Citation: Regina v Lowe [2003] NSWCCA 303
Court: NSW Court of Criminal Appeal
Date: 28 August 2003
Judges: Ipp JA, Grove J, Dowd J
Background
The applicant had been charged with a number of offences in January 2002 and was committed for trial in the Sydney District Court. His trial was originally listed for 4 July 2003 but was vacated by consent while he pursued a separate appeal to the Court of Criminal Appeal. That appeal was partly successful and attracted media coverage.
With trial relisted for 25 August 2003, the applicant appeared before Taylor DCJ on 15 August 2003 seeking to adjourn the date for at least two months. He argued that the publicity surrounding the earlier appeal made a fair trial impossible. Taylor DCJ dismissed that application, and a further application before the list judge was also dismissed.
The applicant then sought leave to appeal to the Court of Criminal Appeal. The court heard the matter on 28 August 2003, three days before the trial was due to commence on 1 September 2003. During the appeal hearing, counsel varied the relief sought to simply returning the matter to the list for a fresh date, which might fall later in 2003 or early 2024.
Legal Issues
- Whether the District Court Judge erred in the exercise of his discretion by refusing to vacate the trial date in light of pre-trial publicity
- Whether the applicant had established an abuse of process sufficient to warrant intervention by the Court of Criminal Appeal
- Whether the nature and extent of the media coverage was such that no reasonable judge could have declined to adjourn the trial
Decision
The Court of Criminal Appeal approached the matter as a court of error, applying the principles in House v The King (1936) 55 CLR 499. That framework requires the applicant to demonstrate that the primary judge's exercise of discretion was actually wrong, not merely that a different decision was open.
Dowd J, with whom Ipp JA and Grove J agreed, found that the applicant had not established any error in Taylor DCJ's exercise of discretion. His Honour had considered both the nature and extent of the publicity, and concluded it was the kind of material that could be adequately addressed through judicial directions to the jury. The Court of Criminal Appeal accepted that such directions carry real weight with juries.
The court also noted that any further publicity arising between the hearing and trial, including an article published the day before the appeal, could be dealt with by the trial judge as it arose. An application about publicity is always available to a party during the course of a trial. The court was not persuaded that no reasonable judge could have reached Taylor DCJ's conclusion, and leave to appeal was granted but the application dismissed.
Orders Made
- Leave to appeal granted
- Application dismissed
Key Takeaways
- A court of error will only interfere with a trial judge's discretion to refuse an adjournment based on pre-trial publicity where the applicant demonstrates actual error in that exercise of discretion, applying House v The King.
- The onus lies on the applicant to establish an abuse of process; it is not sufficient to show that a different decision was open to the primary judge.
- Pre-trial publicity does not automatically warrant vacation of a trial date. Where the publicity is of a kind that can be addressed by jury directions, a judge's refusal to adjourn will generally be unassailable.
- Ongoing or future publicity is not necessarily a reason to adjourn a trial in advance; the trial judge retains the capacity to deal with such matters as they arise during the proceedings.
- In dismissing the application, the Court of Criminal Appeal reaffirmed that jury directions on publicity are recognised as having a cogent effect, supporting the view that adjournment is not the only available remedy.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
Cases
- House v The King (1936) 55 CLR 499
- Williams v Spautz (1992) 174 CLR 509