‘Extraordinary turn of events’

Press, 11 September 1985, Page 4

‘Extraordinary turn of events’

A man who served eight months of a 15-month prison sentence for three motel burglaries has now been freed of the charges, after an unusual series of events which arose during and after his trial and conviction. The defendant, Donald Cameron Forrester, aged 29, was yesterday granted a discharge on the three charges under provisions of section 347 of the Crimes Act, by Judge Sheehan. This course had been sought by defence counsel, Miss E. H. B. Thompson. Forrester, at his trial on these charges last November, was found guilty by a

jury of the charges of burglary of two Holiday Inn Motel units in Colombo Street, and of a unit at Belmont Motels, Bealey Avenue. Evidence was that police went to the scene of two burglaries and found stolen property, and then had a call to another motel two metres away — after an occupant awoke to find a man in the room, crouched down and with a torch or cigarette lighter. A police dog followed a trail back to the first motel. A police cordon was put around the area and Forrester was apprehended 400

metres away on the roof of a shed on private property. During this trial a juror fouhd a stolen cigarette lighter in the pocket of a jacket which was an exhibit. When searched after his apprehension no torch or cigarette lighter was found on Forrester. Upon the jury’s verdicts of guilty, Judge Pain sentenced Forrester to imprisonment for 15 months. In a subsequent appeal to the Court of Appeal the burglary convictions and sentence were quashed and a new trial ordered. The Court of Appeal’s judgment in June ruled that the trial judge had misdirected, the jury on the matter ' of the cigarette lighter. The Court of Appeal held that it was satisfied that an irregularity had occurred and that the circumstances were such that the verdict could not stand. The jury itself had discovered new material which was highly relevant to the issue before it and in circumstances in which it was difficult if not impossible, to overcome the risk of prejudice to the defendant.

There was no evidence given in the courtroom as to whose lighter it was, where and how it was discovered in the jacket, and why it had not been discovered earlier if it had been there since the night of the burglaries months earlier. It was obvious that the juror who made the discovery could not be called to give evidence and be cross-examined, and neither the defendant nor the Crown could have been given any adequate opportunity to deal by way of evidence with this extraordinary turn of events. Clearly it would be unsafe to allow the verdict to stand. It was impossible to say that the discovery of the lighter would have had no effect on the minds of the jurors, the Court of Appeal commented, in quashing the convictions and sentence. A month before the Court of Appeal’s decision a police constable who had been involved in Forrester’s apprehension was killed in a road accident. Another prosecution witness, an occupant of a motel unit which was burgled, is overseas until the end of the year.

The police applied to the Court to have the evidence of these two witnesses, taken at the preliminary hearing of the burglary charges before the trial took place, admitted for the second scheduled trial — and therefore not subject to cross-examination. This course was successfully opposed by Miss Thompson. Then, on August 29, Miss Thompson sought a discharge under provisions of section 347. She argued that because two principal witnesses could not give evidence there would be an insufficient case on which a jury in a second trial could reach findings of guilt. Upholding the defence ap-

plication in his decision, given yesterday, Judge Sheehan said that since the original trial, two important Crown witnesses were now unable to give evidence. The Crown had been unsuccessful in an application to have their earlier evidence read at a new trial. The Judge said he was satisfied that on the remainder of the evidence that would be available, it was unlikely that a jury, properly directed, would convict the defendant; and that it would be wrong for such a jury to do so. He then granted the application for a discharge and directed that Forrester not be arraigned on the burglary charges.