REGINA v RICHARDS & BIJKERK [1999] NSWCCA 114

Reported Decision : 107 A Crim R 318

New South Wales Court of Criminal Appeal CITATION : REGINA v RICHARDS & BIJKERK [1999] NSWCCA 114 FILE NUMBER(S) : CCA 60185/99; 60187/99 HEARING DATE(S) : 29/04/99 JUDGMENT DATE : 29 April 1999

PARTIES : Warren Austin RICHARDS Roy Anthony BIJKERK JUDGMENT OF : Spigelman CJ at 1; Greg James J at 60; Smart AJ at 64

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 95/11/0542 LOWER COURT JUDICIAL OFFICER : Flannery DCJ

J I Doris (Richards) COUNSEL : B W Cross (Bijkerk) M J Ierace/P J Renehan (Crown) Grahame W Howe & Co (Richards) SOLICITORS : Peter Murp[hy (Bijkerk) Commonwealth DPP (Crown) CATCHWORDS : CRIMINAL LAW; interlocutory order; special arrangements for jury; prevention of fair trial; CRIMINAL LAW; interlocutory order; proceedings to be held in camera; public interest in open proceedings; CRIMINAL LAW; interlocutory judgment; stay of proceedings; effect of publicity on fair trial ACTS CITED : Criminal Appeal Act 1912 (NSW) DECISION : Appeal dismissed

- 23 - IN THE COURT OF CRIMINAL APPEAL

60185/99 60187/99

SPIGELMAN CJ GREG JAMES J SMART AJ

Thursday 29 April 1999

REGINA v Warren Austin RICHARDS REGINA v Roy Anthony BIJKERK JUDGMENT

1 SPIGELMAN CJ: The first matter before the court is an appeal from certain orders made by Flannery DCJ making special arrangements for the conduct of a trial of the two appellants who are alleged to have been parties to a conspiracy to import a prohibited import. The orders made by his Honour were as follows: "(a) The proceedings are to be held in camera subject to accredited members of the media and members of the legal profession to be permitted to be present during the court proceedings. (b) The Sheriff to provide transportation for the jurors to and from court in a manner deemed appropriate by the Sheriff. (d) From the time the jury have retired to consider their verdicts until the time of the verdicts being returned the jury are to be locked up." 2 His Honour has certified that his judgment on this matter delivered on 23 April 1999 is a proper one for the determination on appeal by the Court of Criminal Appeal. In his certificate his Honour said: "The trial which I am about to commence is the fourth trial. The first trial resulted in a disagreement between the jury. The second trial resulted in a discharge of the jury by reason of some impermissible and prejudicial material given through no fault of any legal practitioner. The third trial resulted in a discharge after the summing up had concluded by reason of an attempted tampering with members of the jury. The order I make closing the court and ancillary orders are exceptional orders and, with respect, it seemed convenient that the correctness of those orders should be determined prior to the commencement of the trial." 3 By reason of this certificate the appeal from his Honour's orders by the two accused is a competent appeal and does not require leave under s5F(3)(b) of the Criminal Appeal Act 1912 (NSW). 4 The grounds for appeal are three fold: 1. There was no proper basis for his Honour Judge Flannery to make the said orders. 2. The appellant will not receive a fair trial if the orders are not revoked.