R v Lmw [1999] NSWSC 1109 (17 November 1999)

Last Updated: 17 November 1999

NEW SOUTH WALES SUPREME COURT

CITATION: R v LMW [1999] NSWSC 1109

CURRENT JURISDICTION: Criminal

FILE NUMBER(S): 070031/99

HEARING DATE{S): 15 November 1999 -

JUDGMENT DATE: 17/11/1999

PARTIES:

Regina

LMW (Accused)

JUDGMENT OF: Studdert J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

G. Smith (Crown)

P. Zahra (Accused)

SOLICITORS:

Office of the Director of Public Prosecutions (Crown)

Legal Aid Commission (Accused)

CATCHWORDS:

Application for permanent stay of proceedings

ACTS CITED:

DECISION:

Application refused

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

CRIMINAL DIVISION

STUDDERT J

Tuesday 16 November 1999

070031/99 REGINA v LMW

JUDGMENT

(On application for permanent stay)

1 HIS HONOUR: When an indictment was presented yesterday charging LMW with the manslaughter of Corey Davis, Mr Zahra, who appears for the young child so charged, made an application for a permanent stay of proceedings. Mr Zahra relied upon an affidavit of his instructing solicitor, Matthew Johnston, sworn today, and upon newspaper reports and a video relating to the accused.

2 The deceased, who was a young child, indeed some years younger than the accused, met his death by drowning on 2 March 1998. The accused eventually appeared at the Bidura Children's Court and committal proceedings were heard on 28 and 29 January 1999. There were media reports on these proceedings. The hearing of evidence on the dates I have mentioned was followed by submissions by counsel on 23 March 1999 and then on 28 April 1999 the learned magistrate made his decision, itself the subject of extensive reporting by the media. The learned magistrate made it clear that the evidence satisfied him that the accused had caused the death of the deceased, and that the accused knew what he was doing was wrong, but the magistrate went on to determine that the evidence was not strong enough to justify a manslaughter trial before a jury. The magistrate was reported as saying:

"With a best will in the world, the Supreme Court is a court for adults, and many members of the community would find a child defendant to be quite out of place in that environment...The circumstances of the case are such that a jury would be more likely to interpret the incident as an act of bullying that went wrong."

3 The magistrate's decision was followed promptly by a decision taken by the Director of Public Prosecutions on 4 May 1999 to proceed against the accused on an ex officio indictment. Hence the indictment which has prompted the present application.

4 Mr Zahra seeks a permanent stay of proceedings upon the basis that the publicity which has been given to this matter is such that the accused cannot have a fair trial. That application is opposed by the Crown.

5 The material which has prompted this application comprises newspaper reports tendered as Exhibit A and a video recording of televised programmes tendered as Exhibit B. That material has been supplemented by further newspaper reports tendered by the Crown as Exhibit 1.

6 I have closely considered all this material. It would not be useful for me to set out in this judgment the detail of the various articles, nor would it be useful for me to set out what I saw and heard in the video, Exhibit B, played in Court. All this material merited close attention and I have endeavoured to give it close attention. It is, I consider, a fair assessment that the media material in question includes

(i) material in the form of reporting on what occurred at the committal proceedings;

(ii) reporting of the decision of the magistrate and his reasons;

(iii) there has been reporting in the form of comment on the case and on the concept of criminal responsibility for those below the age of fourteen years. The material tendered included comment on this by the magistrate presiding at the committal proceedings, comment by a psychiatrist, and comment by the Attorney General. There was also reference to observations by the Director of Public Prosecutions leading to the decision to issue an ex officio indictment. The media recorded expressions of opinion as to the desirability of altering the law concerning the age of criminal responsibility, although not, I observe so as to reduce it to the age of the accused at the time of the drowning of the deceased;

(iv) the video material took the form of reporting on the outcome of the proceedings before the magistrate and there was then an interview with the grandmother of the deceased that dealt with her distress at the decision of the magistrate, and her perception that the accused should be punished.

(v) The material tendered also dealt with the grandmother's assertions that the deceased had been subjected to bullying treatment by the accused prior to the date on which the deceased met his death.

7 Mr Zahra submitted that the combination of the above features of the media material rendered this a most unusual case, and distinguished it from the outcome of stay applications in those authorities to which I shall shortly refer. The effect of all this material, Mr Zahra submitted, is such that it would prevent the accused having a fair trial at any time and, alternatively, that it would have the effect of preventing the accused from having a fair trial now or in the immediate future. Hence the application was put forward in the alternative, that is to say as one seeking a permanent stay of proceedings and, alternatively, as one seeking an adjournment until the adverse effect of the publicity has settled down.

8 There can be no question but that a person charged with a criminal offence is entitled to a fair trial by a tribunal which is both independent and impartial: see R v Yuill (1993) 69 A Crim R 450 at 452. In each case where an application is made for a stay of proceedings because of adverse publicity, there is a need for the court to make a judgment on the particular facts before it: again see Yuill at 454.

9 Indeed, in Yuill Kirby A-CJ, as he then was, expressed the considerations which I must heed in the following passage of his judgment at pp 452-454:

"1. Every person is entitled to a fair trial according to law by an independent and impartial tribunal. This is in fact a basic human right. It is recognised as such in the International Covenant on Civil and Political Rights, Art 14.1. It is a basic right which is also recognised and enforced by the common law in Australia: see Dietrich [1992] HCA 57; (1992) 177 CLR 292 at 299-300; [1992] HCA 57; 64 ACrimR 176 at 178-179.

2. Another basic right, in a society such as ours, is that of freedom of expression and to receive information and ideas orally, in writing, in print and other media. This is also referred to in the International Covenant, Art 19.2. It too is reflected in the law of this country: see, eg, Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106 at 140. The right of free expression, constitutional rights apart, may be subject to restrictions, as provided by law. In this jurisdiction, the restrictions are provided in the form of restrictions in the nature of law of contempt and restrictions designed to otherwise ensure a fair trial for persons accused of serious crimes.

3. Against the background of the right to receive information and the realities of the operations of the modern media of communication of information, it is inevitable that there will sometimes be pre-trial publicity of cases which are to come before courts, including cases involving criminal trials. The law imposes limitations, as I have said. Sometimes those limitations can be quite drastic as recent decisions of the High Court and this Court in relation to pre-trial publicity involving contempt of court demonstrate: see, eg, Hinch v A-G (Vic) (No 2) [1987] HCA 56; (1987) 164 CLR 15 at 27; A-G (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368. But just as courts are obliged in the real world to accept that certain delays in the hearing of cases are inescapable, they have frequently said that they must accept a certain amount of publicity of matters of public interest: cf Bell v DPP (Tas) [1985] AC 937 at 953. That is the nature of our society.

4. The test of fairness which governs an application such as the present involves balancing the interests of the accused and of society in the fair trial of allegations of criminal offences and the interests of society to bring to trial, without delay, persons accused of such offences. The public has a high interest in the timely disposition of charges of serious offences and in the conviction of those who are found guilty of crime: see, eg, Carver v A-G (NSW) (1987) 29 A Crim R 24 at 30.

5. Given the nature of the modern media as an attribute of a society such as ours, it is inevitable that there will be publicity of facts and opinions which will sometimes come to the attention of potential jurors in a pending criminal trial. The law does not ignore this possibility. It does not necessarily disqualify the jurors concerned. Nor does it necessarily require the adjournment of a hearing of a trial to avoid the risk of the contamination of the jury: see Murphy [1989] HCA 28; (1989) 167 CLR 94 at 99; [1989] HCA 28; 40 A Crim R 361 at 364-365. To require, in every case, a stay or adjournment would effectively destroy the jury system which is such a vital feature of the administration of justice and especially of criminal justice: cf Hubbert (1975) 29 CCC (2d) 279 at 291.

6. Courts will assume that jurors, properly instructed, will accept and conform to the direction of the trial judge to decide the case solely on the evidence placed before them in the court: see Demirok [1977] HCA 21; (1977) 137 CLR 20 at 22. There is an increasing body of judicial opinion, lately expressed, to the effect that whatever pre-trial publicity exists, jurors, when they take on the solemn responsibility of the performance of their duties in the courtroom, differentiate between gossip, rumour, news and opinion which they hear before the case and the evidence which they hear in the court in the trial for which they are empanelled. Judge Herron made observations in this case which indicate that such is his conviction and experience. His Honour's expression of opinion parallels that of many other judges.

7. Of course a question still remains in each case whether the intensity, proximity and nature of the media coverage of the particular accused or the particular circumstances or the particular crime is such as to occasion the risk of unfairness to the accused so as to prejudice the accused's right to a fair trial either for a time after the publicity or ever: see Glennon [1992] HCA 16; (1992) 173 CLR 592; 60 A Crim R 18. A judgment is called upon in each case having regard to the particular facts which are proved. So much was said in Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 60; [1989] HCA 46; 41 A Crim R 307 at 334. It is pointed out that, in this case, the publicity which is relied upon for the adjournment or stay is considerably less than that which has occurred in recent years in respect of other criminal trials allowed to proceed. Reference was made to Murphy. Reference was also made to the judgment of Seaman J in Connell, Lucas and Carter (No 3) (1993) 8 WAR 542 and to Lewis (1992) 63 A Crim R 18 at 41..."

10 Then in R v Glennon [1992] HCA 16; (1992) 173 CLR 592 Mason CJ and Toohey J, in their joint judgment said:

"...a permanent stay will only be ordered in an extreme case (Jago (1989) 168 CLR at 34) and there must be a fundamental defect `of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences' (Barton (1980) 147 CLR at 111, per Wilson J)."

11 See also R v Bell (unreported, NSWCCA, 8 October 1998) and R v Milat (unreported, NSWCCA, 26 February 1998).

12 As I pointed out to Mr Zahra in the course of his thorough submissions, my own experience both at the Bar and on the Bench has convinced me that juries can generally be expected to act conscientiously and to heed directions given by the trial judge as to how they should go about their task as jurors. It is not to be assumed that even if a juror or jurors read and remembered any of the material which has been placed before this Court in support of the accused's application, that such juror or jurors would ignore directions given in the course of the trial that the jury should determine this case only upon the evidence placed before it at the trial and in accordance with principles upon which it is directed by the trial judge. The dicta of Kirby A-CJ above cited are very much in point here.

13 It is only in an extreme case that a permanent stay of criminal proceedings would be ordered: see R v Glennon (supra), and having reflected upon the material that has prompted the present application, I am not persuaded that the circumstances render this an extreme case.

14 The further question arises however as to whether the circumstances warrant some postponement of the trial beyond the present time. In my opinion they do not.

15 The publications the subject of evidence corresponded generally in point of time with the committal hearing. The earliest publication appears to have been on 4 September 1998 when the Daily Telegraph published an article that the accused was to be charged with manslaughter, but then the articles find their setting in the period from the end of January 1999 when evidence was given in the committal proceedings up to the point of time when the decision to proceed by way of ex officio indictment was reported on 5 May 1999. It follows that a period in excess of six months has now elapsed since the last publication to which the Court's attention has been directed. It seems to me that in the interests of justice it is appropriate that the trial proceed now and that no postponement is warranted.

16 I am confident, allowing for the possibility that the jurors who will be empanelled to try this case read and saw the material to which my attention has been drawn, that the jury will try this case consistently with their oaths or affirmations, heeding and conforming to the directions that will be given that the matter is to be determined solely on the evidence given at the trial and in accordance with the relevant directions as to legal principles.

17 I conclude therefore, having considered the various publications in the light of the relevant principles, that the application for a permanent stay of proceedings, or indeed any stay of proceedings, should be refused, and I make an order accordingly.

**********

LAST UPDATED: 17/11/1999