Court of Appeal (Qld)|2003-02-28|Before: McMurdo P, Davies and Jerrard JJASeparate reasons, for judgment of each member of the Court, each concurring as to the orders made
McMurdo P, Davies and Jerrard JJASeparate reasons, for judgment of each member of the Court, each concurring as to the orders made
Catchwords
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –
ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS
– STAY
OF PROCEEDINGS – PRE-TRIAL PUBLICITY – where publicity prejudicial
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS– STAYOF PROCEEDINGS – PRE-TRIAL PUBLICITY – where publicity prejudicialto the appellant was published in thethree days prior to the appellant beingcharged – where trial did not take place until 20 months after the last ofthe prejudicialpublicity was published in the media – where much of thispublicity was available on the internet after the charges were laid–where appellant submits that the jury would have been able to access theinternet material – whether learned trialjudge erred in refusing to granta permanent stay of the indictmentCRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE– GENERALLY– where appellant submits that there was a substantial risk thatprejudicial pre-trial publicity precluded
him from a fair trial – where
learned trial judge gave firm directions to the jury at the commencement of the
trial to ignore
any related publicity and decide on the evidence alone –
where directions repeated in summing up – where no complaint
made of
directions – whether pre-trial publicity resulted in a miscarriage of
justice CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER
CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE
–
PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – where trial was held in a
large, ceremonial court instead of a regular
criminal court – where
appellant submits this led to a “show” trial and pressured the jury
to deliver guilty verdicts
– where appellant applied at pre-trial hearing
for the use of a regular criminal court – where prosecution supported
the
application – where learned trial judge ascertained that the ceremonial
court would function satisfactorily for the trial
– whether use of the
ceremonial court amounted to a miscarriage of justice when combined with the
pre-trial publicityCRIMINAL LAW – EVIDENCE – CONFESSIONS AND
CONFESSIONAL STATEMENTS – PARTICULAR CASES – where confession passed
common law tests of voluntariness and
reliability – where appellant
submits that confession was obtained in circumstances which were unacceptable
with respect to
prevailing community standards – whether learned trial
judge should have excluded the confession on a discretionary basisCRIMINAL
LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND
NEW TRIAL – APPEAL AGAINST SENTENCE
– APPEAL BY ATTORNEY-GENERAL OR
OTHER CROWN LAW OFFICER – APPPLICATIONS TO INCREASE SENTENCE –
OFFENCES AGAINST
THE PERSON – where Attorney-General appeals against the
minimum term to be served before appellant can be considered for parole
–
where Attorney-General argues for this term to be increased because the
accused’s act resulted in the death of 15 people
not only the death of the
two with which he was charged – where learned trial judge did not sentence
the accused on the basis
that he had committed 15 murders – where accused
was sentenced on the basis that the deaths were not intentional but caused
by
his intentional arson – whether learned trial judge erred in sentencing
the accused
Criminal Code (Qld), s 305, s 669ACriminal Law Amendment Act
1894 (Qld), s 10Jury Act 1995 (Qld), s 69APenalties and
Sentences Act 1992 (Qld), s 189Police Powers and Responsibilities Act
2000 (Qld), s 198, s 234
Bunning v Cross (1978) 141 CLR 55, not followedMacPherson v
The Queen [1981] HCA 46
(1981) 147 CLR 512, consideredMcDermott v The King
(1948) 76 CLR 501, consideredR v D [1995] QCA 329
[1996] 1 Qd R 363,
distinguishedR v Glennon [1992] HCA 16
(1992) 173 CLR 592, consideredR v
Lewis [1994] 1 Qd R 613, consideredR v McLachlan [2000] VSC 215
24 May 2000, distinguishedR v Murphy [1989] HCA 28
(1989) 167 CLR 94,
consideredR v Swaffield
Pavic v The Queen (1998) 192 CLR
159Ratten v R (1974) 131 CLR 510, considered
Judgment (20 paragraphs)
[1]
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - PRE-TRIAL PUBLICITY - where publicity prejudicial to the appellant was published in the three days prior to the appellant being charged - where trial did not take place until 20 months after the last of the prejudicial publicity was published in the media - where much of this publicity was available on the internet after the charges were laid - where appellant submits that the jury would have been able to access the internet material - whether learned trial judge erred in refusing to grant a permanent stay of the indictment CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERALLY - where appellant submits that there was a substantial risk that prejudicial pre-trial publicity precluded him from a fair trial - where learned trial judge gave firm directions to the jury at the commencement of the trial to ignore any related publicity and decide on the evidence alone - where directions repeated in summing up - where no complaint made of directions - whether pre-trial publicity resulted in a miscarriage of justice
[2]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE - where trial was held in a large, ceremonial court instead of a regular criminal court - where appellant submits this led to a "show" trial and pressured the jury to deliver guilty verdicts - where appellant applied at pre-trial hearing for the use of a regular criminal court - where prosecution supported the application - where learned trial judge ascertained that the ceremonial court would function satisfactorily for the trial - whether use of the ceremonial court amounted to a miscarriage of justice when combined with the pre-trial publicity
[3]
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - VOLUNTARY STATEMENTS - VOLUNTARINESS - PARTICULAR CASES - where appellant confessed to police officers that he started the hostel fire - where appellant made this admission immediately after he had been shot at by police officers - where appellant submits that confession was not voluntary - where Crown discharged its obligation to show the confession was not induced - where learned trial judge concluded that the confession was voluntary as it was in the nature of a dying declaration - whether confession wrongly admitted
[4]
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - DISCRETION TO EXCLUDE CONFESSIONAL STATEMENTS - PARTICULAR CASES - where confession passed common law tests of voluntariness and reliability - where appellant submits that confession was obtained in circumstances which were unacceptable with respect to prevailing community standards - whether learned trial judge should have excluded the confession on a discretionary basis
[5]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPPLICATIONS TO INCREASE SENTENCE - OFFENCES AGAINST THE PERSON - where Attorney-General appeals against the minimum term to be served before appellant can be considered for parole - where Attorney-General argues for this term to be increased because the accused's act resulted in the death of 15 people not only the death of the two with which he was charged - where learned trial judge did not sentence the accused on the basis that he had committed 15 murders - where accused was sentenced on the basis that the deaths were not intentional but caused by his intentional arson - whether learned trial judge erred in sentencing the accused