Reg v Glennon

[1992] HCATrans 41

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No MS of 1992

B e t w e e n -

THE QUEEN

Applicant

and

MICHAEL CHARLES GLENNON

Respondent

Application for special

leave to appeal

MASON CJ

BRENNAN J
DEANE J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 12 FEBRUARY 1992, AT 10.23 AM

Copyright in the High Court of Australia

Glennon(2) 1 12/2/92

MR B.D. BONGIORNO, QC: If the Court pleases, I appear with

my learned friend, MR B.G. WALMSLEY, for the Crown.

(instructed by J.M. Buckley, Solicitor for the

Director of Public Prosecutions)

MR P.C. DANE, QC: If the Court pleases, I appear with my

learned friend, MR G.J. THOMAS, for the respondent.

(instructed by J.M. Jamieson) As a matter of

precaution, we seek that this Court give a

prohibition to publication of this matter. The

matter has come before this Court on a previous

occasion, where the parties were reversed, and that

order, as an abundance of care, was made on that

occasion. We just ask, as an abundance of care,
because the publication is a central issue in the

case generally, that such an order be made again.

MASON CJ:	What are the terms of the order you are seeking?
MR DANE:	We seek that publication of the proceedings be

prohibited.

MASON CJ:  Mr Bongiorno, do you have any comment to make on

that application?

MR BONGIORNO:  No, Your Honours. So far as the prohibition

on publication is concerned, the Crown has no

attitude. So far as the power of the Court to make

such an order, I simply draw the Court's attention

to section 15 of the Judiciary Act and the case of

Dickason in 1913, which seemed to suggest - in fact

held - that proceedings of the court must be

conducted in open court.

Apart from drawing that case to the Court's

attention - and I will give the Court the citation
to it. It is probably a case well known to the

Court. It is Dickason v Dickason, 17 CLR SO. It

is a very short judgment of the acting Chief

Justice, Mr Justice Barton, to the effect that an

application to conduct proceedings in camera, which

I appreciate of course is not quite the order sought by my learned friend, could not be granted for the very simple reason that section 15 of the

Judiciary Act required proceedings to be held in open court. But apart from drawing that case to the attention of the Court and section 15, and

acknowledging that apparently the Court made an

order on a previous occasion, I have nothing

further to - I certainly do not submit that the

Court ought not to make the order.

BRENNAN J:  Has any publicity been given to the judgment of

the Court of Criminal Appeal from which this

application was brought.

Glennon(2)	2	12/2/92
MR BONGIORNO:	Yes.	there was a lot of publicity given to

it, Your Honour.

TOOHEY J: But there is no question of a retrial here, is

there?

MR BONGIORNO: There could be, Your Honour. There are

this proceeding, which could lead to a retrial.

unresolved questions for the Court of Criminal

There are a number of grounds that were argued but

not decided by the Court of Criminal Appeal and

some or other of those could, if the prisoner was

successful, lead to a retrial.

McHUGH J: Your opponent asserts that you concede error on

the part of the trial judge.

MR BONGIORNO: That assertion is denied, Your Honour. There

are concessions made by the Crown as to certain

things that the trial judge did which, the accused

argues, are contrary to the principles laid down by

this Court in Maiden's case. The effect of that is

not conceded. That is as far as the concession

goes. I have nothing further to say in relation to

the suppression order, Your Honours, and I

appreciate the significance of the application made

by my friend in the circumstances and the fact that

further publication would just heap further

problems on the ultimate trial of the case, but

apart from referring the Court to those matters I

have nothing further to say.

MASON CJ:	Do you wish to say anything in reply.
MR DANE:	No.  It is just an application that has been made

every time this case has come on in whatever forum

and it is not something that we press, but it would

be inappropriate for us to address various courts

on pre-trial publicity and then not be seen to at

least make every endeavour to avoid adverse

publicity. It is not a matter in which we have an
abiding interest.	We certainly do not wish to

close the Court, and we do not ask that it be heard

in camera.

MASON CJ: Thank you, Mr Dane. The Court does not propose

to make the order sought at this stage of the

proceedings. Yes, Mr Bongiorno.

MR BONGIORNO:  I have had prepared for the assistance of the

Court a relevant short chronology of the various

events in this saga, which commence in 1976 and go

up to the present. I will hand those up.

Your Honours, this application concerns the

trial - - -

Glennon(2) 3 12/2/92

MASON CJ:  Do you have an outline c: argument, apart from

the chronology?

MR BONGIORNO:  Not apart from the c~tline that was filed,

Your Honour, starting at page 10 of the application book.

MASON CJ: Yes.

MR BONGIORNO:  The appeal concerns the trial of a former

Catholic priest who was charged with sexual offences against children and young persons occurring between January 1976 and December 1980.

The events which are relevant for the purpose are set out in the chronology and they commence with the date which is the earliest date alleged upon

which any of the offences occurred and the next

date, December 1980, is the last date upon which

any of the offences occurred. There were

originally 19 counts. Shortly before the trial

took place I entered a nolle prosequi in respect of

two of them, so that 17 counts went to trial.

The way in which the events were disclosed,

which led to the charging of Glennon, were that in

March 1985 there was a physical altercation between

him and a relative and another person called Hood

which resulted, in October 1985, in court

proceedings in respect of that assault.

During those court proceedings, allegations

were made that Glennon was a child molester and

indeed, a murderer. He was interviewed by the

police in November 1985 and he was charged then

with some of the offences. He was interviewed

again, and it was on 13 November 1985, after the

second interview, that a radio commentator in

Melbourne - Hinch - made the first of the

broadcasts which are relevant for the purposes of

this application.

The text of that broadcast is most

conveniently set out in the appendix to

Mr Justice Toohey's judgment in the case which eventually finished in this Court, of Hinch v The

Attorney-General, and it can be found at page 77 of 164 CLR. The case itself is reported at page 15 of

that volume, but the relevant passages which are

the relevant broadcasts by Hinch are set out at

page 77 and following.

TOOHEY J:  Mr Bongiorno, just before you take us to the

content of the Hinch broadcasts, are the

allegations made at the committal proceedings of

any relevance?

MR BONGIORNO:  The allegations?

Glennon(2) 4 12/2/92

TOOHEY J: Those referred to in your chronology as at

30 October 1985.

MR BONGIORNO:  I would submit not, Your Honour, not at this

stage.

TOOHEY J: But they are the precisely the sort of

allegations that might well lead to, if published

at or about the time of trial, being allegations

only apparently - might well cause prejudice.

MR BONGIORNO:  Yes, they could, but these allegations, in so

far as they were reported at all - and there is no

evidence - certainly there has been no evidence, I

think I am correct in saying, before any court

which has heard this matter as to the content of

those allegations.

TOOHEY J: But that makes it only the more undesirable that

they be aired, or even referred to, in these

proceedings, do they not?

MR BONGIORNO:  Yes, I would certainly concede that,

Your Honour. I think I see the point to which

Your Honour is getting. It goes back to the

application made by my learned friend. It may be

more appropriate if, on reflection, I were to adopt

the application and concur in the application by my

learned friend having regard to the insight that

Your Honour has given me as to that extra matter.

TOOHEY J: Well, it was merely a comment in relation to a

particular allegation that seems to be quite

unrelated to the substance of the matters we have

to deal with.

MR BONGIORNO:	Yes.
MASON CJ:	You do not need to persevere with that, do you?

MR BONGIORNO:

No, no I will not, Your Honour. Hinch made

his first broadcast in November, and it is

sufficient, I think, for the purposes of this

application if I were to say that in that broadcast

he referred to Glennon; referred to his position

as a priest; talked about the court proceedings

that were pending, the fact that he had been

charged with various sexual offences, and the fact

that he had been forced to resign from the catholic

church in 1978 after he was charged with sexual

assault in that year in gaol.

He goes on to say that he appeared in 1978

charged with rape; was convicted of indecent

assault after a plea of guilty and the rape charge

was not proceeded with; sentenced to two years

gaol and, indeed, canvassed the circumstances of

Glennon(2) 5 12/2/92

the previous conviction. Says that he now calls

himself a non-denominational priest and runs an

organization for young people, including a youth

camp. Says that he was bailed and raises the

question as to why he is still involved with the
Peaceful Hand Youth Foundation.

On 15 November, two days later, he broadcast again in similar vein. Nothing in that broadcast,

it would appear, alters what he said in the first

broadcast. It makes some criticism of the police

and asks the question as to why he is able to

continue to hold office in an organization.

The next relevant thing that occurred was that

Hinch was convicted on two counts of contempt

before Mr Justice Murphy of the Victorian Supreme

Court in May 1986. Glennon was interviewed again
in June and August. His committal took place in

September. On 11 November the Full Court of the

Victorian Supreme Court heard an appeal by Hinch

against his convictions for contempt and delivered

judgment - in fact the chronology does not note

this but it was on 11 December that judgment was

given and that judgment is reported at (1987) VR

721.      The decision of Mr Justice Murphy was upheld

by a majority with Mr Justice Nicholson dissenting.

This Court granted special leave to appeal on

30 February and it would appear that on 16 February

Hinch made some broadcast in respect of that appeal, but the content of that broadcast has not

been before any court, and I have been unable to

find any reference to it other than the fact that

it occurred. Counsel for the applicant has not

note of it either I do not think. On 10 and

11 June this Court hear an appeal by Hinch and

dismissed the appeal on 15 October and that is

reported in the volume to which I have referred.

On 15 October Hinch was gaoled and on the 26th he was released. The presentment was filed in the

case in December and in August 1988 the first

application was made to Judge Harris to stay the

trial: Judge Harris being then nominated as the

trial judge; Judge Harris of the Victorian County

Court. Judge Harris refused the application on

4 August and on 13 September there was an excursus

in the matter from hereon because a motion was

taken out before the supreme court; it was heard by

Mr Justice Kaye. Questions of jurisdiction were

argued; they went to the Full Court May 1989 and

none of these events, it would appear, received any

undue publicity.	They were technical legal
matters.

Glennon(2) 6 12/2/92

The next matter of relevance is in July 1989 when an application was heard by

Mr Justice Crockett on an originating motion to

stay the proceedings. Mr Justice Crockett's

decision was given on 25 July and that is included

in the application book at page 21.

Mr Justice Crockett heard the application over

three days. It was seeking prerogative relief in

effect, and the respondents were the County Court

and the then Director of Public Prosecutions.	The
matter was argued, evidence was taken on that

application from a marketing organization which had

conducted some research into what people knew of

the Glennon case, and Mr Justice Crockett refused

the application or dismissed the originating motion
seeking a stay of the proceedings and found that
there was no reason why the trial should not take

place and, indeed, he expresses at least mild

annoyance that "it's high time the trial did take

place and the matter be got over with".

It is significant that, in the course of that

proceeding, Mr Justice Crockett notes, at page 32

of his judgment that counsel for the plaintiff

there conceded that a trial could not be postponed

forever on the ground of undue publicity.

DAWSON J: Counsel for the plaintiff?

MR BONGIORNO:  It was an originating motion; the plaintiff

was Glennon.

DAWSON J:	I see, yes.
MR BONGIORNO:	And indeed, Mr Justice Crockett says, at

page 32 of the application book:

Counsel for the plaintiff agreed that a

trial could not on such a ground be postponed

for ever.	He said that a substantial
postponement was, however, still required but,

as that would immediately make the delay so

gross as to be untenable, the Court should

here and now order the permanent stay of the

trial.

So that, in effect, the argument put by the plaintiff before Mr Justice Crockett was really,

"You can't have a trial now and when the time comes

that a trial could be held the delay would be so

untenable as to make the trial unfair and so there

ought to be a stay". Mr Justice Crockett, as I

have said, dismissed the application.

DAWSON J:  Was there an appeal available to the Full Court

from Mr Justice Crockett's order or the

Glennon(2) 7 12/2/92

availability of a fresh application to the

Full Court?

MR BONGIORNO:  Yes, Boehm's case, Your Honour, meant that

because Mr Justice Crockett's order was - I think

this is the way it goes - in effect an order which
could be subject to appeal under the Crimes Act, no
appeal lay to the Full Court from it until after a
trial. Section 10 of the Supreme Court Act permits

an appeal to the Full Court from any decision of a

judge of the spreme curt other than a decision in

respect of which an appeal lies under the
appropriate provision of the Crimes Act, which I

cannot remember.

There has been a bit of litigation in Victoria

Supreme
working out what these prc 1risions of the are not terribly old. There are now a couple of

cases. There is Boehm, and indeed this Court had

to deal with Beljajev, which had some of the same

sorts of problems in it as to where the appeal

ought to go.

McHUGH J:  Mr Bongiorno, there is something confused in my

mind. Your chronology shows 25 July 1989 as the

date that Mr Justice Crockett dismissed the

originating motion, but I thought that the Saulwick

poll was on 14 and 15 July 1990.

MR BONGIORNO:  I am sorry, there is a typographical error;

I am a year out. Yes, Your Honour, it was heard in

1990 and the two dates - 16, 17, 18 July, should be

1990, not 1989. I apologize to the Court; there
was a typographical error. It is the following

year.

That was dismissed in July and it was

dismissed, if I may say so, on what might be said

to be conventional reasoning. There was no

reference in it to any question of an indefinite

stay or a permanent stay because of undue

publicity. There was no reference to the
possibility that in some circumstances that relief

may have been available.

On 16 November 1990, an application for special leave to appeal from Mr Justice Crockett to

this Court, which would be the reason for the need

to come here, was heard and dismissed by a

majority, I think, in Melbourne.

The trial was listed before Judge Neesham on

6 May 1991 and commenced with an application to

Judge Neesham, again in the county court, to, in

effect, stay the proceedings again on the same

Glennon(2) 8 12/2/92

grounds as had been argued in front of

Mr Justice Crockett.

Judge Neesham's judgment, or ruling, is

incorporated in the judgment of Mr Justice Nathan,

and it is at page 76 of the application book. He

ruled, in effect, that Mr Justice Crockett, having

decided the same issue in July 1990 and nothing

having occurred between July 1990 and May 1991

other -

DAWSON J: There was a concession to that effect that

nothing had occurred.

MR BONGIORNO:  Yes, a concession to that effect that nothing

had occurred other than the lapse of time, that he

considered himself bound by Mr Justice Crockett.

There is some debate in the Full Court as to

whether that is technically so or not, but in any

event nothing, it would appear, turned on the

question of whether Judge Neesham was, or was not,

bound by Mr Justice Crockett having regard to what,

in fact, occurred.

DAWSON J:	I am not sure about that, but go on.
MR BONGIORNO:	Yes, I see the force of Your Honour's

comment, and perhaps I will deal with that in due

course.

Judge Neesham, in selecting the jury for the

trial, had adopted the ordinary course, the

conventional course, of asking jurors whether any of them knew anything of the circumstances of the

case. He dismissed, or excused, a couple of

jurors, one of whom said that he had read something

somewhere and the judge stopped him before he could
tell the rest of the panel what he had read, and
another juror said that he had been taught by the

respondent.

BRENNAN J:  Can we have the transcript of this?

MR BONGIORNO:  No, Your Honour. There is no transcript of

that part of the trial.

MASON CJ:  Where do we find the reference to this in the

application book?

McHUGH J: Page 61, is it not?

MR BONGIORNO:  Yes. It is in the judgment of

Mr Justice Nathan again, Your Honour. I am sorry,

Your Honour, I am told that it was transcribed. It

is set out at page 61:

Glennon(2) 9 12/2/92

We were told by counsel for t. ?

respondent that the jury which tritd the

applicant was selected from a panel of 40 to

50 persons. Due no doubt to limitations of

space, first, approximately half the panel

were brought to the courtroom and addressed by

the judge, then that was repeated with the

other half. On each occasion His Honour

identified the charges, the alleged victims,
the main prosecution witnesses and gave a

brief outline of the background circumstance.

He then said:

"If anyone among you knows any of the persons

that I have named or believe that you may know

anything about the circumstances of this case

or have heard anything about the circumstances

of this case, would you kindly hold your hand

up, II

McHUGH J:  Mr Bongiorno, do you know whether there was any

reference to the fact that the accused was a

priest, or had formerly been a priest, because

perhaps more than any other factor that would be

what would trigger off recollection.

MR BONGIORNO:  If Your Honour would pardon me. I understand

that	there is a transcript of what Judge Neesham
said	and I will have it produced, so that there
will	be no doubt about it.

BRENNAN J: While you are getting transcript produced, is it

possible for us to see also what other steps, if

any, the trial judge took with respect to this

matter in the course of the trial?

MR BONGIORNO: There were no other specific references in

the trial to - - -

BRENNAN J: Nothing in the charge directing - warning the

jury against acting against prejudicial

information?

MR BONGIORNO:  Yes, there was Your Honour.

BRENNAN J: Well, where is it?

MR BONGIORNO: In the charge. That is not in the

application book either.	I will have that brought
in also, Your Honour.

BRENNAN J:  What needs to be done, it seems to me, is that

the transcript of the trial needs to be combed to

see what happened in the course of the trial with

respect to the problems with which the trial judge

was faced because of the antecedent publicity and

what steps, if any, were taken in order to see what

Glennon(2) 10 12/2/92

could be done to neutralize the ill effects of that

antecedent publicity. At the moment we are

completely without assistance in that regard.

MR BONGIORNO:  Yes, I appreciate the force of what

Your Honour says and I will make sure that the

transcript is produced and that my learned junior,

who was counsel in the matter, can point to those

passages that are relevant.

As I have said, two people sought to be

excused or made themselves known to the judge and

were excused, and the trial proceeded - a fresh

presentment filed, in fact, leaving out the counts

that had been subject to the nolle prosequi, and

some pre-trial voir dire conducted.	He was
arraigned on 14 May.	On 19 June he was found not
guilty on nine counts.	The course adopted by the

trial judge was to direct the jury in respect of

individual groups of offences relating to various
events and seeking their verdict in respect of

those individually, so that the jury retired on a

number of occasions and brought back verdicts.

He was found not guilty on nine counts on

19 June. On 20 June he was found guilty on one.

On 21 June he was found not guilty on one and guilty on one and on 22 June, found not guilty on two and guilty on three.

McHUGH J:  So what is that, he was acquitted on 12 out of

17, was he?

MR BONGIORNO:  Yes, he was not guilty on 12, yes, that is

so, Your Honour, and convicted on five. He was

sentenced, effectively to nine years and one month

in respect of those counts upon which he was

convicted.

McHUGH J:  I think it appears from Mr Justice Nathan's

judgment that the customary admonitions were given.

Were there any special warnings given about it?

MR BONGIORNO:  No, there were not, Your Honour. I think

that is probably why the transcript was not - the

charge was not referred to at any stage during the

Full Court hearing or in the Full Court's judgment.

MCHUGH J: It is always the dilemma that sometimes you can

do more harm than good.

MR BONGIORNO:  That certainly seems to have been the view

that Judge Neesham took, that having identified

those people who said that they might have been

somehow involved, he then let the trial go on in

its ordinary way.

Glennon(2) 11 12/2/92

The prisoner appealed in June and the Court of

Criminal Appeal heard that appeal in November and,

on 13 December, handed down the judgments which are

contained in the application book, commencing with

Mr Justice McGarvie, at page 38.

The appeal was upheld by a majority of two,

Mr Justice McGarvie and Mr Justice Nathan,

Mr Justice Southwell dissenting. Mr Justice

McGarvie, in his judgment, after briefly reviewing

the facts, sets out Hinch's first broadcast of 13

November.

MASON CJ:	Mr Bongiorno, I think the time has arrived where you might put your submissions to the Court, rather
than taking us chronologically through material and
judgments.  We have read most of the material.
MR BONGIORNO:	If the Court pleases. Your Honours, it is

the submission of the Crown that only in the most

extreme case could there ever be justification for

a permanent stay of criminal proceedings brought

about by adverse publicity. The Crown refrains

from putting the higher proposition that there

could never be justification for a permanent stay

because of the existence of what I would submit is

the bizarre case of Tuckiar v R. Tuckiar's case,

(1934) 52 CLR, is almost like something out of

another age; indeed it probably was another age.

DEANE J:  Mr Bongiorno, before you come to the question of

permanent stay, would you disagree with the

this case, the respondent had been denied a fair trial by reason of the particular pretrial publicity in the context of the conduct of

proposition that all members of the Court of circumstances of

the trial?

MR BONGIORNO:  Yes. I do not think I could disagree with

that proposition.

DEANE J: Well now, do you dispute that proposition?

MR BONGIORNO: That is the proposition that he did not

receive a fair - -

DEANE J: That the relevant question is whether in the

circumstances of the case he was denied a fair

trial by reason of the pretrial publicity viewed in

the context of the conduct of the trial?

MR BONGIORNO:	Yes, I do, Your Honour.
DEANE J:	You disagree with that?
MR BONGIORNO:	Yes.

Glennon(2)	12	12/2/92
DEANE J:	Why do you disagree with that?	If the answer is

that he was denied a fair trial	by reason of the
pretrial publicity, you say the	conviction should
stand?

MR BONGIORNO:  No, I am sorry. I am obviously not following

Your Honour. The Crown would dispute the

proposition that the accused did not get a fair

trial. If he did not get a fair trial - - -

DEANE J:  I was directing you to the question of principle

and suggesting that all members of the Court of

Criminal Appeal applied the same principle; that

is, the relevant question was whether the accused

was denied a fair trial by reason of the pretrial

publicity in the context of the conduct of the

trial.

MR BONGIORNO:  I would not dispute the proposition that that

principle was applied by each member of the

Full Court with, of course, differing results.

DEANE J:	And do you disagree with the principle?
MR BONGIORNO:	No, Your Honour.

McHUGH J:  I thought you did. I thought the whole thrust of

your special leave application was that a fair

trial means as fair as the courts can make it?

MR BONGIORNO: Yes, I do. It is a question, I suppose,

ultimately, and this is really where the two

members of the Full Court disagree with the third

member, and that is why I say with differing

results, because it depends upon what it is meant

in the context of what is a fair trial. A fair

trial, in the submission of the Crown, I suppose,

is that there is no such thing as an objectively

fair trial or, perhaps put another way, it can

never be determined that there has been an

objectively fair trial with absolute certainly, it

can only ever be surmised that if certain
procedures are followed a fair trial, in accordance

with the law, will be held.

Now, it follows, and as I develop the argument

I would hope to convince the Court, that the

question of the fairness of a trial will vary from

trial to trial depending upon a host of factors,

not just pre-trial publicity but all sorts of

things which are part of the fact that the

administration of justice is as much a human

operation as any other, and that even applying the

same criteria different courts come to different

conclusions and different judges apply the law with

different emphases and different attitudes. So

that whilst I would agree with Your Honour's broad

Glennon(2) 13 12/2/92

proposition, I suppose what I am really saying is

that when one comes to the question of what is a

fair trial -

DEANE J: Is that it, or is it that even though it is not a

fair trial it does not matter if the court has done

its best, because that is what it means if you

define "fair trial'' as is fair as a court can make

it?

MR BONGIORNO:  I hesitate to accept the harshness of the way

in which Your Honour puts it.

DEANE J:  I was not trying to be harsh, I am just trying to

understand what is the underlying difference in

principle that warrants an application for leave to

appeal to this Court.

MR BONGIORNO:  Yes. The principle is that, leaving aside

the bizarre case of Tuckiar but leaving room, I

suppose, for the possibility that there could be

other bizarre cases of equal or greater merit from

the accused's point of view, but except in those

very, very exceptional circumstances pre-trial

publicity does not vitiate a trial. That is really

what the appeal is about and what the - - -

McHUGH J: But the actual decision in Tuckiar establishes

that there is a standard of fairness outside what

the court can do. I think you might have said, "In

Tuckiar's case well, the Northern Territory jury

could be warned".

MR BONGIORNO:	I am going to disclose what to me anyway was a startling fact to the Court in a moment, but if I
could just perhaps go back to that proposition
about Tuckiar.  Tuckiar was bizarre because it went
wrong in so many different ways, not the least of
which and probably the worst of which, was the
in-court confession by his counsel at the end which
the judge seemed to think was a good idea.

The Australian Bureau of Statistics keep

figures on the censuses which have been conducted

in this country. In 1933 the population of Darwin

was 1566 people, men, women and children. There

were only 4800 in the whole Territory.

GAUDRON J: Did they count Aborigines?

MR BONGIORNO:	They would not have counted Aborigines at that time; not until the late 1960's, but
presumably Aboriginals also would not have been
elibible to sit on juries, so of the 1566 people
who lived in Darwin at the time or about the time, if one takes out the women and children who would
not have been elibible to sit on juries, you are

Glennon(2) 14 12/2/92

looking at a total possible jury panel of something

probably of the order of 300 or 400 people at the

most; possibly 500. So, if you pick a jury from -

the court would be calling 10 per cent of the panel

every time it conducted a criminal trial - and one

assumes, we would submit, that the High Court of

those days, whilst it probably did not know the

exact population of Darwin, certainly would have

realized that it was a very, very small place.

BRENNAN J:	You would probably have to take the public servants out of that too; as servants of the Crown.
MR BONGIORNO:	Who may not have been able to sit on juries

at the time, yes. I might say, and I have told my

learned friend these facts when I obtained them

from the Government Statist, it was an absolute

shock to me that the place was that small, but I

suppose it is 1934; it is over 60 years ago.

GAUDRON J: Yes, but modern communication has been described

as having brought about a global village, which is

much the same thing, I should have thought.

MR BONGIORNO:	Yes, certainly it is a countervailing factor in modern life that television goes the length and
breadth of the country, but assuming that there was
a local newspaper in Darwin at the time, and I
think the High Court referred to that fact, that
Tuckiar's confession would have been known
virtually to every soul in the place. And of
course the other aspect of Tuckiar, which is not in
this case and which distinguishes it, is that
Tuckiar's confession was a confession of the crime
with which he was presumably going to be tried if there had been a retrial, so that it is not a case
of divulging some prior conviction which might prejudice a jury; it is a jury having to be told,
in this most bizarre situation, "You read in the
paper that the accused in this case, his counsel,
confessed at the last sittings to his client's
guilt.  Now you must put that out of your mind." I
mean, it is bizarre in that the far end of any consequence of pre-trial publicity, and in our submission its existence dints the principle that
might have been able to be put, that no pre-trial
publicity could ever vitiate a trial; that there
are always ways that it could be overcome, but one could imagine, given the circumstances at that time
and in Darwin at that time, it was a bizarre case.

The Crown would submit that the only

significance of Tuckiar's case is to illustrate

that there is a possibility under extreme

circumstances that a court will prevent a trial

occurring because of the pollution of the jury pool

to such an extent that it cannot be cured. In our

Glennon(2) 15 12/2/92

submission, Tuckiar is to bizarre that it ought not

to leave a way open for situations such as the one

with which we are confronted at the moment.

DAWSON J: That completes your answer to Mr Justice Deane's

question, does it, Mr Bongiorno?

MR BONGIORNO:	Yes, Your Honour.
DAWSON J:	Can I raise something just at this stage, too.

Mr Justice Crockett determined a question which was

before him, did he not, and Mr Justice Crockett was

the supreme court for the purpose of determining

that question.

MR BONGIORNO:  Yes.

DAWSON J: Nothing had happened between that time, that

determination and the time the matter came before

Judge Neesham. Judge Neesham followed the decision

in those circumstances. Nothing occurred at the

trial, did it, to alter the circumstances which had

been before Justice Crockett?

MR BONGIORNO:  No, Your Honour.

DAWSON J: Then on what basis did the Full Court in effect

overturn the decision of Justice Crockett?

MR BONGIORNO:  The Full Court grappled with that in a sort

of way by saying that it accepted that it was

effectively conducting an appeal from

Mr Justice Crockett.

DAWSON J: But surely there had to be shown some error in

the manner in which the trial was conducted.

Judge Neesham merely, not only understandably but

perhaps he had no option, followed the ruling of

the higher court. Where is the error?

MR BONGIORNO:  I would respectfully adopt what Your Honour

is saying, that the Full Court appears to have

reviewed the trial in the ordinary way and at the

same time, as it were, interpreted the case

differently to Mr Justice Crockett and felt itself

able to - - -

DAWSON J:  What I am putting to you is the circumstances

which it considered were exactly the same

circumstances which were considered by

Mr Justice Crockett; those circumstances which

occurred before the trial.

MR BONGIORNO: Yes, there had been no change certainly, that

nothing had occurred.

Glennon(2) 16 12/2/92

GAUDRON J: There had been a change to this extent though:

there had been a trial. Some people had indicated

at the trial that they either knew the accused or

that they did not, and it may be that when

Mr Justice Crockett was determining the matter, he

was turning his mind to the steps that might be taken to ensure that the jurors' minds were not

affected by the publicity, which we do not know

whether or not were taken.

MR BONGIORNO:  Yes, but Mr Justice Crockett, I would submit,

would have clearly in mind that in any criminal

trial when that question is asked by the judge, as

it traditionally is in Victoria, sometimes with

more detail, sometimes with less, it is not unusual

for two or three people to say they know somebody

connected with the trial. The judge often reads

the names of the witnesses off the presentment, he

may mention the names of companies that are likely

to be mentioned in the trial, you find people who

are employed by them.

To take more obvious examples: in the early

seventies I prosecuted at a town called Colac,

which is in south-western Victoria, a town much

bigger than Darwin was in 1934, and in that town

the jurors who were summoned at every sittings

often were the same people. It was not uncommon to

address the same jury at three successive sittings

at Colac - not the same twelve, but two or three of

them had been there from the time before, and you

would get the question asked by the judge, "Does

anyone know the accused in this case?", half the

hands in the room would go up. The judge would

say, "Does anyone feel unable to try the case?"

You would have a couple of questions like that, and

somehow a jury would be selected.

Now, there was no question that in a town like

Colac, the jury had precognition of all sorts of

things.	One wonders just what they did know about
various offences and various allegations,

witnesses, and everything else, but the trial was

conducted and trials were conducted, and have been

conducted in country towns in all States in this

country, one assumes, along the same sort of lines.

Whether one would say, applying some all-seeing,

all-knowing eye to it, if that was a trial that was

fair, that there were no jurors there who were in

some way not compromised, I do not know, but

certainly that has always been the traditional way

in which jury trials have been conducted, and that

the imposition of a higher standard than that of

fairness could result in all sorts of problems

arising in the selection of juries, and we would

end up with, as we have seen in the United States,

sort of attempts to try and get what is said to be

Glennon(2) 17 12/2/92

impartial juries by having voir dires, as they call

them, or challenges for cause that go for days or

even weeks in some cases. I do not think there is

anything further I can say to Justice Gaudron about

that.

To get back to the question of Tuckiar, if

Tuckiar's case was a confession of the guilt of the crime charged, it makes this Glennon case pale into

insignificance.

TOOHEY J:  I wonder, Mr Bongiorno, if you are not making too

much of Tuckiar. I mean, in Tuckiar there were

grounds of appeal quite unrelated to what the

accused's counsel had said and, as I read the

judgment, it was on that basis that the appeal was

allowed. It was after the jury had returned the

verdict of guilty that the accused's counsel

referred in terms to what constituted an admission

made by the accused to him. I am not overlooking

the fact that during the trial counsel said he was

in a predicament, but that does not appear to have

been enlarged at that stage. Now, it was when the

question of a retrial arose that the High Court

referred to the confession as it had been indicated

to the Court by the accused's counsel and decided

that a retrial was inappropriate, but it does not seem to me that the case itself throws much light

upon the principles with which we are concerned

here.

MR BONGIORNO:  No, with respect, I respectfully agree with

Your Honour and, in particular, I was about to make

the point that the point at which the pre-trial
publicity, if that is how you can describe it, in

Tuckiar resulted in there not being a new trial was, as Your Honour has pointed out, after the

verdict and it was dealt with by the High Court -

without reference to any express principle, it was

just simply that this having occurred, there cannot

be a fair trial and, accordingly, there will be no

further trial and there will be an acquittal

entered.

TOOHEY J: No, no. That is not right, is it? I am sorry,

perhaps I misunderstood what you were saying.	The
court quashed the conviction.	The question then

arose as to whether there ought to be a

retrial - - -

MR BONGIORNO:	Yes.
TOOHEY J:	- - - and for reasons which have been canvassed

the court decided there would be no retrial, so the

quashing of the conviction simply stood.

tR BONGIORNO:  Yes, Your Honour.

Glennon(2) 18 12/2/92

McHUGH J:  The .local judge, in his report to the court had

said that a new trial would be virtually - - -

MR BONGIORNO:  Yes, but the way in which the court dealt

with it - it was dealt with in one paragraph, at

page 347, in what must be an understatement of

considerable size. The four judged who constituted

the principle judgment:

In the present case, what occurred is

productive of much difficulty.

TOOHEY J:  Yes but, Mr Bongiorno, the court there was not

concerned with whether the conviction should be

quashed because of what had been said during the

course of the trial - and clearly could not have

been quashed by what was said after the trial had
been concluded - it was merely directing its

attention to whether it would order a retrial or not and decided, in the circumstances, not to do so.

MR BONGIORNO:  Yes.

TOOHEY J: Well that does not seem to me to help us very much in the context with which we are presently

concerned.

MR BONGIORNO: Well, I certainly do not seek to dissuade

Your Honour from taking - - -

TOOHEY J: But you seem to be suggesting that perhaps it is

authority or stands in the way of some submission

that in no circumstances can a permanent stay be

granted.

MR BONGIORNO: Well, Your Honour, I suppose what I am really

conceding is that if what had happened in Tuckiar

was simply that the High Court had ordered a new
trial and the day after that occurred in some way -

if the High Court had decided Tuckiar on the basis

of the points that occurred within the trial, the

misdirections and the other mistrial points, and

the day after it had o~1ered a new trial, the

counsel for Tuckiar had made his disclosure in some

circumstances which attracted the same publicity

that it is said to have attracted here - - -

BRENNAN J: In court, do you mean?

MR BONGIORNO: Well, in court or in some - Tuckiar was

charged with illegal parking and happened to be in

court and his counsel said, "Oh, by the way I also

want to announce, for the purpose of vindicating

Sergeant McColl, that my client told me yesterday

that he committed this murder that the High Court

had just ordered a new trial on" - I mean, say that

Glennon(2) 19 12/2/92

bizarre circumstance occurred - one could argue

that what the High Court was saying there at the

end of that judgment would compel a trial judge to

grant a stay, subsequently, if the events had been

chronologically in the way that I have put them.

That is a concession I make. It would seem

difficult to argue against that proposition that

given those bizarre circumstances that what the

High Court would say there is, "That having

occurred, there cannot be a retrial". So absent

allegations of the - I suppose it could have been

said, "Well it was done by his counsel" and there

would be all sorts of other arguments today put up,

I suppose, as to the way in which it all occurred -

and that is why I submit that it is a very bizarre

case and it is right at the extremities and ought

to be left there.

But if I could turn to a case which is as new

as Tuckiar is old, and that is the recent case in

the divisional court in England, of which the Court

has copies of the judgment. This is the case that

arose out of the Guilford Four. Judgment was

delivered by a divisional court three weeks ago.

BRENNAN J:	What is the name of it?
MR BONGIORNO:	It is called Reg v Bow Street Metropolitan

Stipendiary Magistrates; ex parte the DPP. Now,

this case is significant for a number of reasons.

The report that Your Honours have is an unrevised

judgment and for that I can only say that there are
no, as I understand it, revised judgment3 of the

case available and it certainly has not been - - -

MASON CJ: What proposition are you going to derive from

this case?

MR BONGIORNO: This case is put to the Court as an example

of extreme prejudicial pre-trial publicity, where

the divisional court did not even consider the

question of that alone being sufficient to stop a

future trial and dealt with it in a - and, indeed,

talked about the timetable that would be necessary

to guard against the pre-trial publicity, but the

pre-trial publicity, in this case, was a statement
by the Lord Chief Justice of England that the
people charged were guilty of the crime that they

had committed.

Now, if it is a case of the Lord Chief Justice

of England being reported, as the judges here say

"widely in the press and on television", saying

that the accused were liars and perjurers in the

trial of the Guilford Four, and the divisional

court goes on to say, "Well, that is not grounds

for staying the trial" and, indeed, their counsel

Glennon(2) 20 12/2/92

conceded that it was not, but that simply there

would have to be a delay. The way it was put was

that that in conjunction with others facts would

justify a stay, mainly the question of delay.

DAWSON J: But there was pre-trial publicity on both sides,

was there not, to a considerable extent?

MR BONGIORNO:  The publicity is set out, and I can take

Your Honours to the passage, but the relevant dates

are that in October 1989 the Court of Appeal,

consisting of the Lord Chief Justice and

Lord Justices Glidewell and Farquharson, upheld,

without opposition from the Crown, an appeal by
four persons who had been convicted many, many

years earlier, in 1975 or thereabouts, of

conspiracies. At the judgment at page 9 - page 8

notes that after the Secretary of State referred

the matter to the Court of Appeal, came on:

on 19 October before the Lord Chief Justice

sitting with Lord Justice Glidewell and

Lord Justice Farquharson. Mr Roy Amlot QC,

who appeared on behalf of the Crown, told the

court that the Crown would no longer seek to

uphold the convictions and he explained the

reasons why that conclusion had been reached.

When dealing with the case of Patrick

Armstrong he said that evidence had come to

light which showed, in the Crown's view, that

the manuscript notes of the interviews on 4, 5

and 6 December 1974 were not contemporaneous

records at all.

The point at issue was that somebody had

produced some manuscript, alleged notes of

conversations, and a very sharp-eyed woman police

inspector had found, in the mass of materials in

this case, a typescript version of those notes but

with interlineations which indicated that the

typescript version pre-existed the handwritten

version, whereas the evidence was the other way and it was apparently a crucial part of the Crown case.

The judgment of the Court of Appeal was

delivered by the Lord Chief Justice. He drew

attention to what had been said by counsel

about the manuscript notes and the typed

notes, and then, in relation to the status of

the manuscript notes as a contemporaneous

record, said this:

"In any event the police were not telling the

truth about this crucial document in the case

against Armstrong. If they were prepared to

tell this sort of lie, then the whole of their

Glennon(2) 21 12/2/92

evidence becomes suspect and, I repeat, on

their evidence depended the prosecution case."

A little earlier the Lord Chief Justice

had expressed the view that the officers

concerned "must have lied". Later he added

that it was some comfort to know that the

matter was now in the hands of the Director of proceedings being brought.

The freeing of the Guildford Four and the comments made by the Court of Appeal attracted

immediate and very widespread publicity.

And I think this Court could itself take judicial

notice of the fact that it got as far as here in

very large measure with feature articles and

television programs.

·we have seen, as did the magistrate, copies of the Press reports. We have also been provided with video-recordings of television programmes

and television news reports which were shown

on 19 October 1989 and in the succeeding

weeks. In addition we have had an opportunity

to see video-recordings of later programmes

broadcast in the course of 1990. It is right

to say that much of the contemporary publicity was sensational, critical of the police and in

some cases clearly hostile to the police. The

comment that the respondents were liars

provided headline news. I shall have to

return later to consider the possible effect

of this publicity on the prospects of a fair

trial.

On 20 October 1989 Mr Donaldson and

Mr Attwell were suspended from duty.

They are the accuseds in the case. So that the

judgment of the Lord Chief Justice appears to have

been given on the 19th; it must have been extempore

at the time the case was called on.

Mr Bartle, a magistrate, heard an application

for a stay on 4 July 1991 - now, he is dealing with

that, in other words, about 18 months after the

Lord Chief Justice's comments have received wide

publicity and, one assumes, sometime after they had
received subsequent publicity and analysis in other
places. Mr Bartle, the magistrate, heard the
application in July 1991 and the application was

basically for a permanent stay on the ground that:

Glennon(2) 22 12/2/92

(a) because owing to the elapse of time since

the original events a fair trial could not

take place; and

(b) because the prosecution, by failing to

caution the respondents before the 1989
interviews and by failing to give regulation 7

notices -

which, one assumes, was something to do with their

police force -

had misused or manipulated the processes of

the court so as to deprive them of the

protection provided by the law.

In addition reliance was placed on the

nature and extent of the adverse publicity
which had followed the release of the
Guildford Four and on the fact that this

publicity, in addition to being prejudicial in

itself, had, or was likely to have, deterred

possible witnesses from coming forward.

The magistrate granted a stay, basing his

decision on four grounds, one of which was that the adverse public comment through the media was highly

prejudicial, the others being delay and

disadvantage and difficulty in preparation of

defence and failure to caution the respondents.

MASON CJ:  Mr Bongiorno, I do not want to discourage you but

at the moment I do not see what this case has to do

with the issue that we are facing here.

MR BONGIORNO: Well, Your Honours, this case is a case where

a court was faced, in 1992, with the review of a

magistrate's order staying a prosecution on the

ground of adverse publicity.

MASON CJ: Yes, but if you look at page 19, the conclusion

is a conclusion drawn on the facts of the case. If

you look at a little more than halfway down page 19

of the judgment:

Even in relation to the earlier material,

however, I am quite satisfied that none of the

publicity which I have seen could affect a

fair trial in, at the earliest, the autumn of

1992.      A jury would be perfectly capable of

deciding the case on the evidence without
regard to what they might have seen or read

3 years or so before.

MR BONGIORNO: Well, I think I see Your Honour's point, but

I am not sure that I do.

Glennon(2) 23 12/2/92

MASON CJ: Well, I am saying to you that it turns on its own

facts.

MR BONGIORNO: Well, of course it does, Your Honour, but all

of the - - -

MASON CJ: There is no discussion of principle there at all.

MR BONGIORNO:	No, I certainly concede that but, in our submission, if you have got a situation here where
the facts are not in dispute, and we are looking at
a trial taking place in 1991 in respect of the last
bit of publicity in 1987, the analysis which the
Lord Justice here has gone into is, in our
submission, helpful to see whether, in fact, a view
that that could create an unfair trial is a tenable
view or not.
McHUGH J:	Mr Bongiorno, unless you can elevate this case

into some question of principle it is just a

question of fact, is it not, or a question of

discretionary judgment, right or wrong, that you

are seeking special leave to appeal from? There

was a mountain of evidence before the Court of

Criminal Appeal and two judges held the view that

the accused could not have had a fair trial. Now,

that is a question of fact, unless somewhere there

is some question of principle involved in it.	What
is the question of principle?

MR BONGIORNO:  The question of principle goes, in our

submission, to whether - except in the bizarre case

that I put 1side - there could ever be a situation

where somE dy cannot be tried because of adverse

publicity. That is the question upon which the

ruling of this Court is sought. That this Court -

whilst I concede that, viewed in one way, this is a

question of fact, but this is not stopping the

divisional court here, as it were, saying that the

magistrate was wrong in relation to any decision

that he might have come to that adverse publicity

could affect a fair trial.

BRENNAN J: But that was only one of the factors. There was

conduct of the prosecution; delay in publicity; and

the question was whether the decision was open to

challenge on the basis that it was unreasonable in

the Wednesbury sense.

MR BONGIORNO:  Yes.

BRENNAN J: And you have got one sentence which says, "We do

not think that in this case the pretrial publicity

ought to have led the magistrate to the decision

that he came to, having regard ~o the other

circumstances as well, which were each dealt with

separately". I mean, it has got no legs, this

Glennon(2) 24 12/2/92

case; it is not going to do anything for you,

Mr Bongiorno.

MR BONGIORNO:  I put it forward simply as an example of

what -

BRENNAN J:  You can say, "Well this is another case where

the Court has not interfered to stop a prosecution for a criminal offence on the grounds of pre-trial

publicity". You could say that, I suppose, about

every case in the Anglo-Australian system, can you

not, except Tuckiar?

MR BONGIORNO:  Yes, that is certainly so, Your Honour, and I

concede that if one looks at it that way - of

course, any case that deals with this question of

pre-trial publicity will always turn on its own

facts, but the point of principle that the Crown

submits ought to be dealt with by this Court is the

question of whether pre-trial publicity can ever

vitiate a trial. That is really what the point of

principle is.

McHUGH J: Well, it depends what you mean, in the first

place, by a fair trial, does it not?

MR BONGIORNO:  Yes, the point raised by Mr Justice Deane

earlier and I, in due course, intended to deal with

that proposition, but I was simply putting at the

outset what - taking Tuckiar's case and this case

as, sort of, two examples of how one sits to what

might be called "the far end of the spectrum";

another that sits on its facts anyway further than
the case with which we are dealing, further than

Glennon's case certainly, in the context of saying

that there cannot be a situation other than the

most bizarre where pre-trial publicity can vitiate

a trial. That is the principle. I do not think I

can state it any more succinctly than that and, in

our submission, that is a question upon which the

courts of this country below this Court require

guidance.

McHUGH J: Stated that way, it is an absolute rule, although

you concede it is subject to an exception, the

exception being Tuckiar. What is the principle

upon which you determine whether the case is an

exception to this almost universal rule?

MR BONGIORNO:  The rule could be stated subject to what

might be said to be bizarre exceptions. There is

no reason why this Court could not say that other

than in a case as bizarre as Tuckiar - - -

McHUGH J: That just simply makes this case, again, a

question of fact, does it not? It could be the

exceptional case.

Glennon(2) 25 12/2/92

MR BONGIORNO:  But in the context of this case where the

Court has the facts, there would be no reason, in our submission, why this Court could not outline

the principle, as we submit it ought to be laid

down, and that it does not apply on the facts of

this case, on the facts as found.

MCHUGH J: But that is not a special leave point, is it?

MR BONGIORNO:  Your Honour, given the way in which the

Victorian Full Court decision now reads and is the

law in Victoria, it leaves the way open to
situations occurring where there will be

applications made on a much more frequent basis

than there had been in the past. The principle of

pre-trial publicity vitiating a trial will begin to

loom large in the defence armoury, which I have to

contend day after day, week after week.

McHUGH J:  Mr Bongiorno, there is a well-established

jurisprudence in the United States about this

field, is there not?

MR BONGIORNO:  A jurisprudence which is, we would submit, of

not a great deal of assistance to this Court in

dealing with the problems of this country, given

the first amendment and the fact that that changes
the whole nature of pre-trial publicity in the

United States to the point where a television

programme one night can review a trial that

finished that afternoon and conclude with the

words, "And the accused is not o·it. of trouble yet,

because tomorrow morning he faces another 42

charges before the same court". It is a completely

different situation.

So that whilst there is plenty of

jurisprudence, it is jurisprudence written in the
context of free speech and the first amendment and

the rights of the balancing of the free speech

against a fair trial in the context of free speech

holding what might be said to be a much more

prominent place in American jurisprudence than it does here, or that it might be thought to do here

in the normal course of things.

TOOHEY J: But really what you are inviting us to do,

Mr Bongiorno, is simply to say that they were

wrong, the majority, in the view they took.	They
may have been, but is that enough?

MR BONGIORNO:  I suppose every special leave application is

seeking to do that, but we go further and say that

the Court ought to deal with the question of

pre-trial publicity in the terms that I have

suggested, that there is no - - -

Glennon(2) 26 12/2/92

DEANE J:  What if it emerged that on the Sunday during this

trial, whatever is the leading Melbourne salacious

newspaper had reprinted the three Hinch broadcasts,

and that that did not come to the attention of the

trial judge, even though it could be assurr.;d that

at least one member of the jury read them or to

fit in better, on the Sunday before the trial

commenced. Your proposition is that even in those

circumstances - because that is not a bizarre

case - pre-trial publicity could not invalidate the

trial.

MR BONGIORNO:  No, there would be a remedy against that,

available to the court, the remedy of adjournment

would be - - -

DEANE J:  No. I said "in Melbourne's leading salacious

newspaper" and it did not come to the attention of

the trial judge, and the trial proceeded on the

Monday to Wednesday, and there was a conviction,

and it then emerges that in the weekend before all

of this Hinch had been printed in a paper that it

would be almost certain that at least one of the

jury had read.

MR BONGIORNO:  The Full Court remedy there would be a

re-trial.

DEANE J:  But your proposition was that pre-trial publicity

cannot invalidate the trial, which is the first

question.

MR BONGIORNO:  Perhaps I am not putting it correctly. What

I am really saying is that publicity cannot - yes,
I take Your Honour's point, and I was not putting

it as correctly as I should have - that adverse

publicity as to an accused is not a reason for

holding that he cannot get a fair trial and

therefore staying the proceedings against him.

McHUGH J: That means, does it not, that all this case is

about is whether a new trial should have been
ordered?	I is about the form of the order.

MR BONGIORNO:  No, with respect, it is not, Your Honour.

McHUGH J: Surely, whatever the source, if a court of

criminal appeal concludes that a jury may have been prejudiced irrelevantly against the accused, it has

jurisdiction to set aside the trial and the

conviction.

MR BONGIORNO:  Yes, I concede that.

McHUGH J: Well, once you concede that, it does not matter

whether it comes from pre-trial publicity or

inadmissible evidence tendered, or what. The only

Glennon(2) 27 12/2/92

qu~stion, in this case, is should the court have

s aside the conviction, which is a question of

:, and what order should be made.

MR BONGIC J: In our submission, it is in the "What order

__ .ould be made" that decides the special leave

point.

DAWSON J:	Why can you not say the Full Court was in error in reaching the conclusion which it did?
MR BONGIORNO:	I do, but

DAWSON J: That is what the argument is about. We do not

seem to have got to it yet.

MR BONGIORNO:  To take Justice McHugh's point, I would nc ·

concede that the fact that it might only be aboL.

the result of the - the Full Court might quash a
conviction, and it might then go on and take one or
two courses, either order a new trial or order the
entry of an acquittal. In this circumstance, where

it ordered the entry of an acquittal, that is

where, in our submission, even if it was right to

that point, which we submit it was not, but even if

it was correct to there, that is wherein resides

the special leave point. It must then say "All

right, there are remedies", to take

Mr Justice Deane's example, of the publication the

week before. "The remedy is that the trial will

not come on till whatever it is." The case of

Murphy, that this Court dealt with, where

Mr Justice Maxwell discharged one jury because

Murphy had been described in the Sydney press as
"an escaped convict" the night before the trial, or

the morning of the trial, I think. He discharged that jury and adjourned the trial for a fortnight.

During that fo~tnight there was the same sort of

thing repeated on three or four occasions. At the

end of the fortnight he said "No, this trial has

got to go on." The trial went on and the Court of

Criminal Appeal upheld that and was not disturbed by this Court.

And therein lies, in our submission, the special leave point, that publicity about an

accused cannot give him immunity from being tried,

subject to the bizarre exception of Tuckiar, which

might be able to be distinguish~~ in other ways

anyway, as Mr Justice Toohey su9~3sted. It may not

stand in the way of the universai principle. It may well be that the Court would take it further than I am prepared to submit and say that there is

not a situation where publicity, where the actions

of someone outside the prosecution, outside the

control of the court, outside the control of the

Glennon(2) 28 12/2/92

prosecution, can so affect the running of the court

system that somebody cannot be tried.

McHUGH J: Well, I suppose if you are wrong Ned Kelly should

never have been tried; he certainly had plenty of

publicity before.

MR BONGIORNO:  And the mischief to which the submission is

addressed is dealt with in Mr Justice Southwell's
judgment, and that is that if a principle that

sufficient publicity generated one way or another

can give someone immunity from suit, which is

immunity from criminal prosecution - which is what

Mr Justice McGarvie has said about Glennon - we

have the situation that people with the means and

wherewithal to do it can manufacture it.

DAWSON J: This is all very theoretical, Mr Bongiorno.

Theoretically it must be possible that a person can

never be tried because it may be that every time he

is put on trial the day before the trial occurs

something appears in the press which requires a

postponement of the trial, and that goes on until

he dies. But are we not really talking about here:

it was held by Mr Justice Crockett that this man

could have a fair trial; that was a prediction; was

there anything to show that that prediction was

wrong?

MR BONGIORNO:  No, in our submission, th~ was not.

DAWSON J: Well, why do we not address ourselves to that?

BRENNAN J: Is that not the very problem, that we not seem

to be addressing the conduct of the trial at all.

We have been talking about Hinch. Why do we not

look at the trial? I mean, here we have got a trial where a man was charged with a series of

offences; there was some antecedent inquiry of the

jury by the trial judge; the trial went on, I

presume, for some days; then there were a series of

acquittals and convictions. Looking at the trial

itself at the moment, there does not seem to

objectively be drawn from that any inference of

unfairness, or any incapacity on the part of the jury to distinguish between the cases which they thought appropriate for conviction and those which

they thought appropriate for acquittal. Well, we

seem to be talking about things in the air.

MR BONGIORNO:  I suppose what the Crown says is that the

majority of the Court of Criminal Appeal, in coming

to a conclusion other than that which Your Honour

has just enunciated, were wrong, and that they were

wrong in principle, wherein lies the special leave

point.

Glennon(2) 29 12/2/92

McHUGH J: Well, how are they wrong in principle?

BRENNAN J: Well then, the principle m,1st consist in the

question of what is required	order to give
somebody a trial according to	aw, and the question

is whether pretrial publicity, notorious though it

be and difficult though it be, deprives a person of

a trial according to law.	That is what the
principle is, is it not?

MR BONGIORNO: Yes. It is, Your Honour. With respect, I

would adopt that formulation of the principle as

Your Honour puts it and, in our submission, no

pretrial publicity, or no publicity, can lead to a

situation where someone gains effective immunity

from prosecution.

TOOHEY J: That might be putting it too broadly because if

there were steps available to the trial judge to

counter that publicity and he does not take them,

it may be that a conviction is liable to be set

aside, and you have to build in a number of

complainants into the proposition, do you not?

MR BONGIORNO:  Yes. I was going to come to the proposition

that there is ample power available to a trial

judge to take all necessary steps to render such

publicity as might have occurred, such that it does

not affect the granting of - the conduct of a fair

trial whatever, objectively, that might mean. If

there is any such objectively ascertainable thing

as a fair trial, or if it is simply a theoretical

proposition, given compliance with certain

procedural rules and certain procedures that the

law deems a trial to have been fair. I mean, a

fair trial, in the absolute sense, in the

philosophical sense, can be vitiated by all sorts

of things from hidden prejudices -

BRENNAN J: There is another aspect to this too, is there

not, which involves, to my mind, a matter of

principle and it is this: here you have a man who

has been charged with a series of serious offences,
been convicted of some and acquitted of some. If
the Court of Criminal Appeal's judgment stands he

goes free, never to be tried again, and a pre-trial

publicity has purchased him an immunity. Now, the

question really is whether, in the interests of the
administration of justice, that result should be
considered by this Court, as well as any other

question which might turn upon the enunciation of

the result.

MR BONGIORNO:  Yes. I mean, that immunity that Your Honour

refers to is immunity not only in respect of those

counts upon which he now presently stands acquitted

by direction by the order of the Full Court, but it

Glennon(2) 30 12/2/92

presumably extends to matters which might be

discovered subsequently, or in respect of matters

which he might not yet even have committed, given

Mr Justice McGarvie's judgment, and they are the

things to which we say the special leave point

applies, which contain the special leave point,

that this Court ought to consider the question of

publicity in the context of what the result of this

case was for Glennon and for the criminal justice

system in Victoria.

DAWSON J:  And you say that the Full Court approached this

matter in an a priori manner which was not

available to them, that they should have looked at

the particular case, and when they did there was nothing to justify their conclusion. That is an

error in principle as well.

MR BONGIORNO:  Yes. That is the error in applying the

principle that Mr Justice Brennan enunciated.

MASON CJ:  Mr Bongiorno, it seems we have exhausted your

capacity to say more on the special leave point,

and I include within that the onus that you face in

terms of the Crown being an applicant for special

leave.

MR BONGIORNO:  Yes, in respect of that I was going to deal

with	it last. It is the Benz question,
Your	Honour, and I do not think I can say any more
than	if - - -

MASON CJ: Well, we have the benefit of your summary of

argument. Now, do you want to say anything in

addition to what appears there on that point?

MR BONGIORNO:  No, Your Honour. I think that, in our

submission, the principle as expressed by

Mr Justice Brennan certainly raises - whether one

adopts the test that Your Honour set out in that

case or the harsher test, I think, that

Mr Justice Deane preferred, in either case we say

that this is of sufficient importance

Australia-wide to justify the grant of special

leave, and I do not think I can do any more other

than refer the Court to the passages in Benz from

each of the Justices who dealt with the question in

greater or lesser degree and, in our submission,

the point satisfies any of them.

MASON CJ:  I think you ought now to turn to your argument on

the substance.

MR BONGIORNO:  Yes. Your Honour, in our submission, there

are numerous ways in which a trial judge and in

which trials can be controlled short of granting

permanent stay and immunity to someone who is the

Glennon(2) 31 12/2/92

victim of adverse pre-trial publicity, and there

are numerous cases where, by way of example, the

problem has been dealt with consistent with the principle that one does not grant a stay simply

because of adverse pre-trial publicity.

They are cases which commence, I suppose, with

Murphy in this Court,(1989) 167 CLR 94, where the

Court dealt with this question, in our submission.

As I indicated in the course of earlier argument,

Murphy was one of the murderers of Anita Cobby,

which was a very violent and highly publicized

murder in Sydney, and the circumstances there were

that the trial began on 16 March 1987 and there was

a plea of guilty by one of the accused and:

That evening The Sun, a Sydney newspaper,

published on its front page a photograph of

Travers -

who was the one who pleaded guilty -

alongside the headline in bold type: "ANITA

MURDER MAN GUILTY." There followed on the

front page and on p.2 an account of Travers'

pleas and the opening of the trial which named

the accused and identified Michael Murphy in

the following terms:  "Michael Patrick

Murphy 34, unemployed, a prison escapee of no fixed address." The newspaper was on sale at

the time the jury left the court.	On the
morning of 17 March the trial judge,

Maxwell J, was asked by counsel for Michael
Murphy to discharge the jury on the ground

that the publication would result in unfair

prejudice to this client. The Crown did not

oppose the application, which His Honour

acceded to, discharging the jury in relation

to all accused and directing that the trial be

relisted to commence on the following Monday,

23 March.

So that it was adjourned for, effectively, a week,

and Mr Justice Maxwell made what might be said to

be conventional comments, the question of character

of the accused and driven to the conclusion that

the jury should be discharged.

There had been a lot of publicity about

Mrs Cobby and about the hunt for her killers, and

there had been publicity in February, there had been

a photograph of Murphy who was being sought for

questioning - that was February the previous year -

a detailed recital of his prison record a year

before the trial:

Glennon(2) 32 12/2/92

with the fact that he had escaped from

Silverwater Gaol on 27 December 1985 and was

still at large.

Unhappily, later on the same day the jury

was discharged, and on the following day,
reference was made in the media, particularly
over the radio, to the fact that the jury had
been discharged by reason of publication of
the description of Michael Murphy as an

unemployed prison escapee of no fixed address.

There were those broadcasts.

When the Court reconvened on 23 March, an

application was made ..... to adjourn the trial

for a period of six months.

No one was suggesting that there should be a

permanent stay granted by reason of his disclosure

of his priors.

The application was based upon the publication

in The Sun on 16 March and upon the further

publicity of 17 and 18 March. His Honour

rejected the application.

His Honour gave reasons:

"This is an unusual trial attended with great

publicity from the moment of detection through

to the present time. It will always be

attended with great publicity and no doubt if

the trials were to be adjourned part of the

history would be regurgitated; that at an

earlier stage in March 1987 a trial had been

discharged because of some piece of offending

journalism in respect of the accused

Michael Patrick Murphy. I am fully conscious

of the right of an accused person to a fair

trial.	I am also conscious of the interests
of the community in having trials brought on

with regularity and expedition."

His Honour then refused the adjournment. This

Court, in the joint judgments of Your Honour the
Chief Justice and Mr Justice Toohey, refer to the

remedies, at the top of page 99, that courts can

use:

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.

Glennon(2) 33 12/2/92

It may be that in a part~8ular case none

of these remed ~swill be fully effective.

But it is misl_1ding 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.

Their Honours then refer to Hubbert, a Canadian
case, and comments by the Ontario Court of Appeal.

There is reference to an old United States case.

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 -

et cetera. The Court goes on at page 101, in the

centre of the page:

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 succE1 3ful.

That is true just as it is true that th~re 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.

Those comments by Your Honour the

Chief Justice and Mr Justice Toohey set out, in our

submission, statements that in the context of what

is a fair trial, the law accepts the possibility

that jurors may have their own views about things

that are not ventilated and not known, but that
that has to be acce~~ed as part of the human

institution of trial.

Mr Justice Brennan, at page 123, after talking

about some of the contempt cases, says:

Glennon(2) 34 12/2/92

In this case we are not concerned with

contempt of court but with a related question:

how can a trial judge avoid damage to the

fairness of a trial in a sensational case when

one of the accused is vilified by publicity

alleging that he is a prison escapee. The

jury having been discharged on one occasion,

can the trial proceed after republication of

the information in reports of the discharge?

The avoidance of delay in a trial as well as

bias for or against an accused are both

aspects of a fair trial. Sometimes those

aspects are in competition. When they are,

the trial judge must form a prudential

judgment -

There is no suggestion in any part of Murphy's

case, by any of the Justices - and it would appear

certainly, it was not suggested by counsel for

Murphy - that in this case resided some right of

Murphy to have his trial stayed for ever, because his prior convictions had become a matter of

notoriety or had been published.

In concluding his judgment Mr Justice Brennan

points to the difficulty that the trial judge

faces:

The decision of a trial judge as to the

best means of securing a fair trial in the

case of prejudicial pre-trial publicity will

be always difficult and often finely balanced.

It is, of course, a judgment subject to review

on appeal but the opinion of the trial judge,

who can appreciate most acutely the atmosphere

of the trial, is entitled to the greatest

weight -

et cetera. Mr Justice Deane at page 125 adverts to

the difficulty that faced Mr Justice Maxwell and

talks about adjournments of criminal trials. It

goes on: 

the brutality -

et cetera -

meant that it was impossible to be confident

that one or more members of any future jury would not have acquired and retained either

the information that one of the accused was a

prison escapee at the time the crimes were

committed or some other comparably prejudicial

piece of inadmissible information about one or

more of the accused.

Glennon(2) 35

So the Court acknowledges there that a fair trial

does not exclude, necessarily, knowledge by a juror

in the future - in an adjourned trial, knowledge by
a juror of something that occurred before, and in
our submission, nor can it.

The same considerations in the same case in the New South Wales Court of Criminal Appeal were

referred to by His Honour the Chief Justice,

Justice Street. That is reported (1987)

37 A Crim Rand His Honour there, at page 122,

dealt with the ground. It started on page 121 and

goes on to page 122 and he reviews the facts and at

the bottom of page 122:

It is argued on behalf of all the appellants, but principally by Mr Hidden QC,

on behalf of Michael Murphy, that the trial

judge erred in exercising his discretion

against the application to adjourn the trial

for a period of six months. This was sought

in order to allow the publicity to fade into

the past. He relies upon an analogous line of

authority in the field of contempt -

and refers to Willesee and Hinch in this Court and:

The seriousness of the publication of a criminal record is noted in those two cases.

Mr Hidden is undoubtedly on sound ground

in his contention that the period which might elapse between the publication of potentially

prejudicial material and the date of the trial
is relevant in determining whether the

published material has a real tendency to

interfere with the course of justice.

And refers to another case. Nowhere there does

Mr Justice Street refer to the possibility - no one

seems to have suggested the possibility that one of

the remedies for undue publicity would be a

permanent stay.

He refers finally to his own judgment in an

unreported case of Smith, bottom of page 123, and

makes again what might be said to be conventional

statements about judges talking to juries and about

the possible function that juries carry out. In

our submission it is accepted as part of the jury

system that is applied by courts in this country

that jurors do carry out their functions in

accordance with their oath, and Mr Justice Street

says, as I suggest, in what might be said to be

conventional terms, the sorts of things that are

said about juries in a multiplicity of cases

concerning attempts to overturn jury verdicts in

Glennon(2) 36 12/2/92

courts of criminal appeal and courts of civil
appeal and in this Court, and from time to time

jurors comply with their oath and the law accepts

that.

This proposition that jurors could be trusted to comply with their oath is, at least, tacitly

refuted by the Victorian Full Court or by those two

judges who upheld the appeal. In other cases to

which I will briefly refer by reference only to

their names pre-trial publicity has been dealt with

in a multitude of different ways. Publicity not

only pre-trial, but publicity during a trial. In

Vaitos, (1981) 4 Aust Crim R, there was television

coverage during a robbery trial - robbery or
dishonesty of some kind - photographs of the

accused's house looking like an Aladdin's cave -

there was a question of discharge of the jury and

there the trial judge did not discharge the jury

and the Full Court of Victoria reviewed the power

to discharge a jury and came down with the

proposition that it was only when there was a
pressing need to discharge a jury would that occur,

but it is in the context again of what was likely

to have vitiated the trial having regard to the
television programme. There was, I should add, a

gloss in that case in that the accused - it was a

rape trial - he conceded he was a burglar but said

he was not a rapist, so that the court, to some

extent at least, relied on the proposition that it

was not doing him any harm to say that he had a lot

of stolen goods.

But, again, the court could deal with the

problem confronting it. It was not said that he

did not get a fair trial by having that material,

possibly, known to the jury. In Munday, (1984)

14 A Crim R 456, Munday, himself, participated in

radio programmes. He had allegedly committed a

murder inside Parramatta gaol, I think, and there

was considerable broadcasting of the fact that he

was already doing a very long term of imprisonment;

that he had a non-parole period of 56 years and
that he was awaiting trial on a murder charge, and

all of that occurred and Mr Justice Roden did not discharge the jury. There was no suggestion that

that was going to result in Munday being able to

apply to the court for a permanent stay, and no

suggestion that such would be part of the range of

remedies that would be available to him.

Sir Laurence Street, again, referred to his own judgment in Smith, which appears to have got into

the reports by then, and deals with it in terms of

a discharge of the jury.

In Gallagher, (1987) 29 A Crim R 33, infamous

case in Victoria, this again was a question of

Glennon(2) 37 12/2/92

discharging a jury because here Gallagher was

charged with secret commissions. The person who

had given him the secret commissions had already

pleaded guilty and been dealt with and he was then

a Crown witness, and that fact was made the subject

of publicity and Chief Judge Waldron, I think it

was, who was trying Gallagher, refused a discharge

of the jury and the Full Court again dealt with the

question of juries following directions, and juries

doing their job according to their oath, and upheld

the decision of the trial judge to deal with the matter in that way. There was no suggestion, in that case, that the knowledge by any juror of that

prejudicial material would vitiate the trial. At

the end of the judgment at page 41, Their Honours

say, it is a joint judgment:

As we observed earlier, ,e sut 0 tance of

the prejudicial material has ;en in the

public domain for several years and repeated

from time to time. One should not assume that

all jurors would be unaware that Herscu

pleaded guilty to charges of corruptly giving

secret commissions to the applicant or that

Herscu had been criticised by the trial judge

at the conclusion of the first trial of the

applicant.

So that the court accepted, and in our submissions the law accepts, that from time to time jurors will

be in possession of knowledge, of one kind or
another, prejudicial to an accused which they are

required to, and the law accepts that they do, put

it out of their minds.

There are two Canadian cases that I would

mention again as illustrative of the way in which

courts deal with this problem short of the way in

which the Victorian Full Court did. The first is

Regina v Bengert, (1980) 53 CCC (2d) 481. This

case, which has been copied so far as it is

relevant to the ground of adverse publicity, is a decision of the British Columbia Court of Appeal,

and is illustrative again of the way in which

courts deal with this problem. I might suggest

that the publicity in this case puts the publicity
that Glennon suffered into perspective. At

page 525 the court begins to deal with the ground

that:

The trial judge erred in refusing to declare a

mistrial (a) as a result of the prejudicial

and inflammatory publicity before and during

the trial; (b) as a result of reference

during the trial to the sale of heroin or,

alternatively, in refusing to sever the trial

of some of the appellants -

Glennon(2) 38 12/2/92

It is ins:.._ .::tive to see that at the bottom of

page 526 the publicity that was the subject of the

criticism. This was a news item on the day of the

opening of the trial:

"Sheriff's officers were particularly

edgy about security when the accused arrived

for their court appearance this morning.	The
subject of the case:	19 pounds of cocaine

seized from a courier at the Vancouver airport

last April. The Crown alleges it was a

shipment to a major cocaine syndicate headed

by this man, William 'Fats' Robertson of West

Vancouver. Robertson has been the subject of

numerous police investigations over the years,

involving drugs and stolen property, mainly,

but no significant charges have stuck so far.

The charges of conspiracy to traffic in

cocaine follow a two-year joint police

investigation -

et cetera. Four million dollars in sales is

mentioned and the taxpayer is said to be up for a

million dollars in relation to the trial.

The trial judge dealt with the matter by

telling the jury they should disregard it and at

page 527, at the end of the first paragraph, the

trial judge says:

When the selection of the jury had been

completed and the accused had been placed in

the charge of the jury, I told the jury in the

most emphatic way that they were bound to try

the accused on the evidence heard in court,

and that they must disregard anything they had

read about the case in the papers, anything

they had heard about it on the radio and

anything they had seen on television.

It then goes on, the trial judge, it seems to be a

report to the appeal court - - -

TOOHEY J:  Mr Bongiorno, in the case that we are concerned

with, there does not appear to be any criticism of

the trial judge, which would make it a different sort of case from some of those to which we have

been referred, in which the argument was that the
trial judge could have done more than he or she

did. As I read Justice McGarvie's judgment, what he is really saying is "Well, the trial judge did

what was appropriate, but nevertheless the

conviction was, by reason of the weight of

publicity, one that must be set aside as being

unsafe or unsatisfactory".

Glennon(2) 39 12/2/92

MR BONGIORNO:  Yes, so it is rea~ly on that basis that what

the trial judge said in the case, as Your Hc~our

has correctly pointed out, has not been the subject

of criticism by anybody as being - - -

DAWSON J:  And what it was doing was departing from its own

previous decision without giving any grounds for so doing, its own previous decision in the form of the

decision of Mr Justice Crockett of the

Supreme Court.

MR BONGIORNO: Yes, other than that it disagreed with him.

DAWSON J: Yes.

MR BONGIORNO: That is all.

DAWSON J: But this was not an appeal and the two decisions

stand, and one is inconsistent with the other, and

in that situation you say, "Well, is there any

ground for the inconsistent dec~sion, the

subsequent decision, being taken?", and it is

impossible to point to any.

MR BONGIORNO:  Yes, I see the force of what Your Honour is

saying and the end point to which it leads is - - -

TOOHEY J: That is putting the argument in a rather

different way, is it not?	I mean, both ways may be
open to you.	One is to attack the decision of the

Full Court by reason of the way in which it dealt

with the matter in the light of the decision

earlier taken not to grant a stay, and that really

focuses on what the Full Court did vis-a-vis the

court below. The other way, I suppose, is to start

with the decision of the Full Court and proceed to

demonstrate that there is an error of principle in

it.

MR BONGIORNO:	Yes.
DAWSON J: Perhaps one can take it further in this way:

that the judge in the county court was bound by the

decision of Mr Justice Crockett - let us not look

at it any technical way - and it was conceded that

nothing had changed the situation between

Mr Justice Crockett's decision and the time that he

was asked to refrain from embarking on the trial,

and he applied Mr Justice Crockett's decision and

embarked on the trial. Now, when it got to ~he

Full Court it was incumbent upon those who .. 1ught

to establish it that there had been some error in

the course that the trial judge adopted - where is
the error in proceeding in accordance with the

decision of the Supreme Court - and that that is a

fundamental matter in the administration of

justice.

Glennon(2) 40 BONGIORNO 12/2/92

MR BONGIORNO:  Yes. I see the force of what Your Honour is

putting.

MASON CJ:  Mr Bongiorno, time marches on. You referred us

to a number of cases. Now, are there any more

cases you want to refer us to, because these are

all illustrations and examples, are they not?

MR BONGIORNO:  They are, Your Honour, but they are

illustrative and of assistance in this way, that in

not one of them does anybody ever suggest that

there could be a situation where publicity would be

such that there should be no trial. That is not

suggested.

MASON CJ: Well, we can take that to be the position then,

unless Mr Dane is able to instruct us to the

contrary.

MR BONGIORNO:  And, indeed, there is no case, at least no

case that we have been able to find, where any

court has ever granted a stay or - - -

MASON CJ: There is a limit to the amount of assistance we

can derive from being referred to cases which

enable you to say, "Look, in this case they didn't

say".

MR BONGIORNO: Yes, I would respectfully concede that,

Your Honour.

BRENNAN J:	Does the other Canadian case add anything?
MR BONGIORNO: No, it does not, Your Honour.	It is simply

illustrative of the same sort of thing and talks

about challenge for cause as being one of the ways

that the trial process can be protected in the same

sort of circumstance.

BRENNAN J: Well, you may as well give it to us.

MR BONGIORNO: It is Sherratt v Reg, a judgment of the

Supreme Court of Canada of last year. It follows

on from the case that His Honour the Chief Justice

referred to in Murphy, of Hubert Hubbert, and it is

a decision of the Supreme Court on appeal, I think,

from Manitoba, and there is nothing in it that I

seek to take the Court to. It simply illustrates the same point; a decision of Madam Justice Dube.

I then pose the question: what is the basis for staying a prosecution, staying a trial, staying

a prosecution that is properly brought anyway? It

seems that what the Full Court were doing here was

talking about abuse of process in circumstances

where that term is inappropriate.

Glennon(2) 41 12/2/92

In Jago, which this Court decided in 1989, the

question of abuse of process was dealt with at
length and -

MASON CJ: But it was not dealing with this sort of problem,

was it?

MR BONGIORNO:  No, it was not dealing with this sort of

problem, Your Honour, but it was dealing with the

circumstances in which a prosecution was unfair to

the point where it ought not to proceed, and it is

an analogous situation, in our submission, to the

circumstances where it is suggested here that this

prosecution was so unfair that it ought not to have

been allowed to proceed because, after all, the

Full Court's decision is not simply saying, "The trial miscarried beca~~e of the pre-trial

publicity", it is rea: f saying,

"Mr Justice Crockett was wrong and he ought to have

found otherwise than he did". So it is really

saying that Judge Neesharn was therefore wrong and

that he ought not to have allowed the trial to go

on.	So that it is relevant in that way.
In Jago, the question of "fair trial" is dealt

with, particularly by Mr Justice Brennan, and it is

to that part of the case that I will refer the

Court because it is there, in our submission, that

some assistance can be derived. The first thing I

would say is this, that it is quite inappropriate

to discuss what occurred in this case as an abuse
of process.

An abuse of process, of its nature, in our submission, must stern from something that one of

the parties to the litigation consciously does by

way of abusing the process of the court, whether

one - - -

TOOHEY J: Would anyone describe this case as an abuse of

process case?

MR BONGIORNO:	The present case, Your Honour?
TOOHEY J: Yes.

MR BONGIORNO: No, Your Honour, I would not. It is a misuse

of the term, in our submission, to call it an abuse of process. There is no suggestion, in relation to

this part of the case certainly, that the

prosecution ought not to have proceeded. There is

a suggestion that the court, for reasons outside

the control of the prosecution, ought to have

stopped it, but it is not an abuse of process when

one looks at the term, in our submission, in the

way it ought to be used. It ought to be confined

to those cases where one of the parties to

Glennon(2) 42 12/2/92

litigation, whether it is civil or criminal, uses

the processes of the law for a purpose other than

that for which the process is designed.

MASON CJ: Well, are we concerned to look at this question?

If it is not suggested that it is an abuse of

process, why worry about it?

MR BONGIORNO:  Because the judgment of the Full Court

discusses the problem in terms of abuse of process.

That is the only reason, Your Honour. But in our

submission the assistance to be derived from Jago's

case comes from Mr Justice Brennan's judgment at

the bottom of page 46, where he deals with this

Court's decision in Barton in 1980, in t~rrns of:

The power which was acknowledged to exist

in Barton is a power which has a dual purpose:

"to prevent an abuse of process or the

prosecution of a criminal proceeding in a

manner which will result in a trial which is

unfair when judged by reference to accepted

standards of justice". One purpose of the

power is to ensure a fair trial, the other to

prevent an abuse of process.

The concepts, in our submission, are different.

A power to ensure a fair trial is not a power

to stop a trial before it starts. It is a

power to mould the procedures of the trial to

avoid or minimize prejudice to either party.

And then, in the next paragraph in that case upon

which we rely:  ·

Obstacles in the way of a fair trial are

often encountered in administering criminal

justice. Adverse publicity in the reporting

of notorious crimes (Murphy v The Queen),

adverse revelations in a public inquiry

( ... ELF) absence of competent representation

(Mcinnis v The Queen); (MacPherson v

The Queen), or the death or unavailability of

a witness, may present obstacles to a fair

trial; but they do not cause the proceedings

to be permanently stayed. Unfairness

occasioned by circumstances outside the

court's control does not make the trial a

source of unfairness. When an obstacle to a

fair trial is encountered, the responsibility

cast on a trial judge to avoid unfairness to

either party but particularly to the accused

is burdensome, but the responsibility is not

discharged by refusing to exercise the

jurisdiction to hear and determine the issues.

The responsibility is discharged by

Glennon(2) 43 12/2/92

controlling the procedures of the trial by

adjournments or other interlocutory orders, by

rulings on evidence and, especially, by

directions to the jury designed to counteract

any prejudice which the accused might

otherwise suffer.

In our submission, therein lies the remedy

that the accused was entitled to in this case, if

indeed any remedy was required, and there was none,

in our submission, required by 1991, given that the

last publicity accepted by all courts who have

looked at it was in 1987, some four-odd years

earlier. So that no remedy was required. As

Mr J.~stice Crockett found, there was no remedy

required, and Judge Neesham found no remedy was

required at the time he was tried, but if there had

been, it was within that passage in

Mr Justice Brennan's judgment that the remedy would

have been found. His Honour concedes that:

More radical remedies may be needed to

prevent an abuse of process. An abuse of

process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve -

and it is there that we say the distinction between

factors which might create an unfair trial and an

abuse of process should be drawn. It may well be

that the prosecution could indulge in some activity

which, as is conceded, could result in the

necessity for a permanent stay. There could be

situations and have been situations where permanent

stays have been granted, and that could occur.

But that is an abuse of process. That is the

prosecution abusing the process in some way,
charging somebody with an offence after they have
already been dealt with on an offence arising out

of the same set of circumstances or acting

oppressively in some way, charging somebody with a
substantive offence after a conspiracy, or a

conspiracy after a substantive offence, or one or

other; things such as that where the prosecution

is acting, one of the parties to the litigation is

acting.

On the civil side, the analogy is with cases

like Grainger v Hill, the old case of issuing the

proceedings for an ulterior purpose; the case in

New South Wales of Packer v Meagher, where Packer sued Meagher, QC for, as Mr Justice Hunt found,

ulterior purposes. They are abuses of process.

This situation which is said to have occurred here,

which we say did not, is not an abuse of process at

Glennon(2) 44 12/2/92

all; it is a circumstance which has arisen quite

externally.

If one takes that passage of

Mr Justice Brennan, and looks at the cases which I

have given as examples, it can be seen that that is

the traditional way in which the courts have dealt

with this problem; they have not dealt with it by a

permanent stay. It might be necessary for a judge,

in some communities, to take steps to counteract

what he perceives to be or what might be

acknowledged to be, a racial prejudice or a

religious prejudice. It may be that a particularly

way out - person of an extreme religion is being

tried in a community of people of equally extreme,

but religious views of the opposite persuasion. It may be necessary for the judge to order a change of

venue; it may be necessary for him to give stricter

warnings to a jury. That is the sort of action

that the courts have come up with. Local venues

and change of venue is a constant way in which

courts deal with perceived or possible prejudice or

bias in juries, where local communities may know

too much about an event, but even, as I was saying

earlier, the courts of this country, particularly

in the country areas, have to operate in the real

world, and they operate in some instances in

circumstances where one could be morally certain

that the jury know a lot more about this trial than

they hear from the witness box.

MASON CJ:	You have made that point earlier.
MR BONGIORNO:	And, as His Honour says, the death or unavailability of a witness may contribute to the
unjustness or harshness of a trial, and there the
exercise of a discretion to allow the use of
statements, say in a civil trial, or to allow depositions in a criminal trial, may overcome the
problem. If the accused wants depositions to be
used of a dead witness, well the law can respond in
that way without granting the immunity. The remedy
has never been a permanent stay in circumstances
other than where there has been an abuse of
process.

DAWSON J: Mr Bongiorno, can I just pose one question? The

order of the court was, it seems to be, that the
convictions be quashed and that verdicts of

acquittal be entered. How can that be justified on any view of it? If the reasons of the court are as

they are, the appropriate order would have been, at

the very most, that the convictions be quashed and

that a permanent stay be granted.

MR BONGIORNO:  I suppose what the way in which

Justices McGarvie and and Nathan judgments reason,

Glennon(2) 45 12/2/92

they finish up with the proposition that the reason

for their decision is not - the legally expressed

principle is that the verdict was unsafe and

unsatisfactory. Having decided that the trial

miscarried for that reason and then having decided
that there could not be another trial, they have

ordered an acquittal, I suppose it raises the

conundrum that if Judge Neesham at the end of the

evidence had decided because of some pre-trial

publicity that he then learnt of, it raises an

inconsistency. Clearly, he could not direct, or

ought not to have directed a jury to acquit, he

could not, at the end of the evidence, give a

direction to acquit on the basis that there was

some publicity during the trial.

McHUGH J: But it turns on the terms of the common form

criminal appeal statute, does it not?

MR BONGIORNO:  Yes.

McHUGH J: Just relying on my recollection, it says that if

you uphold the appeal on one of the grounds then

you may order a new trial or order an acquittal?

MR BONGIORNO:  Or order an acquittal, yes. That is probably

so, but -

DAWSON J: Order a new trial and stay it.

MR BONGIORNO:  And stay it, yes.

DAWSON J: That more readily, or nearly, reflects the

situation: to enter an acquittal gives this man a

status to which the circumstances do not entitle

him to.

MR BONGIORNO:  Yes, exactly. The reason, as my learned

junior reminds me, of course is that Their Honours

were thinking of, right at the end of their

judgments - Mr Justice McGarvie was with Tuckiar

because he mentions it and says, "I will have to do

the same as was done in Tuckiar", which was to -

the words escape me, but I think it was:

allow the appeal, quash the conviction and

judgment and direct that a verdict and

judgment of acquittal be entered.

As Mr Justice McHugh has observed, probably that is

the form of the common criminal appeal statute.

DAWSON J: Well, we need not waste too much time about it.

MR BONGIORNO:  No, but when one considers what the trial

judge could have done, he certainly could not, one

would have thought, directed a verdict of acquittal

Glennon(2) 46 12/2/92

himself on this ground.	He could only ever have
stayed the trial.	He could not have done any more.

There are some passages in Barton, (1987)

147 CLR 75, to which I would like to refer the

Court. In the joint judgment of the Acting

Chief Justice and Mr Justice Mason at page 96,

there is reference to the power of the court, its

possessing of:

all the necessary powers to prevent an abuse

of process and to ensure a fair trial -

and reference to Connelly and Humphreys, and at

page 97 in the second paragraph:

The High Court of Australia has not yet

had to decide whether the power of the courts

to prevent an abuse of process extends so far.

But the courts in this country have not

hesitated to assert that they possess power to

do justice to an accused person, who has been

deprived of the benefit of committal
proceedings, by discharging him ..... or by

staying the trial -

et cetera. This, of course, is dealing with a

specific prosecution situation, not a situation

brought about by the filing of an ex officio

indictment and not by any external unable-to-be-

controlled situation.

At page 103, Mr Justice Stephen acknowledges

the same thing in the first paragraph of his

judgmer,t:

a power to postpone or stay ..... to ensure that

the accused receives a fair trial.

Mr Justice Wilson, at 10 - - -

MASON CJ: But all this is well accepted, Mr Bongiorno. You

do not need to spend time on that.

MR BONGIORNO:  It is, Your Honour, yes. My point in citing

it, Your Honour, is only to point out that when the

Court is talking about stays in this situation, it is talking about, as it were, reacting to something

that one of the parties, ie, in this case the

prosecution, has done, not to some external event

which has occurred over which neither party had any

control.

So far as the actual mischief which occurred here, and that is the mention of prior convictions,

upon which Mr Justice McGarvie places so much

emphasis - and indeed, one would suggest that had

Glennon(2) 47 12/2/92

it not been for the mention of prior convictions,
he would not have gone the step of going as far as
saying that this publicity had vitiated the trial,

that if the publicity had been short of mentioning

Glennon's prior conviction, he would not have gone

that far.

There are, of course, many circumstances where

a jury has knowledge of an accused's prior
convictions. Just to run through them, there are
situations where, under the common criminal
evidence statute, those statutes which derive from
section 1 of the Criminal Evidence Act 1898 of the
British Parliament found in section 399 of the

Victorian Crimes Act, the question of an accused's

prior convictions may be raised in the well known

circumstances contemplated by that section.

So that a jury apprised of an accused's prior

convictions has to be dealt with by the trial

judge, knowing that he has the prior convictions.

The trial judge is required to charge the jury so

that questions of propensity are omitted from their

considerations, and that is not something that the

law has any great problem with.

It is circumscribed and fenced about with

many, many safeguards for an accused, so that he

does not get himself into that position easily.

But having got into the position, he still has his

trial and he has it with the knowledge that he has

certain prior convictions and with the jury being

instructed by the judge that they must not use

those convictions as evidence of a propensi	to
commit the crime charged.

That is not an uncommon situation, and there are countless cases where it has been dealt with

and where the safeguards have been discussed. I

give the Court just two citations, the classic case

on prior convictions, Maxwell v DPP, (1935) AC 309;

then in this Court, Attwood v R, (1960)

102 CLR 353, the question of the applicability of

section 1 and how it is to be applied are

discussed.

There are circumstances where similar fact

evidence gets before a jury in terms of a prior

conviction or a prior proof of previous criminal

activity legitimately gets before a jury in

circumstances again hedged about with al sorts of
safeguards for the accused, but nevertheless gets

legitimately before a jury in the well-known

circumstances into which there is no need to go any

further.

Glennon(2) 48 12/2/92

Offences committed in gaol: the jury, of

necessity, hears evidence that the accused was a

prisoner at the time and even if it does not hear

what his offence was, he sometimes might want to

bring it out himself so that he is not branded a

murderer when he is only a non-payer of parking

fines, but a jury hears that evidence, they are

directed by the trial judge appropriately.

Admissions made by an accused in gaol on

another offence: notorious cases, some of them

dreadful cases that these courts have had to deal

with, certainly at the Court of Criminal Appeal

level, where evidence has been given of confessions

made to fellow prisoners. There the accused may be

in gaol on some completely different offence which

may or may not come out, but again he might bring

it out himself if he considers it appropriate.	The
law does not prohibit the evidence of prior convictions getting before a jury, it simply
prohibits the use of prior convictions in an
inappropriate way, ie to suggest propensity.

Again, there are cases where an accused puts

up his record as some sort of defence. He might

want to explain why he was running away, because he
was well known to the police and he thought they
were going to round up the usual suspects of whom

he was going to be one. He might want to suggest a

motive for being framed, so he puts his own prior

convictions in to show that he is much hated by the
local constabulary. Again, the trial judge is
required to tell the jury that just because he has
got ten prior convictions, which he has raised
himself, they must put the matter of propensity out

of their minds.

MASON CJ:	What do you say about the reliance of the majority in the Full Court on the statements made
by members of this Court in Hinch, because they seem to have taken the view in the Full Court that
the statements made in the Hinch case, both by
members of this Court and the Full Court of the
Supreme Court of Victoria, indicated that a fair
trial could not be had?
MR BONGIORNO: Yes.	In our submission, there are a number

of points - I was, in fact, about to come to that

very matter. Neither this Court nor the Full Court

of the Supreme Court contemplated, when it dealt

with Hinch, that there would be a permanent stay

based upon the matters which had already occurred.

There is no suggestion in any of the judgments of

any of the judges from the Full Court upwards, or

from Mr Justice Murphy upwards, which suggested

that anyone contemplated that there would be a

successful stay application.

Glennon(2) 49 12/2/92

MASON CJ: But it is true to say, is it not, that

Justice Wilson said in his judgment that what had

occurred might wellnigh make a fair trial

impossible?

MR BONGIORNO:  Yes, but he was saying that - that is at the

middle of page 45.

MASON CJ: It is conditional: "which, if known to the jury.

MR BONGIORNO: Yes. There are two things I would say about

it: firstly that it is conditional and secondly,

of course, His Honour is not addressing himself to

the question that Judge Neesham had to address

himself to initially and that Mr Justice rockett

addressed himself to, and that was the qw tion of

whether there could be a fair trial. He was simply

offering the observation that, given what Hinch had

done, there could be circumstances where a fair

trial was wellnigh impossible, but His Honour was

not, in our submission, inviting an application by

Glennon at that point to say, "Well, all right,

there cannot be any trial". If this Court had

taken the view that there was a principle that a

fair trial would be so compromised by what Hinch

had done, then two things follow.

One, one would have expected it to have been

expressed in those terms and it would have

reflected, if not in this Court, because this Court

did not deal with the question of penalty, but it

would certainly have been reflected in the penalty

that was imposed, one would have thought, upon

Hinch, on the ordinary principles that the effect

of the contempt is one of the matters that goes to

sentencing. There is no suggestion in the

Full Court judgment, by the two majority judges

there, that they considered that, at some future

time, somebody was going to succeed in getting this

trial stayed on that basis.

DEANE J:  Mr Bongiorno, what material was before the Court

of Criminal Appeal? Was it identical to the

material before Justice Crockett?

MR BONGIORNO: Well, as to that question - as to the

relevant question - the Court of Criminal Appeal, of course, would have had the summary of argument

which is exhibited to the affidavit in support of

this application -

DEANE J: Well, did it have the transcript of the trial?

MR BONGIORNO:  Yes, it did, Your Honour, have the

transcript.

DEANE J:	And any other material?
Glennon(2)	12/2/92
MR BONGIORNO:	I am told by my junior, who was in that

matter, Your Honour, that all of the exhibits that

were before Mr Justice Crockett were before the

Full Court, but there were videos that to them in his judgment which my junior believes

the Full Court did not, in fact, look at.	He
received them but he did not play them.

DEANE J:  One aspect of this which is an impression - I do

not know whether one can take any notice of it - is

that one had the impression that the question of

whether Hinch was rightly put in gaol or whether he
was justified in exposing the evil about this man

was a question of considerable public interest in

the Victorian community. Was there anything about

that, or is the impression completely mistaken?

TOOHEY J:  I think there is reference to it in

Justice Nathan's judgment, is there not, to some of

the post-Hinch publicity?

MR BONGIORNO:  I think it is true to say there has been

unanimity among every judicial officer who has ever

looked at this case that the conduct of Hinch was

reprehensible in the extreme. I do not think there

has ever been any suggestion made in court

that - - -

DEANE J:  So that what has an impression of a television

picture of somebody being unfairly taken off to

gaol from a dinner party - - - -

McHUGH J: There is reference in Mr Justice Crockett's

judgment.

MR BONGIORNO:  Yes, there was certainly

TOOHEY J: It is page 95, Mr Bongiorno.

MR BONGIORNO:  - - - - without now being able to recall the

exact circumstances, there was certainly a lot of

television coverage of Hinch going to gaol and

being released from gaol, and it is referred to, I

think, in the judgment of Mr Justice Nathan who

deals with all of this in considerable detail in

his judgment.

DEANE J:  It is page 95. But does that not take this case

into the areas of the bizarre that you were talking

about where what is involved is an issue dividing a

community about whether a leading figure in the
community should be imprisoned for having disposed

the evil of somebody awaiting trial?

MR BONGIORNO:  No, in our submission, not, Your Honour.

That situation is - - -

Glennon(2) 51 12/2/92

DEANE J: I am not suggesting it leads to result. Is it not

a relevant consideration?

MR BONGIORNO:  I would answer that by saying this, that

every piece of publicity generated in the way that

television generates news or generates this sort of

thing could always be characterized as taking one
view or the other, and there would always be

situations I suppose where, on one side or the

other, there are opposing views generated. I would

not, with respect, concede that the situation that

occurred here was any more than that of a

self-styled protector of the public morals, who was

attempting to do whatever it was he did and get

this message across. But I would not, with

respect, concede that that make3 it a bizarre

situation.

DEANE J: But if you look at page 95, the implication is

that to a considerable section of the public he had

been wrongly imprisoned for disclosing the evil of the accused. What I am suggesting to you is, that

is quite an extraordinary situation in terms of

affecting a jury in a particular trial?

MR BONGIORNO:  I suppose the nature of any case that raises

this issue is going to have its peculiarities, and

that is one of them in this case.	I would
not - - -

DEANE J: It does not really affect the principle possibly,

but all I am suggesting to you is that it is really
not accurate to view this case simply as a case

where somebody's conviction of some prior offence

may have become known to the jury. When you look

at what is in the second-half of page 95, it is

quite apparent, I would suggest to you, that the

case is something that cannot be simply dismissed

as being simply that.

MR BONGIORNO: In the context, Your Honour, of something

which occurred five years before the trial, that

would have to be one of the factors taken into

account in assessing its - - -

DEANE J: That may be.,

MR BONGIORNO:  I see the point Your Honour is making, and I

would simply answer it by saying that that was what

happened in this case. One could imagine other

cases where there was public outcry about a media

personality going to gaol. It is the nature of the
beast that they are able to self-generate the

publicity that best suits their purpose at the

time.

DEANE J: Frequent, favourable and widespread newspaper.

Glennon(2) 52 12/2/92

MR BONGIORNO:  Yes.

MASON CJ:  Mr Bongiorno, we will have to adjourn. How long

is the balance of your argument?

MR BONGIORNO: Very little, Your Honour; perhaps another

quarter of an hour, 20 minutes.

MASON CJ:  I would have thought myself that your case should

have been presented within the space of the

morning. It seems to me to have taken longer to

present than should have been the case.

MR BONGIORNO:  I could perhaps truncate it by - I was simply

going to expand on a couple of points in the

written outline, but there is very little in that

that I think will be of assistance to the Court.

MASON CJ:	You might review it when we resume.
MR BONGIORNO:	Yes, I will, Your Honour.
MASON CJ:	We will resume at 2 o'clock.

AT 1.00 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.01 PM:

MASON CJ: Yes, Mr Bongiorno.

MR BONGIORNO: There are only two matters that I seek

further to put to the Court. The first,

Your Honours, is to take up the comments that

Mr Justice Brennan made early this morning on what material was before the Court as to what occurred

during the trial. The references are these: on

page 5 of the judgment of Mr Justice Southwell,

this passage appears:

Immediately before the arraignment of the

applicant the trial judge addressed about half

of the jury panel; he referred to the date,

place and nature of the offences, the names of

the complainants, to the fact of the

applicant's having been a Catholic priest, to

the Peaceful Hand Youth Foundation, and to the

schools at which the applicant had taught the

complainants - - -

BRENNAN J:  What page is this in the application book?

Glennon(2) 53 12/2/92

MR BONGIORNO:  I am sorry, Your Honour, page 106 of the

application book.	I am sorry, I had the wrong
reference.

BRENNAN J:	Do we have the transcript, Mr Bongiorno?
MR BONGIORNO:	We have the transcript of the charge,

Your Honour, not of the evidence in the trial.

This is a transcript of the judgment.

DAWSON J:  Where did Mr Justice Southwell get this

information from?

MR BONGIORNO:  He had the transcript of the trial.

BRENNAN J: Where is it?

MR BONGIORNO: It is not here, it has not been exhibited in

this Court and it is not, in fact, physically in

Canberra, but this is - - -

DAWSON J: Well, can it be made available?

MR BONGIORNO:  Of course it can be made available,

Your Honour, and I can ensure that is done - - -

BRENNAN J:	Can the charge be made available?
MR BONGIORNO:	The charge is here, Your Honour.
MASON CJ:	We need to be provided with seven copies.

MR BONGIORNO:  Yes. I will have that done immediately the

Court rises. Mr Justice Southwell refers to what

the trial judge did, asks the question:

Another juror said that the applicant had

taught him.

et cetera - excluded two from the panel.

The same process was repeated with the other half of the panel from which there was

no response. The applicant was then

arraigned. Short of cross-examination of each

member of the panel individually, no more

could then have been done to ensure an

unbiased jury.

His Honour in the next two paragraphs sets out

the consequences of that. The trial judge in his

charge did not refer to the peculiar circumstances

of this case at all, but the only place at which it

might be said he dealt with the issues was in a

passage at 1868:

Glennon(2) 54 12/2/92

A long time ago you will remember I told you

that because you are required to sit as judges

of the facts, you are required to behave as

judges are required to behave, that is to put

out of your mind prejudice, sympathy, gossip,

any emotive matter of that sort, and to simply

treat this exercise as an academic exercise.

That is easily said, but you will quite

properly by now realize that it is very easy

to become prejudiced against somebody simply

by reason of the nature of the accusations

made and or the number of the accusations

made. Some offences do have emotive

connotations and can therefore influence in an

emotive sort of way. Offences against

children fall into that category. You must

guard against that sort of prejudice.

TOOHEY J: But what about when the trial began,

Mr Bongiorno? It is customary for the trial judges

to give a warning before the evidence is led.

MR BONGIORNO: Yes, at - - -

McHUGH J:	Page 92, I think there is reference to customary warnings - last paragraph.
MR BONGIORNO:	Yes. At the bottom of page 120, having made

a finding that the trial was conducted fairly:

The jury as adequately warned that it was its

sworn duty to put aside prejudice and gossip.

This warning was given both before counsel's opening, and in the charge (I say nothing as

to the status of or as to the appropriateness

of the giving of such "preliminary

directions"). The verdicts of acquittal on a

number of counts tend to demonstrate that the jury approached its task properly and fairly.

It is His Honour's finding.

TOOHEY J:  You see, you might even need to know whether

there was anything said during the course of the

trial. It is just conceivable that there was a

direction or a warning given as the trial

proceeded, but how are we to know that except by

ploughing through the material?

MR BONGIORNO:  Your Honours, I can simply state, my learned

junior who was counsel in the trial said there was

not, but I will provide the transcript - - -

MASON CJ:  I think you will have to take personal

responsibility, Mr Bongiorno, I do not think it is

good enough for you to say your learned junior says

so and so.

Glennon(2) 55 12/2/92

MR BONGIORNO:	I appreciate that, Your Honour.
MASON CJ:	I think what you will have to do is provide the

Court with a complete transcript of the charge and

a transcript that covers every conceivable

happening at the trial that bears on its fairness,

particularly having regard to the matters that have

been raised with you from the bench.

MR BONGIORNO:  Would it be satisfactory to provide a whole

transcript with those references flagged,

Your Honour?

MASON CJ: Yes, and in particular covering any applications

that are made by counsel for the accused.

MR BONGIORNO:  Yes. I will ensure that the defence has a

copy of the flagged portions. In the judgment of

Mr Justice Nathan at page - - -

McHUGH J: Page 92 he refers to -

MR BONGIORNO:  Yes, at the bottom of page 92:

I am not satisfied that the customary

admonitions as to caution and prejudgment
delivered in exemplary form by Judge Neesham,

could have brought about a fair trial in the
face of the initial contaminant. Before

giving further reasons for holding, it is

worth observing -

et atera. And then, on the following page:

It can be said the trial was conducted

with scrupulous fairness and rulings delivered

in its course which are examples of accuracy

and precision. However, I am not here

deciding the issue of the fairness of the

trial process, but the fairness of conducting

the trial in the first place.

And then, finally, a reference in

Mr Justice McGarvie's judgment, in the third

paragraph on page 51:

The judge conducted this trial in the manner best calculated to have the charges

heard and decided by a jury which did not have
or acquire, and was not influenced by,

impermissible knowledge such as knowledge of

the prior conviction of the applicant.

And His Honour then goes on. So that those are the

matters before the Court, and I will undertake to

ensure that the Court is supplied with a full

Glennon(2) 56 12/2/92

transcript of the trial with appropriate passages

flagged as soon as that can be done.

Finally, Your Honours, I would just make one

further submission in relation to the matter raised

by Mr Justice Dawson, that in any event, having

regard to the conduct of the appeal in the Full Court, in effect being an appeal from

Mr Justice Crockett, that in so far as there was no

jurisdiction to conduct an appeal from

Mr Justice Crockett and there was in fact in form

no appeal from Mr Justice Crockett, that should
give rise to a grant of special leave on its own by

virtue of section 35A(b) in that the interests of

the administration of justice, even in the

particular case, require the intervention of this

Court, that error not being able to be corrected in

any other way.

GAUDRON J:  Is it essentially an error? I mean, let us

assume a different case, for example. Let us

assume an application for a stay of six months

which is rejected in the supreme court, assuming it

got there, and assume the trial then goes ahead.

The district court judge accepts exactly what has

been said, but there was something, some factor,

make it pre-trial publicity, could that not be

dealt with on appeal later?

MR BONGIORNO:  I am not sure of the timetable Your Honour is

putting. A Supreme Court judge hears an

application, grants a stay for six months - - -

GAUDRON J:  No, refuses it.

MR BONGIORNO: Refuses a stay?

GAUDRON J: Yes.

MR BONGIORNO:  And the trial then proceeds and it is later

discovered that something which occurred prior to

the supreme court - - -

GAUDRON J: It is later held that the pre-trial

publicity - let us put it the day before the

decision by the supreme court judge - was such that

there should have been a stay of six months.

Cannot that be dealt with in the Full Court?

MR BONGIORNO: At the point at which the supreme court first

hears the matter, there would be a finding by the

supreme court which would bind both the Crown and

the accused that there was no reason at that point

why a stay should be granted.

GAUDRON J: But is there not a decision to the effect that

notwithstanding that, questions can be agitated on

Glennon(2) 57 12/2/92

appeal following conviction going to the matters

that were raised in the earlier proceedings. Is

that not what Boehm is about?

DAWSON J: It is a question, is it not, whether you can

distinguish the previous decision? Putting

technicalities on one side, it is an odd

circumstance that where there is a decision of the

supreme court which, on any view, you cannot

distinguish, another supreme court just declines to

follow it, in the same case.

MR BONGIORNO: Declines to follow it, yes.

GAUDRON J: But higher in the line of authority?

DAWSON J: That is a question, is it not?

MR BONGIORNO:  Yes. The supreme court constituted by a

judge is still the supreme court under

section 10(1) of the Victorian Act. The

Full Court, in dealing with that issue, may well

not have been - if it is not sitting on appeal from

him, it may not have been higher in the line of

authority and I was unable in the luncheon
adjournment to research that matter any further

than simply to put the proposition that I have put. In light of His Honour's comment this morning, I do not think there is anything further that I could be

of assistance to the Court in relation to it. It

becomes very technical at that point and would

require much more research than I have been able to
do, since being awake to the point in the way in

which Mr Justice Dawson put it. Those are the

submissions on behalf of the Crown.

MASON CJ:  You will provide us with the transcripts

promptly.

MR BONGIORNO: That will be done immediately, Your Honour.

MASON CJ: Thank you. Yes, Mr Dane.
MR DANE:	If it please the Court, the submissions are that

there is no special leave point here. The

submission is that the Court of Criminal Appeal

decided the question of whether or not there was a

fair trial as a matter of fact. It concluded, as a

matter of fact, that there was not a fair trial and

that was based upon the fact that they could not be

satisfied that there was an impartial jury and

having concluded that from the surrounding

circumstances, they said that also, in their view,

one could not get an impartial jury because of the

extent of the pre-trial publicity brought about by

Hinch. They distinguished, as a matter of fact,

the pre-trial publicity that they recognized as

Glennon(2) 58 12/2/92

occurring in many other cases, be it of a notorious
class of case or of a well-known person or for all

the variety of reasons that have been drawn to the

Court's attention here this morning and said that

this was a special class of case, not previously

experienced, whereby a journalist had set out upon

a course of conduct which normal journalists do not

do.

McHUGH J: But could that have made any difference?

Supposing Hinch had made his broadcast on

11 November 1985 before the respondent was charged. The effect of the publicity must have been the same

in the sense of drawing attention to his previous

convictions and attacking his holding of the

position. Could you have had the verdict set aside

on that basis?

MR DANE:  Mr Justice Crockett said that even at that point,

there would be grounds for a stay, but it is only
because of the natural ebbing of memory and the

lack of retention that he came to the conclusion

that it had died a natural death, and therefore the

influence of Hinch had gone away, and therefore the

trial could proceed.

McHUGH J: No, but the point I am raising with you is has

it got anything to do with Hinch or any misconduct

on his part?

MR DANE:  Yes, we say that there is a nexus in this case

between Hinch and Glennon. We say that the nexus

is that Hinch set out intentionally, as he was

found to have done, criminally to adversely affect

Glennon, and that he, as the Court of Criminal

Appeal found by majority, polluted the particular

stream of justice that the Director of Public

Prosecutions asked Glennon to swim in.

McHUGH J: Yes, but what I am asking you is: supposing he

had made the attack the day before Glennon had been

charged; drew attention to the fact that he had

been found guilty of child molesting in the past.

Were there any grounds upon which the Court of

Criminal Appeal could have interfered on that

hypothetical - - -

MR DANE:  We say yes, because it does not matter where it

occurs, it is what facts can be taken into account

by a trial judge at first instance. It is the

timing.

McHUGH J:  Then how do you distinguish a case, like somebody

notorious like, say, Darcy Dugan who, in one sense, could never get a fair trial, at least in New South

Wales, because he was probably better known than

the Prime Minister.

Glennon(2) 59 12/2/92

MR DANE: That is the point that Mr Justice Southwell takes,

and that example is referred to throughout the

authorities. Notorious people have to be tried, if

there is a proper foundation for them to be brought

into the criminal process. It is not the

submission that we make that notorious people are

immuned from prosecution.

Mr Dugan would have to take his application

for a permanent stay based upon not his notoriety

and the fact that everybody knows that he has

committed offences in the past, but whether or not

the pre-trial publicity had gone to an extent of

negligently reporting his pre-existing situation or

inadvertently or whatever it was. He would not,

unless he fell in to the Glennon class of case, be

able to point to a criminal process directed at

him, Dugan, in that case.

The contempt in this case was directed a~ the

man who had to stand trial. Here,
Mr Justice Crockett and Judge Neesham have said to

Glennon, "Yeah, well, it was polluted, the stream, but have a go anyway".

McHUGH J: It does not seem a very satisfactory distinction

in principle to say, "Well, you set aside one
conviction but you don't set aside the other, and
the difference between the two cases is the state

of mind or the conduct of the person who has caused

the harm".

MR DANE:  Yes, and that is where it is a matter for the

trial judge and, if he errs and it can be

demonstrated that he has erred, it is the Court of

Criminal Appeal, to decide as a matter for themselves as to whether or not those facts are

sufficient in this case, whatever the case happens

to be, and it is on a case-by-case basis.

Here you actually have got extraordinary

behaviour by a journalist and the timing of the

extraordinary activities by Hinch is irrelevant if

it is thought, as a matter of assessing the facts,

that that will adversely affect the trial, and in
this case two judges have said, "In our opinion,

that is enough".

McHUGH J: But the accused was acquitted of 12 out of the 17

charges. I mean, the objective evidence points very strongly to the fact that the jury was not

influenced, does it not?

MR DANE:  It has even conceded, yes. One reading that would

be attracted to the proposition that Your Honour

puts, namely that they must have been impartial

because, having decided that he was guilty on one

Glennon(2) 60 12/2/92

offence they returned to reconsider a subsequent
count and returned not guilty. It has been

conceded throughout, and it is recognized in the

judgments - it was conceded at the Court of

Criminal Appeal in argument that those acquittals

are explicable by the dearth of evidence.	They are
more than adequately explicable.	And it is

conceded that it does not follow as night follows

day that merely because they acquitted at a

subsequent time after a conviction that it

demonstrated an impartiality upon them.

McHUGH J: But the converse is true then, that they

convicted him on the cases where the evidence was

strong.

MR DANE:  We do not argue on this point, which of course is

only one of the points that was raised before the

Court of Criminal Appeal.	On this point we do not
say that it is a question of merit.	It is not
argued that he has a meritorious acquittal.	We say

that the way in which the acquittal has been
achieved in this case is for the preservation of

the administration of justice so that there cannot

be said to be a conviction where there has been a

partial jury take place. So the acquittal here

does not reflect upon the merit of the case at all,

vis-a-vis Glennon, he just happens to be the

fortunate recipient of that order where the

administration of justice is preserved by the

acquittal that is imposed. It also enables this

application to be made, that is the acquittal. The

Director has then got a jurisdiction to come along here, but it amounts to no more than the

prosecuting authorities are denied the right to a

conviction. We say, therefore, it is not a

question of consideration of merit; thus we say it is not a point with which we need concern ourselves

that Your Honour raises.

We say that the Court of Criminal Appeal was

satisfied that it had a sufficient jurisdiction to

come to the conclusion that it may terminate this

conviction, if they are satisfied under the terms
of 568 of the Crimes Act there has been a
miscarriage of justice. That was a matter of

assessment of fact, which they did in this case.

They said we have got the jurisdiction to do it, we

find as a matter of fact that the circumstances of

this case, the extraordinary circumstances of this

case

DAWSON J:  How can they do that, Mr Dane? In essence what

they are saying is that the trial judge, when the

application was made to him, exercised his

discretion wrongly to allow the trial to proceed.

Glennon(2) 61 12/2/92

MR DANE:  Yes, Your Honour.

DAWSON J: Nothing happened during the trial, so that was

the point, if any error was made, that the error

was made.

MR DANE:  On this point it is pre-trial.

DAWSON J: Yes, and the trial judge exercised his discretion

in accordance with the decision of

Mr Justice Crockett and nothing has been shown

which, in any way, throws any doubt on that

decision in the sense that there is something new

or something different which arises. How can you

say there is a mistake in the conduct of the trial?

MR DANE:  We say, with respect, that Mr Justice Crockett did

err. He erred in the exercise of his discretion by

failing to take into account the chance that a

juror had been affected by the pre-trial conduct of

Hinch and the associated media coverage. In other

words, Mr Justice Crockett failed to take into

account adequately the impact of Hinch's pollution

of the criminal process and that when that argument

was advanced it was accepted. I say the - - -

DAWSON J:  What demonstrates that he failed to take that

into account adequately? All the facts would point

the opposite way. How is it then, if what you are

putting is correct, that the jury managed to

distinguish, as I understand it, those charges on

which the evidence was weaker and those on which

the evidence was stronger?

MR DANE: Well, we would say that the cases where they were

weak they were extraordinarily weak in as much as

there were - one case where a verdict of not guilty

was returned, wherein there were many counts

involved, was where there was a schizophrenic who

described the relevant events of taking place in a
building that just did not exist.	In other words,

it could be seen patently that there was no
foundation to the allegation at all. It was a

figment of his imagination.

DAWSON J: But it nevertheless demonstrates that the jury

was proceeding not upon prejudice, but on proof.

MR DANE: This, with respect, is not a matter of testing by

what the jury did, it is a matter of testing at a

time before empanelment. Could, as a matter of

Mr Justice Crockett and, as it turned out, the

members of the Court of Criminal Appeal, it be said

that you would, as a result of the materials that

have been washed across Victoria by Hinch, have got

an impartial jury? It is not a matter of saying, "How did the jury go?'', and seeing, "They did all

Glennon(2) 62 12/2/92

right, so it looks like it has been a pretty good

trial and so that is - - -"

DAWSON J:  I do not want to labour the point. "It could be

said" - it was said by the supreme court.

MR DANE:  Mr Justice Crockett?

DAWSON J: Yes.

MR DANE:  He came to the conclusion that it would be all

right to have a swim in that pool, and that you

would get a jury because it would have died a

natural death. Two other members of the court said

that you would not. But, with respect, it is not

tested by whether or not that jury, the one ended

up with, got it right or got it wrong. It is a

test that applies before as to, "Will there be an

unfair trial?"

DAWSON J: It amounts to this, that they came to the

conclusion that there was an unfair trial which
proceeded in accordance with the decision of the
same court, notwithstanding nothing in the trial or

prior to the trial appeared to indicate that the

decision was wrong, other than a different opinion.

MR DANE:  Yes, and all, with respect, of the majority

members have said is that, "We are of the view that

His Honour erred in not placing sufficient weight

upon these particular facts, and we come to a

different conclusion."

TOOHEY J:  Mr Dane, when you put your argument that way, are

you suggesting that it is not relevant for any

purpose to consider the manner in which the trial

was conducted? Because you appear to be putting

your argument as if we were considering an appeal

from a refusal of a stay, whereas we are looking at

a decision of the Court of Criminal Appeal setting

aside a conviction.

MR DANE:  The argument, about which the Court of Criminal

Appeal devoted its judgment, was as to whether or

not there should have been a different exercise of the discretion by the trial judge, and then it was mixed and/or Mr Justice Crockett, but the ground of

appeal was directed at whether or not His Honour

Judge Neesham failed to exercise his discretion.

Alternatively, that the exercise of his discretion

was the same discretion as was exercised by

Mr Justice Crockett and, therefore, it was all pre-

trial.

TOOHEY J: But is that the basis upon which you are asking

us to approach the matter, that it is not relevant

Glennon(2) 63 12/2/92

to consider anything that occurred either at the

time the trial began or during the time it took

place?

MR DANE:  Yes, well we say that what occurred after an

empanelment does not assist this argument one way

or the other.

TOOHEY J:  I am not sure what you mean by that. Do you say

it is relevant or irrelevant?

MR DANE:  I only hesitate because there might be some point

that is relevant. My intention is to answer it by

saying it is irrelevant because the arguments

made - the Crown, together with the accused as he

then was, asked for His Honour Judge Neesham to

exercise his own discretion. He made a short

ruling about that and he said that his discretion

was bound, on a simple matter of jurisprudence, to

follow the decision of Mr Justice Crockett.

And so, all the argument at the moment is

directed at whether or not you would get a fair

trial in the circumstances, and so the conclusion

was that without looking at what happened in the

trial, Their Honours in the Court of Criminal

Appeal said, "You would not get the risk of one

juror being prejudiced", could not be eliminated

and, therefore, whatever occurred in that trial, be

it an acquittal or not, is not a satisfactory trial

for the administration of justice in Victoria

because ~n prospect we say you could not have got

one.

BRENNAN J: There are two things about that: first is you

say the risk of a juror being affected. Is that

what you propound as a relevant test for a fair

trial, the ability to eliminate that risk?

MR DANE:

We agree that one can only get a trial as fair as

possible and there are many examples of trials

having taken place and the very administration of

the trial and the very mode of prosecution

et cetera and examples of evidence that have been

given here towards the conclusion of this morning's
hearing whereby a jury would know of a prior

conviction at a relevant time.

BRENNAN J: Well, is your answer no? That is not the

criterion you are contending for?

MR DANE:  No. However, what we do say is that the object

must be, leaving aside the questions of tactics of

the way in which one would conduct a case, as in
the case of Coman, which is referred to in the

applicant's list of authorities, (1953) VR, then it should be the objective to get an impartial jury as

Glennon(2) 64 12/2/92

best as one can. Now, one cannot start out with

the proposition that getting the best jury possible

includes we will have to endure, when the

probability is so high that there is going to be a

knowledge of prior convictions in a sexual case,

that level of partiality in the criminal judicial

process.

BRENNAN J:	What is it, in your submission, which should lead a court to grant a permanent stay, when there
is an apprehension of possible prejudice induced by
pre-trial publicity? What level of concern has to
be reached before that order is made?

MR DANE: Irrespective of the appellation, it has got to be

extraordinary, it has got to be extreme, and we say

that by way of the criminal contempt that occurred

here that has a clear nexus to this case, that it

was reached in this case. Two supreme court judges

sitting in the Court of Criminal Appeal have said

so. We agree with that and we say that - - -

BRENNAN J:  What is it that has to be extreme?

MR DANE: There has to be an extraordinary circumstance,

that is, out of the ordinary. Here, it was an out

of the ordinary piece of journalism, albeit

extrajudicial, and not necessarily within the

framework of a trial that a court normally has to
grapple with, but the classes of unfairness are not
closed. Where each piece of unfairness is drawn to

the attention of the trial judge, it is up to the

trial judge to assess.

If it amounts to only notorious or salacious,

then it probably does not come within it, but here
there was an extraordinary set of circumstances

which grew out of a piece of broadcast material

that blew up into something quite extraordinary,

where it became an issue within the State, that is,

one had politicians on the front page of the Herald

saying that, "Derryn Hinch shouldn't go to prison

because he's a nice man".

So there is the television spectre of

Derryn Hinch being taken off to court and his wife

crying, and this was adequately set out in

Mr Justice Nathan's judgment as to the spectre that

was developed within the community.

BRENNAN J:  Mr Dane, what is the head under which the Court

of Criminal Appeal, or the Full Court, had

jurisdiction to allow this appeal?

MR DANE: Section 568, Your Honour.

Glennon(2) 65 12/2/92

BRENNAN J:  Now, I take it it is on the ground of general miscarriage of justice.

MR DANE: Miscarriage of justice, yes.

BRENNAN J: That there was a miscarriage of justice?

MR DANE:	Yes.
BRENNAN J:	How are you able to demonstrate that?
MR DANE:	It was the verdicts were unsafe and unsatisfactory

because they were returned by a jury that was

adversely affected by pre-trial publicity to the

extent that the court would not be satisfied that

it was an impartial verdict.

BRENNAN J:  You mean, the court not being satisfied that

there was no miscarriage should find that there

was?

MR DANE:  I missed Your Honour's - this Court, did

Your Honour say?

BRENNAN J:  No, you say that the court, if it is not

satisfied that there was no miscarriage of justice,

should find that there was a miscarriage of

justice?

MR DANE:	I am sorry, Your Honour?
BRENNAN J:	I thought you said the court could not be

satisfied that the jury was uncontaminated?

MR DANE:	Yes.
BRENNAN J:	The jury may have been contaminated or it may

not have been contaminated.

MR DANE:	would have to be but, leaving that proposition to We presented statistics that indicated that it	one side, the court was sufficiently uneasy about
the prospect - to come to the conclusion that prospectively it was a contaminated jury, yes.

BRENNAN J: Well then, before the court can come to the

conclusion that there w~s a miscarriage of justice,

which is the statutory ,ndition on its

jurisdiction, you say is sufficient for the

court to be satisfied tnat there may have been a

miscarriage of justice because the jury may have

been contaminated.

MR DANE:  Yes. We have to say that because, in the absence

of examining jurors prior to empanelment, one never

knows.

Glennon(2) 66 12/2/92

McHUGH J:  I thought you put your case differently in the

Full Court, that your case was that there was a

miscarriage of justice because the accused was

tried when there was a risk of prejudice against

him? That is the way Justice McGarvie seemed to

apprehend it.

MR DANE:  The risk of prejudice - it may be that we are at

cross-purposes - being that the jury was

prejudiced.

McHUGH J: At page 54, Mr Justice McGarvie said:

Both before Crockett, J and before this

Court, reliance was placed mainly upon the

risk of prejudice from the broadcasts as the

factor bringing about the miscarriage of

justice contended to have rendered the

verdicts unsafe and unsatisfactory.

That seems a more attractive way of putting your

case than the way you were putting it a few minutes

ago.

MR DANE:  I am just referring to the way in which my notes

indicated I had presented the case. Just reading

from that, the learned trial judge.erred in the

exercise of his discretion by failing to consider

for himself whether or not the applicant would be

tried unfairly, and so it was a much broader

submission from which the learned judge has

expressed it more adequately on behalf of the

respondent.

Hoping not to leave Your Honour

Mr Justice Brennan, we say that there has to be the

flexibility for a trial judge and/or Court of

Criminal Appeal to be able to say, "In this case we

are not content to allow the verdicts to stand." as

being sufficient, if it is attended with sufficient

difficulty, for the verdicts not to stand.

DAWSON J:  What is the basis for saying that those jurors

who fail to indicate their familiarity with the

case did so - that those jurors who failed to

respond to the judge's invitation did so

dishonestly. What justification is there in saying

that the jurors, given the instructions as they

were, disregarded those instructions?

MR DANE:  This is why I am not particularly attracted to

saying "this jury" and that we thereby examine

"this jury" as to whether or not it was impartial

or not.

DAWSON J: If you cannot say that, you cannot say that there

was not a fair trial.

Glennon(2) 67 12/2/92

MR DANE: Well, we say that as a matter of prospect, any

jury - and in fact the Full Court has gone ahead

and said it is so bad that another jury cannot be

got.

DAWSON J: That involves saying that these jurors

disregarded the instructions of the trial judge.

MR DANE: With respect, many courts of appeal deal with that

proposition.

DAWSON J: 

I thought that unless there was something to

indicate that they had, the cardinal principle was
that you must assume that they followed the
directions of the trial judge.

MR DANE: 

If we can draw Your Honour's attention to cases

such as Sutton and De Jesus, in separate trial

applications, where the separate trial has been

declined by the trial judge and verdicts of guilty

have been returned. There was an appeal and the
Court of Criminal Appeal has said there should have

been a separate trial. It is, in effect, saying that the jury has ignored the direction to treat

each case separately because it is readily conceded

that the subtleties which are recognized by judges,

but not necessarily lay juries, the subtleties of

having to, as in De Jesus -

McHUGH J: In those cases there is a breach of the law, is

there not, because you can only try all the charges

together if they arise out of the same series of

case? So it is not quite in point, is it?

DAWSON J:  And furthermore, it is not quite the same because

the jurors who sat, in effect, denied any

familiarity with the case.

MR DANE: Well, yes, Your Honour, but the point being there

is that that - we say it is a matter of prospect,

it is -

DAWSON J: Well, is the Appeal Court entitled to assume that

in so doing they were acting dishonestly?

MR DANE: With respect, the Court of Criminal Appeal did not

direct their consideration to -

DAWSON J: They should have, should they not?

MR DANE:  As to this point, we say, no: it is as to whether

or not as a matter of fairness you would get an

impartial jury.

DAWSON J: But if the jury has no familiarity with the - I

am not using the exact words of the judge, whatever

Glennon(2) 68 12/2/92

they were - matter and cannot recall it, it has a

bearing on it, does it not?

MR DANE: That is saying that the jury will take the

benefit - the preservation of this jury's decision

will have the benefit of not being the subject of

examination and not being the subject of scrutiny

that was applied to it, namely as a prospective

jury somebody would know about it.

DAWSON J:  I am just saying in those circumstances that the

Full Court is not justified in coming to the conclusion that it was inevitable that the jury

showed bias.

MR DANE:  Yes. Well, we are clearly at odds with

Your Honour because we say that it is not a

question of examining in hindsight, it is a

question of examining prospectively.

BRENNAN J: Prospectively. Well, I understand that, but how

do you reconcile that with the passage that was

read this morning from the judgment of the

Chief Justice and Mr Justice Toohey in Murphy's

case, 167 CLR at 101, where Their Honours said:

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.

And Their Honours then go on. How do you let that

stand with the submission you are making?

MR DANE:  My answer joins with that which we have already

put to Your Honour in a previous question, only

that the circumstance in this case was so great and

so extraordinary in itself, that in the pre-trial

publicity relevant to Murphy was proper, free press

expression, whereas here it is a different thing

again. This was a man using his licence as a

journalist for what turned out to be a criminal

purpose, and so that is so extraordinary as to be

able to meet the proposition that was anticipated

by the judgment that Your Honour has just referred

to. That is, we are here dealing with an

extraordinary matter.

Glennon was not a notorious person. Glennon

is not an extraordinary thing. It is known - this

problem of members of the church having failed and
being brought to justice, I mean, that is not an

unusual thing for the law, and Glennon does not

stand aside and is not a significant character.

But Glennon has been made notorious. Hinch and he

have covered the newspapers and has produced an

extraordinary circumstance. We are not suggesting

Glennon(2) 69 12/2/92

that, as a matter of general principle, any

pre-trial publicity will necessarily pollute the
stream of justice to the point where there has goL

to be a permanent stay, that is not the argument at

all. We say, we just happen to have an

extraordinary case here that fulfills the

qualifications of rare indeed and, with respect, it

is rare indeed. It is an ordinary case where a

journalist has gone on to a crusade which as this

Court and the court below have described as something that will put at risk Glennon's trial, so

there is the nexus to the point that I have already

made.

So we are arguing the matter that was raised

before lunch by Mr Justice Deane to our learned

friend, where I think it is at page 94 in the

judgment of Mr Justice ~'~chan, that it amounts to

an extraordinary process chrough which this man was

put; it is bordering on the bizarre. And so it is

not just in the ordinary run of the case; it is an extraordinary case and we say, as a matter of fact, the extraordinary aspect of it has been recognized

and they have said, this is one. If it is not one,

then pre-trial publicity, whether it be criminal or

negligent or whatever, will ever amount to an
inhibition upon the process, and that was also a

matter referred to by Mr Justice Nathan.

McHUGH J: Well that does not follow. I mean, if this trial

had taken place in 1988, you might have an

overpowering case then; but it took place in 1991.

MR DANE:  Your ~onour's comment is echoing the observation

of Mr Justice Crockett; he said that it was worthy
of a delay at that stage.

Having made the decision that the ground of unsafe and unsatisfactory verdicts had been made

out - and this is where the precision of the

judgments do not assist the respondent - ground 9

of the appeal was that the verdicts were unsafe and

unsatisfactory. That was interpreted by the

members of the court as enabling a combination of

ground 1, which is the ground about which we are directing most of our argument now. That having been made out, rendered the ground 9 as having been

made out; it was unsafe and unsatisfactory. Ergo,

the jurisdiction under 568 made out there was a

miscarriage of justice and then the matter resolves

itself down as to the ancillary orders that will

follow. There was a quashing of the verdict and it

was then the decision as to what to do at that

stage.

The strength of the pre-trial publicity, for

want of a better phrase to cover all that went

Glennon(2) 70 12/2/92

before which makes up the subject of the argument, was regarded as being sufficiently serious to say,

"Well, in the future, we do not think there is

going to be a jury that is unaffected by all this

that has gone, and accordingly we will give an

acquittal." But we say that that is just an
ancillary order to the order that the verdicts be

quashed on the ground that they are unsafe and

unsatisfactory.

Now, it is perhaps the lack of precision of

linking the acquittal with the ground that the

judge failed to exercise his discretion to
permanently stay, so that is the point. There is a
blurring of grounds and reasons, but the court has

come to a conclusion, but the conclusions are all

based upon fact and, accordingly, special leave is

not made out.

The other matter that was raised was a

question of immunity, and we say that is an

inappropriate term in this case. It is suggested

that Glennon has an immunity, granted. Now, we say

that that is wrong. All that has happened is that

there has been a cessation of the process in this

particular case.

McHUGH J: Supposing he went out and committed an offence

today. Could he be tried on that?

MR DANE:  Yes.

McHUGH J: Well, what is the difference between ordering a

new trial in the facts of this case and the

hypothetical?

MR DANE:  When the matter comes on for hearing for the

subsequent offence, an application would have to be made, if it was thought desirable to be made, for a

stay, the argument being that he has received so

much publicity about himself that he is now	notorious. This is the man who has got the
cessation of the previous proceedings, but we say
that that would not carry any weight at all with a
subsequent trial judge because the trial judge will
say, "Well, what's been said about this case?", and
unless there had been something amounting to a
criminal behaviour by a journalist linking all that
which has gone before into this particular charge which would provide the material upon which to make
the application, then the application would just
founder.

DAWSON J:  I thought the complaint was not what is said

about this case but what is said about this man's

prior convictions.

Glennon(2) 71 12/2/92

MR DANE:  Yes, but that has not been raised in vis-a-vis the

new offence.

McHUGH J: But the effect is the same, surely. It is not

because Hinch commented on the trial. It is

because he referred to this man's previous

convictions.

MR DANE:  Yes. Well, that is not an immunity. Immunity

goes to the inhibition upon the prosecuting

authority. All that he can do is that if he is

re-presented now on the charges that were the
subject of this process, he would be able to plea

in bar autrefois, but he does not have that plea in

relation to anything else. He has to the~ ~ake his

application and see whether the strength c_ the

case in support of his application is sufficient.

McHUGH J:  Were all these charges, upon which he was

convicted, filed against him before the last of the

Hinch broadcasts?

MR DANE:  I was not in the trial; I will just check that.

It may well be that some were subsequent.

McHUGH J: That is what I thought. That cuts the ground

from under your feet, does it not?

MR DANE: If I could follow Your Honour, I would be able to

answer Your Honour.

McHUGH J: What I am saying is that if Hinch has had to

interfere with this trial, then you c~nnot have any

complaint about charges that were laid after ~he

broadcast.

MR DANE:  It took on a life of its own. When I say "it",

the original broadcast was the conception of it,

but it grew into a public issue. So it is not just

what Hinch has said about Glennon. That has been

retained and maintained through the life of Hinch's

difficulties and the way in which he travelled

through the courts of Victoria and here and

eventually down to prison.	So it has been
maintained all along.

McHUGH J: But Hinch has not polluted the stream of justice

in relation to certain of the charges.

MR DANE: With respect, we say yes, because each time there

was a publication in relation to Hinch, the

explanation of Hinch's predicam~ ~ was repleaded

whereby all he was doing is just 3aying that this

terrible man is still out taking care of children

and so the predicament of Hinch took on the clothes

of Glennon.	So the mention of one was the
enlivenment of the other and so each developed.	So

Glennon(2) 72 12/2/92

by the time Hinch had been - his process had been

completed, the Glennon problem had followed him all

the way. Hinch ends up telling everybody what it

was like down in prison. I mean, it was all

followed through day-by-day. There were television

cameras at the prison, following his wife down for

the visit, et cetera.	I mean - well, these are
matters of evidence.

BRENNAN J:	I suppose there was publicity then following the conviction of Father Glennon.
MR DANE:	Yes.
BRENNAN J:	And then more publicity attendant upon the Court

of Criminal Appeal quashing the conviction.

MR DANE: Yes.

BRENNAN J:	And I assume there may be publicity, if your argument is right, upon this Court, if it were to
refuse special leave or refuse special leave and
dismiss the appeal?
MR DANE:	Yes.

BRENNAN J: Would that mean that if Father Glennon was

charged tomorrow with another offence against a

young person it would be impossible to get a jury?

MR DANE:	We say that as a matter of propriety it would be appropriate that there be some adjournment simply because of the publication of this case.
BRENNAN J:	Why only some adjournment as against a permanent

stay?

MR DANE:  We would not be able to mount a permanent stay

argument at that stage because we would not be able

to say that the journalism attendant upon the

matters that Your Honour has just enumerated, that

is post-trial, post-appeal and post-High Court, was

anything other than the appropriate reporting, and

so it does not fall into the extraordinary class

into which Hinch fell, namely reporting of a

criminal nature.

BRENNAN J:  It comes back then to what Justice McHugh first

put to you: it is the state of mind or the

deliberation with which the polluting material is

disseminated which makes the difference.

MR DANE:  Yes, and we say that in this extraordinary

circumstance there is a set of facts that are
presented to a trial judge and he has to grapple

with them and we say that it is appropriate that he

does grapple with them, because it is of no moment

Glennon(2) 73 12/2/92

to ignore them, and we say that he has in effect

ignored them, he has treated this jury in no

different way to any other jury that would have

been called and empanelled, when in fact he should

have exercised his discretion because he had this

enormous problem on his hands and the Court of

Criminal Appeal has rectified that error.

TOOHEY J:  Mr Dane, is that really your argument, that the

risk of prejudice to the accused is to be assessed
by reference to the mind of the person who

publishes or disseminates the information?

MR DANE:  No, it is the potential that it will do to getting

an impartial jury.

TOOHEY J: Well, I rather thought in answer to what

Justice Brennan put to you a moment ago, that you

are accepting that the mind of the disseminator or

publisher was in some way a criterion of the

fairness or otherwise of the trial that the accused

might receive.

MR DANE:  No. Perhaps I should say it again so that that is

not misunderstood. We do not say that there should

be no pre-trial publicity. In fact, the principles

of journalism more than adequately provide for the proper reporting of pre-trial matters. It is only

when there has been what has been determined to be

a criminal content that that fact, not examining
the criminal mind of the publisher, the journalist,

but the objective fact that one has got something

so extraordinary as a criminal activity, that that

fact is to be taken into account by the trial judge in assessing as to whether or not there is going to

be an impartial jury.

TOOHEY J: Yes, I understand that.

DAWSON J:  Mr Dane, do I understand you to put your case on

the basis that there was a miscarriage of justice	in this case; not a case of abuse of process, but
that there was a miscarriage?

MR DANE:  We say that there was a miscarriage, yes, because

this - - -

DAWSON J: Because this jury was so likely - - -

MR DANE: Prospectively, yes, which we have all just said,

yes. The likelihood of having an impartial jury could not be - one could not be content that there

was an impartial jury.

DAWSON J:	So it is not a question of the verdict being unreasonable, or not being able to be supported on
the evidence, or anything like that; it is just
Glennon(2)	12/2/92

that there was in this trial a miscarriage of

justice.

MR DANE:  Yes, Your Honour, prospectively, because -

DAWSON J: Well, no, "actually", you must be saying.

MR DANE:  Yes. Well, we say for a whole variety of other

reasons

DAWSON J: Section 568 does not talk of prospective

miscarriage -

MR DANE:  No, no.

DAWSON J: - - - of justice, it talks of miscarriages of

justice. So you must say there was a miscarriage

of justice in this case.

MR DANE: Well, the ground of unsafe and unsatisfactory

verdicts -

DAWSON J: Well that does not appear in 568. That is taken

out of the available grounds that are there, and I

have mentioned the relevant ones.

MR DANE:  Yes, and from that the court concluded that there

was a miscarriage of justice - - -

DAWSON J: In this case.

MR DANE:  Yes, in this case, yes, and so we necessarily say

that there was a miscarriage of justice in this

case. It was not we who linked the grounds of

appeal, we argued them seriatim.

DAWSON J: That reflects somewhat badly on the jury in this

case, does it not?

MR DANE:  Yes, because it is said, and it follows from the

argument that was presented, that the jury could

not have got it right - any jury could not have got

it right, and the court has actually said a future

jury will not get it right.

TOOHEY J: That is not the way it was put, was it?

Justice McGarvie put it on the basis that there was a substantial risk that the jury knew of the

applicant's earlier conviction and sentence and

were prejudiced against him as a result, and "It

followed," said His Honour, "that the verdict was

unsafe and unsatisfactory". But I do not think

His Honour was concerned to enquire into the actual

state of mind of any of the members of the jury,

but he put the risk so high that he felt that any

conviction was necessarily unsafe and

unsatisfactory. I am not suggesting that is right,

Glennon(2) 75 12/2/92

but it is of some importance, I think, to see the

way in which it was put.

MR DANE:  Yes, we do adopt that as the way in which

Mr Justice McGarvie has come to the conclusion.

DAWSON J:  What I am pointing out to you is that the words

"unsafe and unsatisfactory" are not words which

appear in the only available section, section 568;

they are a convenient formula but, ultimately, one

has to go back to the section and that means that,

in order to uphold the appeal, it must be found

that on any ground there was a miscarriage of

justice, not that there might be or that there was

a risk of it, but there was.

MR DANE:  Yes. Now, it is submitted that the procedure to

get to that point followed by Mr Justice McGarvie

and Mr Justice Nathan was, simply, that they said,

"Prospectively you will not get an impartial jury".

This jury could not have been, because of that

which we have said, an impartial jury; thus the

verdicts it produces are unsafe and unsatisfactory,

and we say for the reason that they are unsafe and

unsatisfactory that is a miscarriage of justice.

DAWSON J: What I am saying to you is that that is

tantamount to saying that they upheld the appeal

because there was a risk of a miscarriage of

justice, or a risk of a wrong verdict, or a risk of

a prejudiced verdict.

McHUGH J: They said there was an unacceptable risk. What

Mr Justice McGarvie said is that if there is an

unacceptable risk that a trial has miscarried then

the conviction will be set aside on the ground that

it is unsafe and unsatisfactory, and an

unacceptable risk is a risk which is significant or

substantial. Now, that may be right or wrong but

that is the way he looked at it.

MR DANE:  Yes. The only way in which we can deal with that

is that we:  (a) accept it; we are here to support

it, and we say that that is, in fact, calculated.

The conclusion is founded upon an assessment of the facts and the risks here have been produced by an

extraordinary set of circumstances.

DAWSON J: What I am putting to you is, you may be able to

assess the risk and so govern the way, by
appropriate applications and appropriate orders,

the trial is to be conducted, but once you have a

trial, the inquiry is whether the jury brought in a verdict which constituted a miscarriage of justice.

MR DANE: Yes, well, we say that it follows that if a court

is satisfied that the problem is produced by an

Glennon(2) 76 12/2/92

impartial jury, then it begs the question as to whether or not there was a fair trial. I mean,

nobody would argue if, in fact, there was

objectively demonstrated, and not that we can

demonstrate it here because the argument might go

the other way, but if there was a partial jury then

nobody would argue that it was unfair.

DAWSON J:  So that the conclusion is reached upon

speculation as to the way in which the jury may

have reached its verdict.

MR DANE:  We do not advance the argument on the basis of the

examination of the way in which the jury came to

its verdict. We say that the jury was selected

from a panel which necessarily must have produced

somebody in that panel who would have known about

the man's prior convictions.

DAWSON J: Notwithstanding, that implicitly those who were

selected denied that.

MR DANE:  By silence.

DAWSON J: Yes. The judge's instruction was clear enough,

was it not?

MR DANE:	Yes.
DAWSON J:	He asked whether they either knew or had heard anything about the circumstances of the case.
MR DANE:	Yes, and we say that many a Court of Appeal will

see its way clear of not being bound by a verdict

given by a jury if it can be demonstrated that

there is a difficulty about the jury itself or they

have received information that they should not, be

it of a legal or a factual matter, or they are

trying a trial that should be separated. So,

whether it is a problem about hearsay evidence,

whether it is a problem about similar fact

evidence, whether it is a problem about separate

trials, whether it is -

DAWSON J: That is all something that happens in the course

of the trial, that the trial can be characterized

for that reason a mistrial.

MR DANE:  Yes, but if a court has come to the conclusion

that there was not an impartial jury there, the

court could not, with respect, logically go on and

say that, given a prejudiced jury, a direction to

that prejudiced jury will be able to cure it and so

once a court has come to the conclusion that there

is a prejudiced jury there, no matter what manipulation one uses and how strong one's

direction is formulated, you are talking to

Glennon(2) 77 12/2/92

something that should not be part of the criminal

process. That is recognized on a daily basis,

namely if, for example, during the process of a

trial somebody's prior convictions are disclosed to

the jury in circumstances that are impermissible -

and there are plenty where it is not

impermissible - it is in the discretion of the

judge to see whether or not he discharges the jury

or he can grapple with it with an appropriate

direction. Time out of number he says, "My

capacity to deal with this prejudice to this jury,

I am not capable of doing it; I will deal with it

with a different remedy; I will discharge the

jury." And so all that has happened is that the

Full Court is saying that you should not have

empanelled and the law recognizes that there are

circumstances that cannot be dealt with by

direction - the example I have just given - and it

is dealt with by discharge.

The final submission is that the majority of

the Court of Criminal Appeal found that there was a

defect of unfairness that went to the root of the

trial and it could not be remedied in any other way

than the orders that they made and, in our

submission, it was just a finding of fact, the

assessment of the length of the string. They have

got a right to assess the length of the string and they said it was long enough in this case. Unless

the Court would be assisted by any other matters,

that - - -

GAUDRON J:  Mr Dane, what are the other grounds of appeal

that are outstanding?

MR DANE:  The other grounds of appeal that are outstanding

are, first of all, it is said that there was a

direction that conflicted with this Court's

decision in Maiden and Petty. There is

outstanding a construction by the learned trial

judge of the offence of buggery with violence as to

whether that was properly put to the jury.

GAUDRON J: They are grounds of substance, are they?

MR DANE:  There is a ground where it is said that there

should have been a corroboration warning - - -

GAUDRON J: What I want to ask you is this: Is there

anything you wish to say about a Crown appeal being

dealt with in circumstances where the inevitable

result is that the other grounds of appeal must be

dealt with?

MR DANE:  I am grateful for the invitation because we do.

We say that the appeal of the Crown here is an

appeal in futility because we say that the grounds

Glennon(2) 78 12/2/92

will be successfully achieved, at least, a

re-trial. Those matters would produce a re-trial

if they were successfully argued in the Court of

Criminal Appeal below.

GAUDRON J: Is that all they would produce?

MR DANE:  Yes, they are not a quash. But then, one has the

situation that was recognized before

Mr Justic Crockett that pre-trial publicity may not

of itself be so significant. However, when the

length of the stay that one would have to grant in

order to allow the time to pass for the matters to

fade from the minds of the potential jurors, you

have a super additive of a delay. So here, if the

matter were sent back for re-trial by reason of the post-conviction and the post-acquittal publication,

there would be an application for a stay and the

stay itself would then produce the delay whereby

there is a patent unfairness that can be

demonstrated, albeit in the face of two supreme

court judges having come to a conclusion that it

was so unfair that it would be ultimately a trial,

where in the history of the matter there would be these two judgments that would stand saying there

was an unfairness in the very first trial.

So what we say is that it is a matter of

futility that if the argument was presented to the

Court of Criminal Appeal, as is requested here by

the orders on the draft appeal notice, then we go

back; we are successful there, we go on; the game

begins with an application for stay.

MASON CJ:  Mr Dane, I do not know whether you have completed

the list of outstanding grounds of appeal, but if

you did not complete it, perhaps you could hand in

a statement of the outstanding grounds of appeal so

that we have a complete list of those grounds

before us.

MR DANE:  Thank you, Your Honour, if I can avail myself of

that. We gain strength, as was indicated in the

answering document in this appeal, by the fact that

the Crown retreated on three occasions to the

proviso, having recognized that there were errors.

That was the subject of a comment this morning, but

it was argued yes, there may well be an error, but

the proviso argument continued.

So there is a minefield as to whether or not

the proviso would be correctly applied, which may

then bring us back here, which is another matter.

But what we say is that the learned director is now

asking for this Court to review the matter to see

whether or not they can get another decision on the

facts.

Glennon(2) 79 12/2/92

We say that this Court may well be attracted

by the invitation, but we say the Court, according

to the principles of course, would resist that

invitation, because it is only just another factual

review and a factual review on a Crown appeal would

be inappropriate. So we say that it would be

futile to allow this appeal, as well as saying that

the grounds for special leave have not been made

out.

MASON CJ: Thank you, Mr Dane. Mr Bongiorno?

MR BONGIORNO:  If the Court pleases. To take the last

matter first, on the question of utility the Crown

does not concede that the determination of this

appeal in its favour would prcduce a situation

in utility. For a start, Mr :~stice Southwell

appears to have dealt with the other grounds,
although he was in dissent on this issue. At the

bottom of page 121, he says:

Having regard to the view of the other

members of the court that the conviction
should be quashed and the applicant
discharged, it becomes unnecessary to consider

the remaining grounds, all of which were fully

argued. It is sufficient to state my opinion

that this court should not interfere with any

conviction or sentence.

Now, it is a little ambiguous and it is not

quite clear ~hat he is saying but, on one view, he

is saying that he has dealt with the other

grounds - they have all in fact been fully argu~j.

The Court should be aware, as a matter of

information, that it is probable that any remission

of this matter to the Court of Criminal Appeal

would have to go to a new Court of Criminal Appeal,

Mr Justice McGarvie being probably no longer

available, so that there may be a question of

concede that any of the grounds which were argued	reargument. But certainly the Crown does not
but not dealt with by the judges are such that
there is any inevitability about the result.

McHUGH J:  What is the present position with the respondent?

Has he been released from prison?

MR BONGIORNO:  Yes. As the state of warrants presently

stands, he is the subject of an acquittal.

TOOHEY J:  Mr Bongiorno, the grounds of appeal seek certain

orders, one of which appears at page 20:

That the matter be remitted to the Full Court

of the Supreme Court of Victoria to be decided

according to law.

Glennon(2) 80 12/2/92

What is the matter that is to be remitted? Before

you answer that, could I ask you one further

question: are you asking this Court to set aside

the verdicts of acquittal and substitute its own

view as to whether there was a fair trial or not,

or are you asking the Court to say that the court

below approached the matter on the wrong footing

and to send it back to the court to deal with

again? Is that is what is meant by the words

"according to law"?

MR BONGIORNO:  No, Your Honour. What is meant by that third

order sought is that the rest of the appeal be
dealt with according to law. It might be, perhaps,

not expressed as well as it could be. It is our

submission that this Court should uphold the appeal

on the ground we have argued and that, in effect,

it should quash the decision of the Court of

Criminal Appeal, placing the situation back in the

position that there is no ground relating to

unfairness of the trial brought about by pre-trial publicity and the Court of Criminal Appeal then to deal with the matter on the other grounds that

remain outstanding.

TOOHEY J: Yes, thank you.

MR BONGIORNO:  I can see, on reading it now, that it is

perhaps not expressed as felicitously as it might

have been.

BRENNAN J: Apart from the notice of appeal to the Full

Court, the relevant parts of which Mr Dane has undertaken to provide, is there a formal order made

by the Full Court which is available?

MR BONGIORNO:  It was orally pronounced and there would not

normally have been - there would simply be an

associate's endorsement, I think. Pronounced by

Mr Justice McGarvie, the transcript shows:

The order of the court is:
(1)	The application for leave to appeal

against conviction is granted;

(2) The appeal is treated as instituted,

heard and determined instantly and allowed;
(3) All convictions and sentences are quashed

and it is directed that in place of each

conviction there be entered a judgment and

verdict of acquittal;

(4) Pursuant to section 18(1) of the Supreme

Court Act 1958 -

I add the word "sic" there -

the court orders the publication be prohibited

of any report of this proceeding in which

Glennon(2) 81 12/2/92

appears the name and address, or other

description, or other material by whi

identity might be established of any c_ the

complainants named in the presentment nerein.

Q.	Is there any other application to be made?
A.	No, sir. We don't wish to make an

application under the Appeal Costs Act. I'm

sorry. I do wish to make an

application ..... The Court grants the appellant

an indemnity certificate under section 14(c)

of the Appeal Costs Act 1964.

BRENNAN J: 

And is that oral judgment of sufficient

justification and authority then for the direction
to the governor of the gaol to release the

prisoner?

MR BONGIORNO:  Yes. As I understand it the prisoner who a

then	in custody was simply released at that poin~.
I do	not know whether I am in a position to assist
Your	Honours any further.

BRENNAN J: If there is a formal order, we should have it,

perhaps.

MR BONGIORNO:  Yes. I will look into that and make sure

that it is provided with the other material to the

Court which, I might indicate to the Court, is in hand and already being copied.

MASON CJ: Yes, and the transcript will include the

application to Judge Neesham and the proceedings.

MR BONGIORNO:	Yes, Your Honour, the whole of the proceedings before Judge Neesham. It was
transcribed.

The other matters by way of reply are very

short. So far as the question of - - -

DEANE J:  Mr Bongiorno, while you have been asked about

material, can I ask you this: since we have not

got anything else before us, are you content that

we accept the accuracy of the facts stated by

Mr Justice Nathan on pages 93 to 96 of the appeal

book?

MR BONGIORNO:  No, Your Honour, there is no quarrel with any

of those findings of Mr Justice Nathan.

DEANE J: Thank you. It seems to be a convenient potted

summary.

MR BONGIORNO:  Yes, I do not disagree with any of it,

Your Honour and Mr Justice Southwell and

Glennon(2) 82 12/2/92

Mr Justice McGarvie both in terms accept it as

being accurate.

The other two matters are very short. All counts on the presentment got to the jury from

which it can be argued - and that proposition was

not challenged on appeal. It follows that there
was the possibility of legal conviction on each of

those counts as a matter of strength of evidence,

so that the jury, in selecting counts as against

other counts, can be taken, in our submission, to

have been discriminating in the way that Mr Dane

concedes they did. So that it is not a case of

their having rejected counts that ought not to have

got to them, or where there was not sufficient
evidence to get to them, and that was after

applications to take those counts away - in respect

of most counts certainly, if not all.	But that
will be revealed from the transcript.

So that the question of the discriminating

nature of the jury verdict is made against the

background that all counts got to the jury in terms

which were not challenged in the Full Court.

The last matter of reply is to simply take up

the question that there is nothing in the

Full Court judgment of the judges in the majority,

which demonstrates a miscarriage of justice in

accordance with the section and I respectively

adopt what has been said by Mr Justice Dawson and

Justice Gaudron about that in the course of

argument with Mr Dane. So that the basis for the

ultimate order of the Full Court was not present

and even if that was the only matter, well then

section 35A(b) would apply.

Those are the only matters by way of reply, if

the Court pleases.

MASON CJ: Thank you, Mr Bongiorno. The Court will consider

its decision in this matter.

AT 3.33 PM THE MATTER WAS ADJOURNED SINE DIE

Glennon(2) 83 12/2/92