New South Wales Court of Criminal Appeal CITATION : Regina v Channell [2000] NSWCCA 289 FILE NUMBER(S) : CCA 60544/99 HEARING DATE(S) : Friday 4 August 2000 JUDGMENT DATE : 4 August 2000 PARTIES : Regina v Alan Douglas Channell JUDGMENT OF : Beazley JA at 20; Grove J at 2; Kirby J at 21 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/61/0227; 97/61/0228; 98/61/0073 LOWER COURT JUDICIAL Knight DCJ OFFICER : COUNSEL : L.M.B. Lamprati (Crown) C.B. Craigie (Applicant) SOLICITORS : S.E. O'Connor (Crown) D.J. Humphreys (Applicant) CATCHWORDS : Criminal Law and Procedure - Publicity in Newspaper - Potential Prejudice - Discharge of Jury - Fresh Panel and New Jury Struck - No Miscarriage of Discretion in Circumstances CASES CITED: R v George 1987 29 A Crim R 380 R v Maric 1978 52 ALJR 631 DECISION : Appeal Dismissed IN THE COURT OF CRIMINAL APPEAL 60544/99 BEAZLEY JA GROVE J KIRBY J Friday 4 August 2000 REGINA v ALAN DOUGLAS CHANNELL JUDGMENT 1 BEAZLEY JA: I will ask Grove J to give the first judgment. 2 GROVE J : This is an appeal against conviction for buggery following a trial before Knight DCJ and a jury in Dubbo District Court. The particulars of offence charged that it occurred between 1 and 25 December 1979. 3 The challenge to conviction is focussed upon relatively limited grounds and it will suffice to sketch the background facts briefly before turning to them. 4 The complainant was a child of a broken home and resided intermittently with various adult family members. In 1979 he came to the Sydney area to reside with his father who had been serving in the army. He made the acquaintance of the appellant who was in the army reserve. Then aged fifteen, the complainant had a falling out with his father and went to reside with a friend although he continued to attend school. On the last day of school term he was arrested by police in connection with an offence committed in company with the friend with whom he was residing. He was placed in a detention centre and brought before a court when he was released upon probation. It is not necessary to trace alleged understandings or misunderstandings of the terms of that probation. The relevant facts include that the complainant went to reside in a caravan to be shared with the appellant. This caravan was situated in property belonging to other persons. Whilst residing in those circumstances the appellant committed sexual assaults upon the complainant including the alleged act of buggery. 5 For reasons which the complainant later gave, he did not complain to police until approximately 1996. The appellant was ultimately charged and as the course of trial, to which I will next turn, shows he did not dispute committing the indecent assaults but denied committing buggery. 6 On 16 August 1999 the appellant was indicted upon three counts of indecent assault and one count of buggery. The record of proceedings shows his arraignment upon these counts in the presence of a jury panel. He pleaded guilty to the three counts of indecent assault and not guilty to the count of buggery. A jury of twelve was struck from the panel and a trial upon the contested count proceeded. 7 On the following day (17 August) it was drawn to his Honour's attention that an article had been published in the Daily Liberal and Macquarie Advocate, a newspaper circulating in the Dubbo area in which the following appeared under the headline "Indecent Assault Matter in Court": "A man charged with indecently assaulting 11 different children all under the age of 17 years appeared in Dubbo District Court yesterday. Police searched everyone entering the courtroom to protect the safety of the man who cannot be identified because of a suppression order requested by defence solicitors. The man sat quietly in the dock as solicitors negotiated the conditions of the trial which is expected to last several weeks. The jury was allowed into the courtroom several hours later for the start of the trial. Prosecuting solicitors suggested the man's case could be dealt with by way of up to five separate trials to run consecutively with separate juries. The man, who faces a lengthy prison sentence if found guilty of the charges, was granted bail for the duration of the trial." 8 In response to a joint submission on behalf of the Crown and the appellant, the learned trial judge discharged the jury without verdict. He refused a further application on behalf of the appellant that the further trial be adjourned to some future date in lieu of striking a new jury from a fresh panel which his Honour had been informed would become available on the following day. 9 On 18 August the appellant was arraigned before the panel summoned for that day on the single count charging buggery to which he pleaded not guilty. There is no complaint about the regularity of the conduct of that trial which concluded in the return of a guilty verdict by the jury. As counsel for the appellant noted with candour in his written submissions, the trial itself covered issues of very short compass and "but for the intervention of an external factor in the newspaper there may have been less basis for questioning a jury verdict plainly based on the acceptance of (the complainant's) account beyond reasonable doubt and the implicit rejection of the appellant's evidence of denial as raising the basis for reasonable doubt." 10 The grounds of appeal are expressed as follows: "The learned trial judge erred, having discharged a jury in the first trial of the present matter as a consequence of prejudicial publicity, in: 1(a) Not adjourning the recommenced trial to a date more distant than the next day of sitting. (b) Not adjourning the recommenced trial to a different venue. 2. Not discharging the jury in the recommenced trial upon evidence falling from the complainant which was likely to confirm to the jury the prejudicial matters which had brought about the discharge of the first jury." 11 The ingredients of complaint are allied and there is no need to deal with them separately. In addition, and expressly contingent upon the outcome of the appeal against conviction, the appellant sought leave to appeal against the sentences imposed by Knight DCJ when he dealt with the conviction on the count for buggery as well as nineteen further sexual assault offences. 12 Although for my part I express some reservation about the proposition that the evidence could not reasonably be made available at trial, or more particularly, at the time of the relevant application, there has been received affidavit evidence that in the week of 16 August 1999 there was only one District Court sitting in Dubbo and that the circulation of the newspaper in which the article complained of was published was approximately 4000 in the city of Dubbo. In his judgment on the issue, Knight DCJ had observed that the population of Dubbo approximated 38,000 people and that (for jury purposes) it draws upon a far greater number in the surrounding area. 13 It is undisputed that Knight DCJ was exercising a discretionary power and the principles applicable to the restraint upon intervention by appellate courts have been stated so often as not to require restatement now. Counsel for the appellant and for the Crown have diligently collected cases which have dealt with complaint about potential prejudice to fair trial by reason of adverse publicity. Each case must turn upon its own facts and the situation was neatly summarized by Street CJ in R v George 1987 29 A Crim R 380 when he said: "The principle is essentially one that places responsibility upon the trial judge to determine, in the light of the atmosphere of the trial and the nature and extent of the publicity, whether it is necessary to discharge the jury in the interests of ensuring a fair trial." 14 It was the learned trial judge's view that the risk of potential prejudice could be met by appropriate direction to the jury. In due course he cautioned them firmly to hearken to their duty to decide the case upon the evidence and not to allow their deliberations to be contaminated by extraneous matter from inappropriate sources. The main thrust of the argument on behalf of the appellant asserted that the most damaging impacts of the article were the revelation that eleven children under the age of seventeen years were involved and that five separate trials might be run consecutively with separate juries. Attention was drawn to the concession that the publication created significant prejudice which might not be overcome by direction. Of course, that prejudice related to the first trial then in progress. 15 The article complained of refers to assaulting eleven different children and the possibility of five separate trials. The jury empanelled in the second trial became aware from the outset that the appellant was being tried in respect of a single count concerning a single complainant. It is true that lawyers would have an appreciation of arrangements for separate trials and the severance of counts in indictments but it would not be unrealistic to suggest that a juror would think that a person charged with a single count did not fit the description of the accused described in the newspaper article. 16 Ground 2 is sought to be supported by the assertion that it was discovered towards the end of the trial that a local police officer's wife was a member of the jury. By specific amendment to the Jury Act, spouses of police officers and of others, including judges, were removed from the category of disqualification. In answer to a question in cross examination concerning the possible entitlement to compensation the complainant testified that he became aware of an entitlement when he was picked up at the airport on the previous Sunday by a police officer. It is contended that the combination of the relationship of the juror to a police officer and this remark produces a potential prejudice which bespeaks miscarriage of justice. I would reject the contention. In my opinion no ground for interference with the exercise of discretion by Knight DCJ has been made out. 17 As I have already observed, there has been no complaint about the conduct of the trial as such and it is not contended that this court should intervene other than on the basis of the grounds expressed. It should be borne in mind, however, that when there has been a refusal to discharge a jury followed by conviction, the appeal is against the conviction and not against the refusal to discharge: R v Maric 1978 52 ALJR 631. 18 I would dismiss the appeal. The application for leave to appeal against the overall sentence was contingent upon the appellant's success in the appeal against conviction and I therefore propose the following orders: 19 That the appeal against conviction be dismissed and that application for leave to appeal against sentence be refused. 20 BEAZLEY JA: I agree. 21 KIRBY J: Whilst I am confident that were I confronted by a similar application to that which came before Knight DCJ in this trial I would have adjourned the trial to a date more distant than the day after that application, that is not the test. The test is as outlined by Grove J. I agree that the appeal should be dismissed. 22 BEAZLEY JA: The orders of the Court are as proposed by Grove J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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