Citation: Regina v Channell [2000] NSWCCA 289
Court: New South Wales Court of Criminal Appeal
Date: 4 August 2000
Judge(s): Beazley JA, Grove J, Kirby J
Background
The appellant was tried in the Dubbo District Court on charges including one count of buggery and three counts of indecent assault, alleged to have occurred in 1979 when the complainant was fifteen years old. The complainant had resided with the appellant in a shared caravan and did not report the offending to police until approximately 1996. At trial, the appellant pleaded guilty to the three counts of indecent assault but contested the buggery charge.
On the second day of the first trial, a local newspaper published an article containing significantly misleading and prejudicial information. The article referenced eleven child complainants and the possibility of five consecutive trials with separate juries. None of this reflected the actual proceedings, which concerned a single complainant and a single contested count.
On a joint application by both the Crown and the defence, the trial judge discharged the first jury without verdict. The appellant then sought an adjournment to a more distant date and, alternatively, a transfer to a different venue. The trial judge refused both applications, empanelled a fresh jury the following day, and proceeded to trial. The appellant was convicted and appealed.
Legal Issues
- Whether the trial judge erred in refusing to adjourn the recommenced trial to a date substantially later than the day after the first jury's discharge
- Whether the trial judge erred in refusing to transfer the trial to a different venue
- Whether the trial judge should have discharged the second jury following evidence given by the complainant during cross-examination, which the appellant contended compounded the prejudicial effect of the newspaper article
- Whether the presence of a police officer's spouse on the jury, combined with that evidence, gave rise to a miscarriage of justice
Decision
The Court unanimously dismissed the appeal, finding no demonstrated error in the exercise of the trial judge's discretion. The Court applied the well-established principle that each case of alleged prejudice through adverse publicity must be assessed on its own facts, and that the trial judge bears primary responsibility for managing that risk in light of the atmosphere of the proceedings and the nature and extent of the publicity.
On the adjournment and venue questions, the Court noted that the circulating newspaper had a readership of approximately 4,000 in a city of around 38,000 people, which drew jurors from an even wider surrounding area. The new jury was empanelled from a fresh panel with no apparent connection to the first. Critically, the second jury knew from the outset that the trial concerned a single count relating to a single complainant, which materially distinguished the proceedings from the newspaper's description of a multi-complainant, multi-trial matter. The Court considered it realistic to conclude that jurors would not have identified the accused as the person described in the article.
On the second ground, the Court rejected the contention that evidence given during cross-examination, when combined with the jury composition issue, produced a miscarriage of justice. The legislation had removed police spouses from the category of disqualified jurors, and the Court found no proper basis to treat that circumstance as generating unfairness.
Kirby J added a note of candour, observing that he personally would have adjourned the trial to a more distant date. However, his Honour confirmed that personal preference is not the applicable test: the question is whether the trial judge's exercise of discretion miscarried, and it did not.
Orders Made
- Appeal against conviction dismissed
- Application for leave to appeal against sentence refused (the sentence application was contingent on success in the conviction appeal)
Key Takeaways
- Each case of alleged trial prejudice arising from adverse publicity turns on its own facts; no single rule dictates when a jury must be discharged or a trial adjourned.
- The test on appeal is whether the trial judge's discretion miscarried, not whether the appellate court would have exercised it differently. Kirby J's personal view that a longer adjournment would have been preferable did not, by itself, establish appealable error.
- A conviction appeal following a refusal to discharge a jury is properly framed as an appeal against the conviction itself, not against the interlocutory refusal to discharge: R v Maric (1978) 52 ALJR 631.
- Where a second jury is empanelled on a single-count indictment, and a newspaper article described a far broader and different proceeding, the Court of Criminal Appeal accepted that ordinary jurors may well not have connected the article to the accused before them.
- Removal of a category of persons from jury disqualification by statute (here, spouses of police officers) does not, without more, provide a basis for discharge or a finding of miscarriage of justice.
Legislation and Cases Referenced
Cases:
- R v George (1987) 29 A Crim R 380
- R v Maric (1978) 52 ALJR 631
Legislation:
- Jury Act (NSW) (specific provision removing police spouses from jury disqualification, as referenced in the judgment; section number not specified in the text)