesses who were essential to the prosecution case was [sic] dishonest. A Court should not as a matter of public policy entertain such evidence; it is an abuse of process. (transcript of evidence pages 17 line 29 to page 69 line 9, ruling transcript pages 1 to 5, in particular paragraph beginning at the bottom of page 2 ending at the top of page 3 and further second paragraph on page 5);

* The learned trial judge erred in that he refused to exclude from evidence the transcript of conversations allegedly recorded by concealed listening devices. (transcript of evidence page 17, line 29 to page 69 line 9, ruling transcript page 1, in particular the last paragraph.)"

I first attempt a brief summary of the relevant narrative facts.

Evidence was led to the effect that, on 24 August 1995, the two police officers were booked into Room 3 at the Arkana Motor Inn at Mount Gambier. In that room was a tourist map which had printed on it various business advertisements.

As appears from exhibit P1, one of the advertisements (excluding its diagrammatic element) read as follows -

"Blue Lagoon Visiting Escort Agency Servicing the Green Triangle:-24 Hrs. Ph: 018 849 619 Have You Got COVERING a Dream Mt. Gambier * Nurse Millicent * School girl Naracoorte * French maid Kingston * Chinese Portland * Bikie Bitch Hamilton We Can Make Casterton It Come True Warrnambool MALE AND FEMALE STRIPPERS"

Constable Walsh placed a call to the telephone number referred to in the advertisement, as a consequence of which the appellant's co-accused (his wife Sally Plunkett) called at Room 3 at about 6.00 pm. At that time Constable Walsh had affixed to her person a monitoring device which transmitted conversations in which she engaged to a tape recording device in a nearby room.

It appears that, on that occasion, Constable Walsh enquired whether there was any escort work available. Inter alia, either she or Constable Worthley, who was also present, said that they wanted to meet the appellant, because Constable Worthley had had "heaps of hassles" with a previous employer. The outcome was that an arrangement would be made for the appellant to call at the motel room the next day.

After two further telephone conversations the next morning (both being between Constable Walsh and the appellant's wife) the appellant came to Room 3 at about 11.00 am. He there spoke with both Constables. The conversation was taped without his knowledge.

In my view it is unnecessary to review the content of the taped conversation in detail. Suffice it to say that it proceeded on the basis that the appellant is said to have impliedly offered the two women work in his business as "call girls" on the basis that he provided "condoms and lubes and basically everything"; and that they were entitled to retain all tips above the normal price of $100 for half an hour. He described how the business provided the vehicle and driver and, as appropriate, travelled to towns in the district. The driver had a responsibility to protect the girls. In effect he said that, if the two women were interested he would arrange for his wife to come and see them again and talk about detailed arrangements. He emphasised that the business had to be run on the basis of selling "company" rather than "sex".

The discussion concluded on the basis that the Constables were to telephone Mrs Plunkett a little later that day.

The appellant was arrested shortly after he left the motel room.

The appellant's premises at 22 Heath Street, Mt Gambier, were searched the same day. In addition to various promotional items, police found a number of bottles of personal lubricant, seven boxes of condoms and four dildos.

Mrs Plunkett was also arrested and searched. Pages from a notebook in her possession (exhibit P12) contained a tabular record showing days or dates, a name, an address, a time, a cost expressed in dollars and a girl by name alongside those headings.

Against that background I now turn to the specific grounds of appeal.

It was common ground that, on the morning of the first day of the trial, the "Border Watch", a regional newspaper published and circulated in and around Mount Gambier, carried the following news report - "NEWS FROM THE COURTS

Death threat claims withdrawn because of stress, court hears

The only reason a young mother withdrew her claims that a man had made death threats against both her and her young children was 'because of stress', Mount Gambier Magistrates Court has heard.

At court last Thursday, William John Plunkett, 35, was listed to face two charges of threatening life which he allegedly committed on November 22 last year in Mount Gambier.

He sat quietly beside his wife, Sally Jane Plunkett, in the main body of the court last Thursday morning as the matter was heard by Magistrate, Mr W Ackland.

Police prosecutor, Acting Senior Constable J Raison, said police had already tendered declarations to the court but the alleged victim, Ms Alicia Baldwin, wanted to withdraw the charges.

Acting Sen Const Raison successfully applied for evidence to be heard in open court from Mrs Baldwin 'with a view to dismissing the information (of the charges)'.

Ms Baldwin, 22, then took the stand and swore her oath to tell the truth to the court.

Under questioning by Acting Sen Const Raison, she agreed she had reported to police that an alleged incident had happened at her home on November 22 last year involving Plunkett.

Ms Baldwin said she had told officers that both her life and those of her children had been threatened by Plunkett.

She said on Thursday that she would no longer give evidence to support those claims 'of my own free will'.

Ms Baldwin said she had not been threatened or induced not to proceed with her allegations.

Mr Ackland told Ms Baldwin that he was concerned about her decision.

He said he 'simply did not know' if Plunkett had made the threats but if he were to make threats against Ms Baldwin and her children 'assuming that he did - and there are a lot of ifs in this', she could 'not really expect the police to intervene on your behalf'.

Ms Baldwin said she had thought about that and added that 'the only reason' she was withdrawing her evidence was because of the stress she and her baby were undergoing according to her doctor's advice.

As she left the witness box, she motioned to a friend holding a baby in the court room and said 'come on let's get out of here' and laughed.

Mr Ackland dismissed the charged 'for want of prosecution'."

Before the jury was empanelled, counsel for the appellant drew the attention of the learned trial Judge to the article and asked that the trial be adjourned, because of what was argued would be the incurable prejudice that the publication of the article would have had on potential jurors. On the basis of what fell from King CJ in R v Karounas (1995) 63 SASR 451, the learned trial Judge declined to accede to that request. He said that, in his view, a full and careful direction from him to the jury in relation to the matter would suffice to overcome any possible prejudice.

Before a jury was selected, the learned trial Judge spoke to the panel about the need for members of it to disqualify themselves if any of the principal participants was personally known to them. He explained what he meant by that in some detail.

The transcript reveals that, after the names of prospective witnesses had been read out in accordance with the practice of the court, several jurors approached the Bench and spoke with him. He is recorded as then saying to the panel - "HIS HONOUR: There is one other matter that I wish to raise before we conclude this part of the case and I indicate which potential jurors will be excused. You were told, ladies and gentlemen, during the general opening, that is to say when I spoke to all of you at the commencement of these sittings, something along these lines, that you must, as a juror presiding over a trial, weigh and consider the evidence in the trial without being affected by sympathy or prejudice, that you must adopt a dispassionate view of the evidence and you should decide the case before you on the evidence and the evidence alone. You were no doubt told that you should put out of your minds anything that you may have seen or heard outside this courtroom and that you should ignore anything that you may have seen or heard outside the courtroom.

It is your responsibility, as jurors, to apply the law to the facts in the case. You should decide the case on the evidence and the evidence alone.

Ladies and gentlemen, I want you to listen carefully. If you know anything about any of the principal participants in this trial, that is the accused, a witness or any other principal participant for that matter, that means that you could not bring a fair and unprejudiced mind to your responsibilities as a juror, then you should also seek to be excused."

No further comment was thereafter made by him which in any way specifically adverted to the newspaper report.

A jury was duly empanelled and the trial proceeded. In the course of his summing up the learned trial Judge said to the jury - " You should adopt a dispassionate view of the evidence and you should decide the case on the evidence alone.

You should put out of your minds anything you may have seen or heard or read about this case, or about any of the principal participants therein, outside this courtroom.

You should ignore anything that you may have heard by way of comment by members of your families, your friends or acquaintances. You should disregard anything that you may have read in the newspapers, or heard on the radio, or seen and heard on television about this case, or about the accused, or about any of the other principal participants in the trial.

You should apply the law to the facts of this case. You should decide the case on the evidence that you have had placed before you in this court room, and the evidence alone."

Once again no specific reference was made to the actual report published in the "Border Watch".

In essence the appellant complains that the course adopted by the learned trial Judge was, manifestly, inadequate to overcome the prejudice arising from the report. Indeed, his counsel went so far as to submit that such was the situation at the time that the prejudicial effect of the report was incapable of cure by any general direction.

As Duggan J pointed out in granting leave to appeal on this ground, each case must be decided on its own facts and only limited assistance can be derived from other decided cases.

I agree with Mr Apps, of counsel for the appellant, that the case of Karounas is of no real assistance for present purposes. It arose from a fundamentally different state of facts and bore on a situation in which, by virtue of her work environment, a juror knew of the accused, although she did not know him personally. In the circumstances King CJ had this to say - " I think that courts should be slow to attribute to the reasonable observer an apprehension that a juror will be influenced by things heard outside the court. Jurors nowadays are free to lead their ordinary lives when not sitting in court. They are rarely locked up during a trial. They are exposed to media reports and to ordinary social intercourse. They will inevitably hear comments about the case and the persons involved. Such exposure may be minimised by the usual warnings to avoid discussing the case with persons other than fellow members of the jury, but it will often be impossible to avoid hearing some comment from family, friends and fellow workers. In most instances the reasonable observer would be prepared to accept that a juror will heed the directions to ignore anything seen or heard outside the court and to decide the case according to the evidence. Most jurors are sensible enough to realise that comments outside the court may not be soundly based and that the only safe guide is the evidence in the case. If juries or jurors were discharged every time a juror were sufficiently candid as to disclose that a comment had been made outside the court, few trials would be safe. I suspect that jurors simply ignore anything heard outside the court and do not report it.

The unusual feature of this incident is that the juror was sufficiently conscientious to report it. I get the impression from the transcript that she did so not because she doubted her own capacity to bring an impartial mind to bear, but because she feared that her continued presence on the jury might jeopardise the trial. There is considerable reassurance in her possession of such a highly developed sense of responsibility. The fair minded observer would take all those matters into account and would also be influenced by 'the opinion of the judge - the person on the spot - that the juror would be able to approach the issues dispassionately' and 'would assume that the juror would do her best to follow the judge's direction ...': Webb v The Queen (at 56), per Mason CJ and McHugh J. The learned judge gave the following direction:

'You must weigh and consider the evidence without being affected by sympathy or prejudice. You should adopt a dispassionate view of the evidence, and you should decide the case on the evidence, and the evidence alone. You should put out of your minds anything that you may have seen or heard outside this courtroom. You should ignore anything that you may have heard by way of comment by members of your families, your friends, your acquaintances. You should apply the law to the facts in this case. You should decide the case on the evidence, and the evidence alone.'

I think that the judge's decision was correct."

All that need be said is that the issue in that case did not bear upon a factual situation as remotely prejudicial as that in the instant case. The general remarks made by King CJ must be read in that light.

In Karounas the knowledge of the juror amounted to no more than the fact that she worked in a government department that, she understood, had had dealings with the accused in regard to some industrial matters quite unrelated to the criminal proceedings. At worst, she had heard some jocular remarks made about him in that regard.

By way of contrast, the newspaper report in the instant case bore, in what was a potentially highly prejudicial manner, on matters which could be perceived as being quite sinister and, by inference, possibly related to the type of business which he was said by the prosecution to have been conducting.

The problem faced by the learned trial Judge was that any direct reference to the article could have served to emphasise the possible sinister implications arising from it. On the other hand a more oblique reference would, as a matter of plain common sense, have done little to ensure that potential or actual jurors would simply put it out of their minds. It may well have been that the less of two evils would have been to make specific reference to the report which, in the normal course, would probably have come to the attention of many of the jury.

It requires little imagination to conclude that, in a regional centre such as Mount Gambier, the content of the report was likely to be widely read and/or known.

Ms Abraham, of counsel for the respondent, sought to support the stance adopted by the learned trial Judge both by reference to what fell from King CJ in Karounas and also to dicta in Murphy v The Queen (1989) 167 CLR 94 at 98-9. In their joint judgment in the latter case Mason CJ and Toohey J said - " It is fundamental that, for an accused to have a fair trial, the jury should reach its verdict by reference only to the evidence admitted at trial and not by reference to facts or alleged facts gathered from the media or some outside source. However, the might of media publicity in 'sensational' cases makes such a pristine approach virtually impossible. Recognizing this, the courts have used various remedies such as adjournment, change of venue, severance of the trial of one co-accused from that of the others, express directions to the jury to exclude from their minds anything they may have heard outside the courtroom and the machinery of challenge for cause.

It may be that in a particular case none of these remedies will be fully effective. 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:

'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.'

It is now just over 100 years since Waite C.J. commented in Reynolds v. United States (1878) 98 U.S. 145:

'In these days of newspaper enterprise and universal education, every case of public interest is almost, as a matter of necessity, brought to the attention of all the intelligent people in the vicinity, and scarcely any one can be found among those best fitted for jurors who has not read or heard of it, and who has not some impression or some opinion in respect to its merits.'

Intelligence and literacy are not necessarily synonymous but the message is clear.

The importance of a fair trial to an accused must not be underestimated. But it is not the only consideration. It is important that anyone charged with a criminal offence be brought to trial expeditiously. Not only is that in his or her own interest but it is in the interest of witnesses and also, in cases such as the present, in the interest of the family of the victim. It is inimical to the orderly disposition of the work of the courts that trials are adjourned unnecessarily. As Maxwell J observed when declining to order a further adjournment of the trial of the accused, the trial would continue to attract great publicity whenever it was heard."

With respect, one can scarcely gainsay the logic of that approach. However, there is, in my view, a world of difference between general comment about a case which attracts widespread general public interest, on the one hand, and a situation in which, on the other, a media report makes a revelation of specific information about an accused which would plainly have been inadmissible at trial and is likely to be highly prejudicial in relation to the very issues to be addressed by the jury.

It would have been a simple and not unduly inconvenient approach to adjourn the trial (preferably to a sittings in Adelaide), when the media item would have receded into the past so as not, acutely, to bear on the trial of the appellant. It was the timing of the publication in relation to the commencement of the trial and its venue which was the critical factor in this case.

In my opinion the learned trial Judge was unduly overborne by the desire to dispose of his list. I consider that the direction which he gave was no remedy for the serious prejudice which undoubtedly arose. I conclude that this ground of appeal has been made good and is sufficient to vitiate the trial.

However, lest I be considered incorrect as to that conclusion it is desirable that I also direct attention to the other pleaded grounds of appeal.

The second ground of appeal requires some reference to the past history of the proceedings.

The matter had apparently come before Lee DCJ at an earlier sittings of the court, at which time there had been a voire dire concerning the proposed police evidence; and an application to sever the trial of the appellant and his wife, who had been named as a co-accused in the relevant information. At the time Lee DCJ had made findings adverse to the credibility of the police witnesses.

On the basis of those findings counsel for the appellant, inter alia, made application for a permanent stay of the prosecution on the ground that it was an abuse of process. Alternatively, he sought an exclusion of the police evidence on the principle enunciated in Bunning v Cross (1977-1978) 141 CLR
54.

In essence, it had, initially, been claimed by police witnesses that the sole purpose of recording the conversations in Room 3 was for the purpose of protecting the female police officers, whereas it ultimately became clear that the real intention was to record what was said for evidentiary purposes in a manner which was (incorrectly) argued by the defence to have infringed section 4 of the Listening Devices Act. In the event Lee DCJ held that section 4 of that Act was inapplicable and that the situation fell within the exceptions referred to in section 7. However, despite that ruling, the trial did not proceed at that time, because of the lack of an accurate transcript of the relevant tape recordings.

The learned trial Judge pointed out that it was not open to him simply to act on the earlier findings of Lee DCJ as to credibility and that, if counsel for the appellant desired to pursue the matter, he would need to conduct a fresh voire dire on the question.

Such a voire dire was conducted, albeit in a somewhat abbreviated fashion, with prior transcript being put to the witnesses.

At the conclusion of that process (and having heard counsel) the learned trial Judge expressed brief reasons for the conclusions to which he came. The highlights of those conclusions, as extracted from his reasons, are as under - " In my judgment the most obvious hypothesis is that the purpose which the police had in mind was to obtain evidence, if any was forthcoming, which could be used in a prosecution of the accused and/or his wife.

...

The effect of the evidence given by those three police officers was that the primary purpose, if not the only purpose, for the recording and monitoring of conversations was to protect the police and provide for their safety.

In my judgment the whole of the evidence here leads to no other reasonable conclusion than that the primary purpose sought to be achieved by the recording and monitoring was the gathering of evidence. For me to have concluded otherwise, I would have 'leaned over backwards and drawn foolishly favourable inferences in favour of' the police who here made claims (see per White J in R v Carbone (1984) 36 SASR 306 at p 309.

I am satisfied that the defence has not discharged the onus of establishing a foundation for the making of an application for a permanent stay of proceedings on the ground of abuse of process. In all the circumstances, the fact that the police officers gave unreliable evidence as to their purpose (and to that extent are discredited) is not, in my judgment, sufficient in the circumstances to justify either a permanent stay of proceedings or the exercise of the Bunning v Cross discretion to exclude the evidence of the recording and monitoring; secus, if it had been proven that the police had entered into a conspiracy or had deliberately attempted to mislead the court as opposed to being, as I think they were, mistaken and labouring under a misconception.

I refuse the defence application for a permanent stay."

In my opinion the reasoning of the learned trial Judge was beyond reproach. The tapes, if they were validly obtained, speak for themselves. The issue of the police credibility arose not with regard to the obtaining of the evidence and the accuracy and genuineness of what was recorded on the tapes, but with regard to the subsequent explanations of their nature in recording what was said. It was regrettable that they chose to express what were found to be untrue reasons for recording the conversations, but, in the end, absent some conspiracy to fabricate evidence related to the possible commission by the appellant of the alleged offences, the obvious lies told by the police officers merely went to a quite peripheral and collateral issue. There was simply no basis established for a stay of the proceedings as a totality, merely because of that lack of candour of the police witnesses.

Indeed, it was not even a true Bunning v Cross type situation.

That case essentially focused on situations in which the gathering of primary evidence of guilt is tainted either with illegality or unfairness in its method. The High Court there pointed out that, in such cases, competing public requirements fell to be considered - on the one hand there is the public need to bring to conviction those persons who commit criminal offences, on the other, there is the public interest in the protection of the individual from unlawful and unfair treatment. It is trite to say that, where the evidence does disclose the existence of illegality or significant unfairness on the part of the police, then, prima facie, evidence tainted by that conduct is likely to be excluded in most instances.

I reiterate, in the instant case, the procurement of the relevant evidence was not so tainted. Rather the complaint was that, although it had lawfully and properly been obtained, when the relevant police officers were cross-examined (presumably with a view to attempting to disclose some breach of the Listening Devices Act) they were foolish enough to prevaricate.

Such conduct must, unequivocally, be condemned and the situation ought to be brought before the attention of the Commissioner of Police if that has not already occurred. However, it is a far cry from that which attracts the principle discussed in Bunning v Cross.

When faced with that proposition Mr Apps, somewhat passionately, declaimed that, nevertheless, such was the blatant perjury committed by the police officers that it necessarily undermined public confidence in the proper administration of the criminal law. He argued that the court ought to protect the integrity of that process by imposing a salutary sanction of staying the prosecution and publicly indicating that, by so doing, it was minded, jealously, to preserve and restore public confidence in it.

No authority to support the imposition of such a sanction in comparable circumstances was cited on the appeal. It seems to me that what was proposed by Mr Apps is not consistent with settled principle. To accede to his proposition would be tantamount to accepting that prosecutions would be in dire danger of being stayed whenever the credibility of police witnesses was successfully impugned, regardless of whether or not the attack on credibility went to the central factual issues arising on the trial. To state such a proposition is to expose its obvious untenability.

At the end of the day both the second and third grounds of appeal relied upon cannot be sustained. I would reject them.

On the other hand the first ground has been made good. It seems to me that, despite the inherent strength of the prosecution case, the appellant has been deprived of a fair trial and a chance of acquittal on the basis of his contentions as to the nature of the relevant business and his role in relation to the two undercover police Constables. True it is that the tapes speak for themselves as to whether or not his statements to them amounted to an attempt to procure, but the question still remains open as whether to all elements of the charges where made good to the satisfaction of a jury whose reasoning had not been seen to be tainted by what was a highly prejudicial media publication.

I would allow the appeal, quash the convictions and sentence imposed and remand the appellant for retrial before the District Court at Adelaide.