Citation: [1999] NSWCCA 114
Court: NSW Court of Criminal Appeal
Date: 29 April 1999
Judges: Spigelman CJ, Greg James J, Smart AJ
Background
The two accused faced trial in the District Court on charges of conspiracy to import a prohibited import. By the time the matter came before the Court of Criminal Appeal, three previous trials had already been aborted. The first ended in a jury disagreement; the second was discharged after prejudicial material was placed before the jury through no fault of any legal practitioner; and the third was discharged after the jury was approached, following the conclusion of the summing up, by a disguised woman who handed jurors an envelope containing highly prejudicial and inadmissible material about one of the accused.
Additional evidence before the trial judge included surveillance of at least one juror by persons associated with the accused, intercepted telephone communications, and material suggesting a separate approach to another juror. A former detective assisting one accused's legal team, and another individual, had been charged with conspiracy to pervert the course of justice.
Against that background, District Court Judge Flannery made a series of special orders for the conduct of the fourth trial. The two accused appealed those orders to the Court of Criminal Appeal. They also sought leave to appeal from a separate interlocutory decision by Flannery DCJ refusing an application for a permanent or twelve-month stay of proceedings, prompted in part by pre-trial media publicity about the jury tampering incident.
Legal Issues
- Whether Flannery DCJ had a proper basis to make special protective orders governing the conduct of the trial, including holding proceedings in camera (with accredited media and legal practitioners permitted to attend), providing sheriffs' transport for jurors, and sequestering the jury once it retired to deliberate.
- Whether those special arrangements would, of themselves or cumulatively with pre-trial publicity, deprive the accused of a fair trial.
- Whether the trial judge's refusal to stay the proceedings (permanently or for twelve months) was correct in light of the media coverage of the third trial's abortion.
Decision
The Court unanimously dismissed both appeals. On the special arrangements, Spigelman CJ found that Flannery DCJ had correctly applied the test requiring "exceptional and special" circumstances before such orders could be made. The history of three aborted trials, the five-year protection of the principal Crown witness, the repeated attendance of overseas witnesses, and, most significantly, the determined and persistent conduct aimed at interfering with the jury process all satisfied that demanding threshold.
On the question of fair trial, the Court found that the special arrangements were themselves designed to protect the accused's right to a fair trial, not to undermine it. The argument that the arrangements would prejudice the accused was rejected. Spigelman CJ considered that adequate directions to the jury, combined with the protective measures in place, were capable of ensuring fairness.
On the stay application, the Court found that Flannery DCJ's refusal to stay the proceedings disclosed no error. The media articles about the third trial's discharge had been published months earlier, in November 1998, and the Court was satisfied the publicity would not prevent a fair trial from being conducted the following week.
Greg James J added that the orders were interlocutory in nature and could be varied by the trial judge at any time. His Honour also noted that, should any miscarriage emerge after conviction, the availability of a further appeal would not necessarily be foreclosed by the dismissal of these interlocutory appeals.
Orders Made
- The appeal from Flannery DCJ's special arrangements orders (certified as appropriate for determination by the Court of Criminal Appeal) was dismissed.
- Leave to appeal from the refusal of the stay of proceedings was granted, and that appeal was also dismissed.
- Spigelman CJ directed those present, including accredited media, to take great care in publishing aspects of the judgment, particularly the content of the juror note from the first trial.
Key Takeaways
- The Court of Criminal Appeal confirmed that special trial management orders, including in camera proceedings, juror transport, and jury sequestration, are available but require "exceptional and special" circumstances to justify their exercise.
- A history of three aborted trials, persistent apparent interference with juries, and close surveillance of jurors by persons connected to the accused collectively satisfied that heightened threshold in this case.
- Protective orders aimed at safeguarding jury integrity are not, without more, antithetical to an accused's right to a fair trial; their purpose is to assist in securing fairness, not to compromise it.
- In dismissing the stay application, the Court found that media coverage published several months before a trial was not sufficient, in these circumstances, to prevent a fair trial from proceeding.
- Interlocutory orders of this kind remain subject to variation by the trial judge throughout the proceedings, and their existence does not necessarily foreclose a further appeal on grounds of miscarriage if a conviction follows.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F(3)(b)
Cases:
- Mr C (1993) 67 ACR 562 (applied by Flannery DCJ on the test for special trial arrangements)
- Maric v The Queen (1978) 52 ALJR 631 (noted by Greg James J on the availability of appeal after conviction following interlocutory proceedings)