REGINA v LOWE [2003] NSWCCA 303

New South Wales Court of Criminal Appeal

CITATION : REGINA v LOWE [2003] NSWCCA 303 HEARING DATE(S) : 28/08/2003 JUDGMENT DATE : 28 August 2003

JUDGMENT OF : Ipp JA at 1; Grove J at 2; Dowd J at 3 DECISION : Leave to appeal granted; application dismissed.

CATCHWORDS : Exercise of judicial discretion - onus on applicant to establish error - pre-trial publicity. LEGISLATION CITED : Criminal Appeal Act 1912 CASES CITED : House v The King (1936) 55 CLR 499 Williams v Spautz (1992) 174 CLR 509 at 529 PARTIES : Simon Lowe (Applicant) The Crown FILE NUMBER(S) : CCA 60325/03 COUNSEL : C Davenport (Applicant) D Frearson (Crown) SOLICITORS : SE O'Connor (Crown)

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/1262 FILE NUMBER(S) : LOWER COURT Taylor DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60325/03

IPP JA GROVE J DOWD J

Thursday 28 August 2003 REGINA v SIMON LOWE Judgment

1 IPP JA: I agree with Dowd J. I consider that no error in discretion has been established.

2 GROVE J: I also agree.

3 DOWD J: This is an application for leave to appeal under s5F of the Criminal Appeal Act 1912 ("the Act"). 4 The applicant was to stand trial at the Sydney District Court on Monday 25 August 2003, having been charged with a number of offences on 8 January 2002. He was committed for trial and arraigned on 14 February 2003. A trial date was set for 4 July 2003. The trial date was then vacated by consent, as the applicant was awaiting the outcome of an appeal to the Court of Criminal Appeal which was, in part, successful and which generated a degree of publicity. 5 On 15 August 2003 the applicant came before Taylor DCJ to vacate the trial date and have the matter listed for trial in two months' time. The basis of the application was that the applicant could not have had a fair trial because of the media publicity which had surrounded him during the two preceding months. His Honour dismissed the application and the matter then came before the list judge, at which time a further application was also dismissed. 6 The matter is set down to commence on Monday 1 September 2003.