R v Heffernan [2002] NTSC 32

[3] The alleged offence is said to have been committed to the south of Alice Springs, and in the normal course the trial would be held in that town.

[4] The application is supported by the applicant's solicitor's affidavit and accompanying material upon the ground that reports of the committal proceedings in the Centralian Advocate, a local newspaper in December 2001, contained inaccuracies which would prejudice the fair trial of the accused.

[5] The publications complained of were made during the course of the committal hearings. It appears from sundry material that the deceased was a well-known and popular man who lived in the Alice Springs area with his family. That fact, together with the circumstances of the alleged killing, it was suggested, would have heightened public interest in the committal proceedings, and in particular the reports contained in the newspaper.

[6] The first report, published on 4 December 2001, under front page banner headlines "Accused killer's blood found on car: claim" contained an assertion that the court heard how an Aboriginal tracker had confirmed to investigating police that one of the footprints she had found was that of the accused. There has been no evidence to support that assertion. Instead, the evidence indicates that the Aboriginal tracker identified the shoe print as belonging to the offender, but there appears to be nothing on the evidence to connect that footprint with the accused. To the same effect was another passage in the report attributing the identification of the footprint with that of the accused by two other Aboriginal trackers. That was also false.

[7] Contrary to the headline, the blood located inside and outside of the motor vehicle connected with the alleged crime was said to be victim's, not the accused's.

[8] Counsel for the prosecution in opening to the Court of Summary Jurisdiction asserted that the deceased had been, "telling his friends and bar staff that he had a sexual relationship with Heffernan" and that Heffernan was "very displeased with what he was saying". The newspaper report accurately reflected what had fallen from the prosecutor, but there was no evidence given at committal to support what had been said.

[9] In summary, the publications referred to put the accused at the scene of the alleged crime and attributed a motive for it.

[10] There were some less conspicuous reports, but containing similar inaccuracies in the NT News published at about the same time.

[11] Although I have received conflicting information on the point, it appears that the jury roll for Alice Springs is of the order of 13,000 people and that for Darwin, 45,000 people. Given the nature of the charge, it is probable that two reserve jurors in addition to the twelve would be empanelled. The Centralian Advocate is available widely throughout Alice Springs, as is the NT News, which latter publication is also circulated throughout Darwin. It could not be doubted that each of them are read by an audience including potential jurors in each place. However, it is the applicant's case that the degree of prejudice suffered by him is significantly greater in Alice Springs.

[12] The applicant contends that on that material a fair and unprejudiced trial can not be had. He must make out that case and I am satisfied that if he did so then good cause would have been shown.

[13] The publication of committal proceedings in respect of many cases occurs in towns such as Alice Springs, especially where the circumstances involve well known people, either victims or accused. It is common place and no doubt there are occasions when inaccuracies creep into the reports some, such as demonstrated here, potentially to the prejudice of the accused, but a wholly accurate report of evidence can be prejudicial also. As de Jersey J put it in the case of Wendy Joan Lange (1987) 25 A Crim 139 a violent crime, as this appears to have been, will inevitably stir up a lot of local interest, conjecture as to who might have been responsible, and considerable general rumour, but that does not mean that an impartial jury will not be found.

[14] The Court of Criminal Appeal of Western Australia in Penny v The Queen BC 8900845 referred to the views of the Ontario Court of Appeal in R v Hubbard (1957) 29 CCC 279 at 291:

"In this era of rapid dissemination of news by the various media, it would be naive to think that in the case of a crime involving considerable notoriety, it would be possible to select twelve jurors who had not heard anything about the case. Prior information about a case and even the holding of a tentative opinion about it does not make partial a jury sworn to render a true verdict to the evidence."

[15] Their Honours also referred to Murphy v The Queen [1989] HCA 28; (1989) 63 ALJR 422 from which I draw the following extract:

"It is fundamental that, for an accused to have a fair trial, the jury should reach its verdict by reference only to the evidence admitted at trial and not by reference to facts or alleged facts gathered from the media or some outside source. However, the might of media publicity in "sensational" cases makes such a pristine approach virtually impossible. Recognising this, the courts have viewed various remedies such as adjournment, change of venue, severance of the trial of one accused from that of the others, express directions to the jury to exclude from their minds anything they may have heard outside the courtroom and the machinery of challenge for cause. It may be that in a particular case none of these remedies would be fully effective. But it is misleading to think that, because a juror has heard something of the circumstances giving rise to the trial, the accused has lost the opportunity of an indifferent jury."

[16] There is no evidence in this case that the publications have influenced any member of the public in Alice Springs or the community generally. Evidence going to that issue has been accepted, for example see R v Knott (1974) Qd R 58 and Lange (1986) 25 A Crim R 139. Here the Court is asked to infer the adverse influence from the fact of the publications complained of. That was what Muirhead J did in The Queen v Pepperill (1981) 54 FLR 327 in which in the publication in question was not only inaccurate, but "some reports can only be described as mischievous and inflammatory". This is not such a case. For other Northern Territory cases see R v Anderson (1974) 5 ALR 268, in which is Honour commented upon the absence of evidence to support the applicant's concerns, and L (1989) 43 A Crim R 53, an application based upon the accused's perception of his own notoriety.

[17] Although the applicant must persuade the Court that the order sought be made, with respect, I agree with Debelle J in Webb (1992) 64 A Crim R 39, where the leading authorities in this field are extensively reviewed. Notwithstanding the somewhat higher standards of proof which have been applied in some other cases, his Honour's formulation of the test is that the Court must be satisfied that there are grounds on which it is reasonably satisfied that there is a reasonable possibility that the applicant will not have a fair and impartial trial. The discretion, though wide, will not be lightly exercised.

[18] Under present conditions it is unlikely that the trial of the accused could be held in either Alice Springs or Darwin until the early part of 2003 at the earliest. I consider that such impression as the reports of late 2001 may have had upon potential jurors would probably have been forgotten in the intervening period. It is customary to excuse a person from serving on a jury in a particular trial upon his or her informing the Court that he or she could not bring a fair and open mind to the task. Further, the Court should not consider that jurors will disregard instructions that they be true to their oaths or affirmations and only try the case upon the evidence.

[19] Having considered the interests of the applicant, which I find do not warrant the order sought, I should add that I have also considered the evidence put forward by the Crown as to the significant additional cost which would be incurred in having the trial conducted in Darwin and inconvenience to witnesses. It is not possible to quantify either the cost differential or the additional inconvenience, but by far the majority of witnesses would come from areas closer to Alice Springs than Darwin. The interests of justice are the overriding consideration and I have not permitted the cost expense and inconvenience involved in a change of venue to assume importance which is not deserved.