New South Wales Court of Criminal Appeal CITATION : Regina v Forbes [2004] NSWCCA 55 HEARING DATE(S) : Friday 12 March 2004 JUDGMENT DATE : 12 March 2004 JUDGMENT OF : Grove J at 1; Simpson J at 18; Sperling J at 25 DECISION : Leave to appeal refused CATCHWORDS : CRIMINAL LAW - INTERLOCUTORY RULING REFUSING DISCHARGE OF JURY - TRIAL NEARING COMPLETION - POTENTIALLY PREJUDICIAL MATERIAL PUBLISHED IN NEWSPAPER OF LIMITED CIRCULATION IN PLACE OF TRIAL AND PRIOR TO ITS COMMENCEMENT - FURTHER MATERIAL IN LOCAL NEWSPAPER DURING TRIAL - CIRCUMSTANCES NOT WARRANTING INTERVENTION BY APPEAL COURT CASES CITED : The Queen v Glennon 1992 173 CLR 592 PARTIES : Regina v Warren Alan Forbes FILE NUMBER(S) : CCA 60085/04 COUNSEL : G.I.O. Rowling (Crown) B. Cross (Applicant) SOLICITORS : S. Kavanaugh (Crown) P. White (Applicant) LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70039/03 FILE NUMBER(S) : LOWER COURT Hulme J JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60085/04 GROVE J SIMPSON J SPERLING J Friday 12 March 2004 REGINA v WARREN ALAN FORBES Judgment 1 GROVE J: This is an application pursuant to s 5F of the Criminal Appeal Act brought in relation to a trial that is currently proceeding before Hulme J and a jury in the city of Griffith. An affidavit of Adelle Hudson shows that the Crown case closed on the 8th of this month and that evidence called by the applicant is very close to finished. It is common ground that it is anticipated that his Honour will commence summing-up to the jury on Monday next. The trial has been proceeding for approximately a month. 2 This application seeks, in effect, that this Court grant leave and intervene in respect of two rulings made by his Honour in each of which he refused to discharge the jury. A secondary order, which was forecast, was that the applicant wished the venue of the trial to be moved from Griffith to Sydney. 3 The first application was made to his Honour when the trial had been proceeding for about five or six days, two of which had been occupied in a voir dire hearing. The basis of that application, as appears from his Honour's published ruling, was that he came to the conclusion that certain material published in a newspaper called the Border Mail did not give rise to circumstances that would render the trial unfair. 4 The Border Mail is a newspaper published in Albury, a city some 300 kilometres from Griffith, and it appears from the material before us that counsel appearing for the applicant at trial saw copies of that newspaper in a newsagency in Griffith. Subsequent enquiries revealed, and there was some assent to the results, that the sales of that newspaper in the three relevant Griffith newsagencies totalled on Saturdays about forty copies and on other days of the week about twenty and sometimes less than twenty. Nevertheless, it is pointed out that in common with newspapers around the world, the Border Mail is available to those who have access to the Internet. 5 There were multiple publications in the Border Mail relating to the applicant's forensic situation. This is hardly surprising as what was involved was a matter of obvious public interest, particularly in the local area. It appears that the applicant has been charged with two separate murders and the material before us shows that there is no association or link between them. 6 The publications on some twenty-five occasions which have been drawn to our attention in the Border Mail were substantially of three types. The first were reportings of committal proceedings in respect of the murders; the second was publication in relation to the police investigation and the third were publications relating to the duality of charges against the applicant. 7 The situation is that prior to the present trial the applicant has been presented in respect of the charge of the second murder and pleaded guilty to manslaughter, which has been accepted by the Crown in discharge of the relevant indictment. He has not yet been sentenced in respect of that matter. 8 It might be observed that whilst, as counsel for the applicant has said today, much of that material may be viewed as prejudicial to the applicant, that is inevitably the case when there is powerful incriminating evidence given at committal proceedings. Indeed, it is often remarked that merely to observe that prosecution evidence is prejudicial is to state the obvious. A person is charged because law enforcement authorities wish to make serious allegations against that person. 9 His Honour gave reasons for exercising his discretion against ordering the discharge of the jury. There are well-known restraints upon this Court intervening to overturn such an exercise of discretion and now is not an occasion for those to be once again recited. 10 The matter was raised again, however, on the first of this month when it came to attention that the Area News, a newspaper published in Griffith itself, had published a photograph of the applicant arriving at court with a caption describing him as an "accused murderer". The photograph showed the applicant, handcuffed, alighting from a vehicle and around him, near what appears to be the entrance to Griffith Court House, are some six officers, possibly Corrective Services officers or a mixture of Corrective Services officers and police, and one of them has on a lead an Alsatian dog. The text underneath the photograph includes reference to "an order made by his Honour to suppress the name of a witness." This was a matter referred to in the application but not raised again before this Court. For my part, I cannot see that anything could turn upon that part of the publication. 11 The description of the applicant as an "accused murderer" is, of course, ambiguous. In one sense it must be obvious to the jury that the reason that he is there is that he is accused of murder. The other side of the coin is that it is capable of being interpreted as suggesting that he is already a person of that description. For my part, I would think that any ambiguity is something that in his discretion a trial judge could easily rectify by appropriate direction. 12 The significant thrust of the applicant's argument before this Court has been focused upon the appearance of the applicant surrounded, as it were, by custodial officers and with a dog there present. It is arguable that that may be viewed as a suggestion that the applicant himself is a dangerous person or, as was suggested in an exchange with counsel, an alternative available interpretation might be that he was in need of protection himself. Be that as it may, it seems to me that this was a matter which, if desired, could readily be cured by an appropriate direction. 13 The matter before this Court, of course, is whether or not we should intervene in relation to his Honour's exercise of discretion. In my view there is no cause shown for us so to do. I acknowledge that the submission on behalf of the applicant was based upon an accumulation of these two matters rather than viewing them separately, but on that basis I come to no different conclusion. 14 Reference was made to the well-known remarks of Mason CJ and Toohey J in The Queen v Glennon (1992) 173 CLR 592 at p 604. This has particular reference to the publication in the Border Mail of the circumstance of the conviction of the applicant for manslaughter consequent on his plea of guilty. It is true, as their Honours there pointed out, that reception of inadmissible evidence of a prior conviction is something zealously guarded against by the law. That is, of course, not this case. It is not a question of such evidence being put before the jury but a speculation or risk that some juror may have acquired this information from a newspaper published some 300 kilometres from the area from which the jury was drawn but, to an extent, available in that area. 15 As the judgment goes on to point out, it is for the trial judge to decide whether it is necessary to discharge the jury in the interests of securing a fair trial. In this case his Honour came to the conclusion that it was not. 16 I am unpersuaded his Honour was wrong. Their Honours go on to point out, of course, that if the trial proceeds and results in a conviction, this Court can review the matter in the light of what has in fact occurred. 17 Given all those circumstances and the circumstance that I referred to in the beginning, namely, that this trial is almost completed, I regard it as entirely inappropriate for this Court at this stage to intervene. I would refuse leave. 18 SIMPSON J: I agree with the order proposed but I wish to state my reasons separately. I accept that the publication of the fact the applicant was charged with two separate murders is a matter that in a country town would be likely to remain in the minds of potential jurors, or others who might have read the material and then seen fit to communicate it to a juror. Had the realisation of the publication in Griffith come to light at an earlier stage, a change of venue if sought would have been appropriate. 19 The additional material to which the presiding judge has referred that was published was also capable of adding to the prejudice. It is not without significance that this material was available on the Internet, one of the features of which is ready retrieval of material that might previously have sunk into oblivion; that is, individuals who recalled having read something about these charges could have ready access and revisit the publications. 20 The photograph in the Griffith newspaper during the course of the trial should not have been published. It was capable of identifying the applicant as a person who appeared to be violent and/or a potential escapee. 21 The judgment we have to make is a discretionary one and we are called upon to make it in the closing stages of the current trial. That would be a less powerful consideration but for one thing, that is, the applicant's previous plea of guilty to a charge of manslaughter. Although there was no direct evidence before us we were told that he has not yet been sentenced. But counsel conceded that the overwhelming likelihood is that he will be sentenced to a term of imprisonment for that offence. 22 The consequence is this: let it be assumed the publicity rendered the present trial unfair and let it further be assumed that the applicant is convicted in the present trial. In the ordinary course that would mean that the applicant would spend time in custody pending an appeal referable to the present charge, that is time that he should not spend in custody. Should he ultimately be acquitted, that would be a great injustice. 23 In those circumstances it is unattractive to say simply that he has his remedy on appeal, but that is not this case. It may be accepted that the applicant will remain in custody on the manslaughter charge. Even if it emerges that the present trial is unfair, it will not have resulted in any additional time spent in custody by him. The prejudice to him is thus diminished almost out of existence. 24 For those reasons, I agree that leave should be refused. 25 SPERLING J: I also would refuse leave. 26 This Court exercises its discretion as to whether to grant leave to appeal having regard to the stage reached in the trial as of today, 12 March. By contrast, his Honour exercised his discretion having regard to the stages reached in the trial, respectively on 25 February and 1 March. 27 It is a further relevant and unusual circumstance that if leave were granted in the present matter and the appeal allowed, the applicant would remain in custody pending a new trial because of another matter. 28 In my view, there would need to be an overwhelming case of irremediable prejudice to warrant this Court terminating the trial in the foregoing circumstances. 29 Having regard to those considerations, I would refuse leave. 30 GROVE J: The order of the Court, therefore, is leave to appeal refused. ********** Last Modified: 03/26/2004 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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