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Court of Criminal Appeal 12 March 2004

Regina v Forbes

[2004] NSWCCA 55

Public order & justice offences
CRIMINAL LAW TRIAL NEARING COMPLETION

Citation: Regina v Forbes [2004] NSWCCA 55
Court: New South Wales Court of Criminal Appeal
Date: 12 March 2004
Judge(s): Grove J, Simpson J, Sperling J

Background

The accused was on trial before Hulme J and a jury in Griffith, NSW, facing a murder charge. By the time this interlocutory application reached the Court of Criminal Appeal, the trial had been running for approximately a month, the Crown case had closed, and the accused's own evidence was nearly complete. Summing-up was expected to begin the following Monday.

Two categories of newspaper publication had prompted defence applications to discharge the jury at trial. The first involved the Border Mail, an Albury newspaper published roughly 300 kilometres from Griffith, which had carried some 25 reports over time covering committal proceedings, police investigations, and the fact that the accused had pleaded guilty to manslaughter arising from a separate, unrelated murder charge. The second involved the Griffith Area News, a local paper, which during the trial published a photograph of the accused arriving at court handcuffed, surrounded by custodial officers and an Alsatian dog, under a caption describing him as an "accused murderer."

Hulme J refused both discharge applications. The accused then sought leave to appeal those interlocutory rulings to the Court of Criminal Appeal, and alternatively sought an order moving the trial venue from Griffith to Sydney.

  • Whether the trial judge erred in exercising his discretion to refuse discharge of the jury following publication of potentially prejudicial material in the Border Mail, including reference to the accused's guilty plea to manslaughter on a separate charge.
  • Whether the trial judge erred in refusing a further discharge application after the Griffith Area News published a photograph of the accused during the trial that could suggest he was a dangerous person.
  • Whether the Court of Criminal Appeal should intervene in the final stages of a running trial to correct either of those discretionary rulings.

Decision

All three judges refused leave to appeal, though each expressed separate reasons.

Grove J found no basis to disturb either of the trial judge's discretionary decisions. His Honour noted that the Border Mail had very limited circulation in Griffith (around 20 to 40 copies per day across three newsagencies) and that the description "accused murderer" in the local paper was, at most, an ambiguity readily curable by appropriate jury direction. Applying the well-known principle from The Queen v Glennon, Grove J confirmed that the question of whether to discharge a jury rests with the trial judge, and that any remaining concerns could be reviewed by an appellate court after verdict if a conviction resulted.

Simpson J acknowledged the publications were problematic and accepted that the Area News photograph should not have been published, as it was capable of portraying the accused as violent or a potential escapee. However, her Honour identified a factor that substantially diminished the prejudice to the accused: because he had already pleaded guilty to manslaughter on a separate matter and would inevitably receive a custodial sentence for it, any time spent in custody pending an appeal from the present trial would not constitute additional unjust imprisonment. The practical prejudice was therefore "diminished almost out of existence."

Sperling J took a similarly contextual approach, emphasising that the Court was exercising its own discretion as at the date of the appeal, not assessing the trial judge's decision in isolation. His Honour held that the unusual circumstance of the accused remaining in custody regardless of the outcome meant that only an overwhelming case of irremediable prejudice could warrant terminating the trial at such a late stage. No such case had been made out.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a trial judge's decision to refuse jury discharge is a discretionary one, and well-established principles limit appellate intervention in such exercises of discretion.
  • Refusing leave to appeal, the Court of Criminal Appeal held that the stage of trial is a highly relevant consideration: the closer a trial is to completion, the less likely an appellate court will intervene in an interlocutory ruling.
  • Where a convicted accused will remain in custody regardless of the outcome of the impugned trial, the practical prejudice arising from potentially unfair publicity may be substantially reduced, weighing against the grant of interlocutory leave.
  • Potentially prejudicial newspaper material of limited local circulation does not automatically require a jury to be discharged; the trial judge retains discretion to determine whether a fair trial can still be achieved, including through appropriate directions.
  • Under the framework confirmed in Glennon, if a trial proceeds to conviction despite contested prejudicial publicity, the appellate court retains the ability to review the matter in light of all that actually occurred at trial.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act (NSW), s 5F (interlocutory appeals)

Cases:
- The Queen v Glennon (1992) 173 CLR 592