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[1998] NSWSC 570
Supreme Court of NSW
1998-10-08
Spigelman CJ, Abadee J, Ireland J, Mason CJ, Toohey J
Original judgment source is linked above.
For the reasons I have given, no error of that character has been identified in either of his Honour's judgments.
Accordingly, the order of the court is that the appeal will be dismissed.
Regina
Bell Matter No Cca 60582/98 [1998] NSWSC 570
1. The kind of publicity in question is capable of having an impact on potential jurors. However, there are mechanisms by which such impact can be ameliorated. This was not the extreme case in which, by reason of the cumulative effect of the publicity, the accused would be denied a fair trial. See Glennon [1992] HCA 16; (1992) 173 CLR 592 at 605-606; Ivan Milat NSWCCA 26 February 1998. There was no error in the exercise of discretion by his Honour. The experience of trial judges is that jurors approach their task in accordance with the oath they take, that they listen to directions they are given and implement them: Glennon [1992] HCA 16; (1991-92) 173 CLR 592 at 603 per Mason CJ and Toohey J_; Hinch v Attorney-General (Vic)_ (No 2) [1987] HCA 56; (1987-88) 164 CLR 15 at 74, per Toohey J; Murphy [1989] HCA 28; (1988-89) 167 CLR 94 at 99, per Mason CJ and Toohey J; Yuill (1993) 69 ACrimR 450 at 453-454; R v VPH NSWCCA 4 March 1994. The trial judge correctly applied these principles.
As Toohey J observed in Hinch v Attorney-General (Vic) (No 2) [1987] HCA 56; (1987-88) 164 CLR 15 @ 74:
Similar issues arose in the context of the trial involving the murder of Anita Cobby in the case of Murphy v The Queen [1989] HCA 28; (1988-89) 167 CLR 94, where in the joint judgment of Mason CJ and Toohey J, their Honours referred to the ability of a court to take various steps to overcome the effects of media publicity in what they describe as "sensational" cases and went on to say @ 99:
"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 @ 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."
(1992) 173 CLR 592
(1977) 137 CLR 20