Attorney-General for New South Wales v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368
83 In Attorney-General for New South Wales v TCN Channel Nine Pty Ltd the question in issue was whether the respondent was guilty of contempt of court. The contempt related to the broadcast of a television program likely to interfere with the administration of justice in connection with a murder trial. For the purposes of determining that question, the Court was concerned with the question of when the proceedings in a court were "pending". The Court (Gleeson CJ, Kirby P and Priestley JA) referred to James v Robinson [1963] HCA 32; (1963) 109 CLR 593 where Windeyer J stated, at 614-615:
"The word 'pending', in this context, is used in its ordinary legal sense as meaning that the trial or proceedings have been commenced and not completed. The rule applies equally to civil and to criminal proceedings. Once a matter becomes sub judice , and while it remains sub judice , comment that could influence judgment is unlawful. That is the basis of the rule. Lord Parker CJ recently stated it as follows: '… it is clear on the authorities that proceedings are pending in this sense from the time that a person is charged, even though he has not been committed for trial … Once a person is under arrest a court has become seised of the case, because the arrested man must be taken before a magistrate."
84 These cases represent a long line of authority that a criminal proceeding commences at the point of arrest, the issue of a warrant or the issue of a summons. However, whether or not that line of authority applies depends upon the issue in a given case and, in particular, must yield to any relevant statutory provision that applies to the case at hand.
85 It is necessary at this point to return to the Evidence Act transitional provision, cl 17 and the Criminal Procedure Act, s 130. The Crown's position is that, pursuant to s 130, the indictment is the originating process in criminal proceedings in the District Court and the Supreme Court and the arraignment marks the commencement of the trial: see cases referred to at [68] above. Accordingly, on the Crown's argument, when the Evidence Act transitional provision refers to "proceedings, the hearing of which began before the commencement of the amendment", it is referring to the hearing of the trial and not to some anterior point in time which marks the commencement of the criminal process.
86 There is no doubt that the presentment of the indictment and arraignment of the accused person marks the commencement of the trial. The question for consideration, however, is whether the Evidence Act transitional provision refers to particular proceedings, such as committal or trial, or bail proceedings, or whether it is directed to the initiation of proceedings. Put another way, the question is whether the reference to proceedings in cl 17 should be read so as to apply to the particular proceeding, the hearing of which has begun, in this case, once the indictment has been presented, or whether it applies to a proceeding from its initiation.
87 The matter appears to have first been considered by this Court in Pearson. In that case, the Court was concerned with the question whether a trial judge ought to have granted a stay of criminal proceedings in circumstances where civil proceedings had also been instituted. The trial judge held that a person who had possession of documents subject to legal professional privilege, could not be compelled to produce the documents on a subpoena issued on behalf of an accused person in criminal proceedings. However, the trial judge granted a conditional stay of the criminal proceedings. The Crown appealed against that order and the accused appealed against the refusal by the trial judge to grant a permanent stay, on the basis that he was not able to have a fair trial in the absence of having access to the subpoenaed documents. In the meantime, the Evidence Act came into force. Gleeson CJ (Smart and Sully JJ agreeing) stated:
"As to whether the Evidence Act 1995 applies, there is no agreement between counsel. However, the savings and transitional provisions which are relevant produce the consequence that the Evidence Act 1995 applies in relation to proceedings, the hearing of which began before 1 September 1995. In the case of a criminal trial upon indictment, the hearing of the proceedings relevantly begins at the time of arraignment. If, for example, this Court heard today an appeal against the conviction of a person, allowed the appeal, and ordered a new trial, then as at present advised I see no reason why the provisions of the Evidence Act 1995 would not apply to the new trial."
88 There are other authorities which support that approach. In Janceski Howie J stated, at [219], that:
"… the presentation of an indictment and the arraignment of the accused before the jury panel is a step in the proceedings that marks the commencement of the trial."
89 In Pollock Simpson J (Howie and Rothman JJ agreeing) commented upon the transitional provisions to the Evidence (Consequential and other Provisions) Act 1995 which contained, in Sch 2, cl 2, a provision in the same terms as the Evidence Act transitional provision under consideration here. Her Honour noted that the transitional provision in the 1995 amending legislation raised the question as to when a criminal proceeding begins. Her Honour referred to the comments of Gleeson CJ in Pearson that a criminal trial begins upon arraignment. Her Honour considered that on that view, as the applicant in Pollock would have to be re-arraigned, the Evidence Act would apply to any new trial. Her Honour found it unnecessary to finally determine that matter.
90 In Taylor, the question arose whether the Crimes Amendment (Self-Defence) Act 2001 applied to the trial of the respondent. The amending legislation effected significant changes to the law of self-defence which was favourable to an accused person on trial for the offence of murder. The transitional provision in the amending legislation provided, relevantly:
"(2) This Division does not apply to an offence if proceedings for the offence (other than committal proceedings) were instituted before the commencement of this Division."
91 The issue arose in Taylor because the Crown had presented three indictments against the accused. The first indictment was presented and the accused arraigned prior to the commencement of the new provision. However, the trial did not proceed on that day and was stood over for some months. It was during this intervening period that the legislation was enacted. Subsequently, a new indictment was presented, in exactly the same terms as the first, but signed by a different Crown Prosecutor and dated on the same day as it was presented. Again, that trial did not proceed on that day. The following day, a fresh indictment dated that day was presented.
92 It was in the accused's interests to bring himself within the new legislation. He argued, therefore, that the proceedings for the murder with which he had been charged had not commenced until the time the last indictment was presented. If that was correct, the statutory self-defence provision applied. This argument was rejected both by the trial judge and on appeal, on the basis that the indictment upon which the accused was first arraigned had not been brought to a conclusion in any of the recognised ways that proceedings on an indictment may be brought to a conclusion. However, in the course of considering that issue, Bell J (Spigelman CJ and Miles AJ agreeing), observed, at [150], that "the indictment is the originating process in criminal proceedings" in the District and Supreme Courts. Bell J noted that the Criminal Procedure Act, s 130 confers jurisdiction on the Court with respect to the conduct of proceedings on indictment. Her Honour concluded, at [154], that the transitional provision was:
"… directed to the institution of "proceedings for the offence" (other than committal proceedings). The institution and conduct of proceedings on indictment … is governed by the provisions of the Criminal Procedure Act and the common law to the extent that the latter is not altered by the former."
93 In those circumstances, her Honour concluded that the proceedings for the offence of murder in the case at hand were instituted on the date on which the indictment was first presented and the accused arraigned on that indictment.
94 In Adamcik, the appellant was convicted of attempting to obtain a financial benefit by making a false statement. Prior to the empanelling of the jury, the trial judge heard an interlocutory application in respect of the admissibility of certain evidence. Between the determination of the interlocutory hearing and the empanelling of the jury, the Evidence Act was introduced. At the trial, the appellant sought to adduce evidence going to the credit of a principal witness. Such evidence was inadmissible under the pre-Evidence Act law. A question arose whether the Act had made the evidence admissible. The trial judge held it had not.
95 On appeal, Barr J (McInerney J agreeing, Mahoney ACJ deciding the appeal on a different point) held that the Evidence Act had no application to the trial. His Honour referred to the terms of the transitional provision and concluded, at 18, that:
"… the hearing of this proceeding began when his Honour commenced to consider the admissibility of evidence on the voir dire. The indictment was presented then - see District Court Rules Pt 53, r 11(1): see also Newell v The King (1936) 55 CLR 707; R v Nicolaidis (1994) 33 NSWLR 364."
96 The appellant contended that Adamcik did not necessarily support the Crown's position that s 165B applies to this case. In the first place, the appellant pointed out that it was not necessary to consider whether the proceedings had commenced at some anterior time, as discussed in Hull, as it was sufficient for the decision that the indictment had been presented prior to the commencement of the Evidence Act. Accordingly, the Court did not have to consider what would have been the position if the indictment had been presented after the commencement of the Evidence Act.
97 I am not persuaded by this argument. The point in issue in Adamcik was whether the hearing of the proceedings had commenced before or after the commencement of the Act. If the appellant's submission on this issue is correct, it would have been a foregone conclusion that the proceedings had commenced before the commencement of the Evidence Act. It is apparent from Barr J's reasoning that the Evidence Act operated on the hearing of proceedings, that is, the hearing of the trial.
98 Secondly, the appellant submitted that all that Adamcik established was that where an indictment had been presented prior to the commencement of the Evidence Act (in that case for the purposes of a voir dire), the subsequent presentation of the indictment before the jury does not commence the hearing of the proceedings. This argument is of particular relevance in the present case, as an indictment was presented pursuant to the District Court Rules 1973, Pt 53, r 10D, in November 2008, prior to the introduction of s 165B. However, it is implicit, or at least can be presumed, that the accused in Adamcik had been arraigned prior to the voir dire. There would have been no purpose in having a voir dire in relation to the admissibility of evidence at trial for a person who had not entered a plea, notwithstanding that the accused person would have been arraigned again later, prior to the empanelling of the jury. The purpose of the earlier arraignment, as Gleeson CJ explained in Nicolaidis, was to give the court jurisdiction to hear the preliminary evidentiary and other arguments.
99 I am not persuaded that Adamcik stands for the proposition for which the appellant principally contended, that is, that the subsequent presentation of the indictment before the jury and, I infer, the arraignment at that time does not mark the commencement of the proceedings. Even though the purposes of pre-trial processes such as occurred in Adamcik is to assist in the efficient running of the trial, as Mahoney ACJ pointed out in his judgment, evidentiary rulings given at the pre-trial stage are preliminary only. There may be circumstances which require those rulings to be revisited in the hearing proper.
100 However, I accept that the position is not clear and it may be that the hearing of the trial commences upon the first arraignment after the indictment has been presented. Notwithstanding that there may be some uncertainty on this point, it does not affect the position in this case, as the appellant was not arraigned prior to 1 January 2009. Accordingly, it is not necessary to finally determine whether a trial, that is, a criminal proceeding on indictment, commences at the time of the first arraignment, regardless of whether that was in the presence of the jury to be empanelled. In the appellant's case, the hearing of his trial commenced on 23 March 2009, after the commencement of s 165B.
101 Notwithstanding the perhaps unresolved question whether a trial commences on the first arraignment, the indictment having been presented at that time, or when the indictment is presented and the accused person arraigned in front of the jury, as Howie J held in Jancevski, these authorities demonstrate that when legislation, such as the Evidence Act transitional provision cl 17, refers to "proceedings the hearing of which began before the commencement of the [provision or Act]", the intended reference is to the hearing of the particular proceeding such as the trial itself.
102 The Criminal Procedure Act, Ch 3, Pt 3, Div 2 contains those provisions which govern the commencement of proceedings on indictment. By contrast, the Evidence Act is concerned with the evidence which is to be adduced at a particular hearing. When the Evidence Act transitional provision refers to a proceeding the hearing of which has commenced, I am of the opinion that, on its proper construction, it is referring to the hearing of a particular proceeding, in this case, a trial on indictment.