PORTER v WALLER [1989] NSWCA 168

PORTER v WALLER

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, MAHONEY and PRIESTLEY JJA 13 July 1989

[1989] NSWCA 168

Gleeson CJ and Mahoney JA It is alleged that on 24 April 1989 John Albert Porter, the appellant in these proceedings, shot a police officer, Constable McQueen who subsequently died. On 27 April 1989 police officers searching for Mr Porter forced entry to the residence of the late Mr Gundy and, shortly thereafterwards, Mr Gundy was fatally wounded.

On 3 May Mr Porter was arrested in Queensland and was charged with the murder of Constable McQueen. At about the same time an inquest into the death of Mr Gundy was formally commenced. This Court has been informed that a jury has been empanelled for the purpose of that inquest and that the hearing will commence following the termination of proceedings in this Court.

On 3 July Mr Porter was committed for trial. In the ordinary course - and in the absence of the making of any order for expedition - the trial of Mr Porter would commence in late 1989 or early 1990. The inquest is expected to last for a period between four and six weeks.

On 10 July application was made to Smart J in this Court for an order prohibiting the Coroner, Mr Waller, from embarking upon the Coronial Inquest into the death of the late Mr Gundy or, alternatively, for an order that the Coroner and the Director of Public Prosecutions be restrained from adducing and receiving any evidence concerning the appellant or the police perception of the appellant during such inquest.

The basis of the application was that it was apprehended that there would emerge during the inquest material relating to the appellant which would not normally be admissible at his trial for murder and that such material would prevent, or at least substantially impede, his fair trial. Further it was contended that the proceedings at the inquest were likely to receive a great deal of media coverage and that such coverage was likely to extend over the whole of the period of the inquest. No attempt was made, either by evidence led before Smart J or in this Court, to measure the extent of publicity which has already been given to matters concerning the appellant or the deaths of Constable McQueen and Mr Gundy; nor has any attempt been made to quantify the extent to which any material likely to be led in the Coronial Inquest will add to whatever information, possibly prejudicial to the appellant, might already be abroad in the community.