R v Goldman
[2004] VSC 167
•9 March 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1504 of 2003
| THE QUEEN |
| v |
| MICHAEL GOLDMAN |
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JUDGE: | Redlich J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 March 2004 to 24 March 2004 | |
DATE OF RULING: | 9 March 2004 | |
CASE MAY BE CITED AS: | R v Goldman | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 167 | |
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Ruling No. 3
Application to prohibit publication of trial – Section 18 Supreme Court Act 1986 – Evidence in present trial to be adduced in subsequent trial - Whether accused's right to fair trial in the County Court prejudiced – Minimum of 12 months before County Court trial proceeding
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B. Kayser | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Accused | Mr P. Chadwick | Slades & Parsons |
HIS HONOUR:
The accused has made application that the court pursuant to s.18 Supreme Court Act 1986 prohibit the publication of the whole of the trial until the completion of a County Court trial involving the accused and other accused, who together face multiple counts of burglary and theft. The County Court trial has been placed in the Long Trials List and is to be the subject of a mention in April. No date for the trial has been fixed, but it is agreed between the parties that it will not commence until some time in 2005.
It does not appear to be disputed that the prosecution of the accused in the County Court rests upon the allegations made by Alexander Kudryavstev in his lengthy interviews with investigating police in which he explained his role and the role of each of the accused in various burglaries and thefts.
It was submitted on the accused's behalf that any potential juror selected to deliberate upon the accused's guilt in the County Court trial next year, will by the publicity, be tainted with a knowledge of the present trial. Jurors will be influenced by the circumstance that the accused had shot an informer. This it was submitted, will enhance Mr Kudryavstev's position in the eyes of the County Court jury and will disadvantage the accused. The jury will know Mr Kudryavstev to have been the victim of a shooting and will know the outcome of this trial.
Mr Chadwick submitted that the circumstances of the present trial are likely to remain in potential jurors' memories because there are sensational features of this trial which makes it unlikely that they will be forgotten. He submitted that evidence of a group described as the Russian Mafia and one to whom Nikolai Radev was in some way connected, he being a well-known notorious criminal whose murder last year has remained unsolved, are likely to remain in the jurors' memory. The surveillance squad who were following Mr Kudryavstev had been briefed to watch for a meeting between Nikolai Radev, the accused and Kudryavstev. Potential jurors are unlikely to forget that Mr Kudryavstev was wearing a recording device at the time that he was shot.
During the course of the police interviews Kudryavstev made several references to the fact that the accused had shot him. Counsel for the accused stated that it would be impossible for such references to be excised from Mr Kudryavstev's account. Mr Chadwick submitted that it would be inevitable having regard to the nature of the prosecution and defence case in the County Court that the shooting of Mr Kudryavstev by Mr Goldman would emerge, as would the nature of their alleged relationship.
The fact that the acts of the accused in the present trial are highly likely to be the subject of evidence before a jury in the County Court trial is a matter of significance to which I shall return.
The fact that a jury would have a knowledge of these circumstances at the outset of the trial would, it is said, cause prejudice to the accused notwithstanding that the jury will learn of these matters during the course of the trial. It was the sequence in which matters emerged in the County Court trial that would cause prejudice. As counsel for the accused put it, instead of Mr Kudryavstev's evidence being accompanied by the usual caution in relation to accomplices' evidence with directions concerning the need for corroboration, the jury "will start with the knowledge of the shooting and work backwards to realise what the shooting was all about". It was contended that the publicity of this trial would reverse the order in which the jury would consider the issues. It was said that this prejudice could not be cured by any judicial direction.
The defence has submitted that the accused will be further prejudiced in his County Court trial in the event that the accused is convicted and falls to be sentenced. The ensuing publicity will confirm that the accused had shot Mr Kudryavstev, that he had been found guilty of attempting to murder him and, as a consequence of the plea and sentence, that the accused had a criminal history.
The learned prosecutor made three submissions in opposition to the accused's application. He submitted that the County Court trial was a long way away and that I should view with caution the suggestion that potential jurors would be likely to remember features of the present trial. He further submitted that it should not be presumed that jurors in the County Court trial will be irresponsible and ignore judicial direction. Finally he submitted that the Crown case will not involve the use of any colourful terminology that would be likely to attract attention such as the use of the term "Mafia".
The legal representatives from The Herald and Weekly Times and The Age opposed the accused's application. The standing of the media to oppose an application seeking a suppression of legal proceedings is well established. Herald & Weekly Times Ltd v Medical Practitioners Board of Victoria[1] It was submitted that whilst the court has power to make the order sought it should only be exercised in very limited cases. Mr Leder who appeared on behalf of The Herald and Weekly Times relied upon a number of cases to which I shall refer in support of the submission that the present circumstances do not necessitate an order prohibiting publication.
[1](1999) 1 VR 267.
Mr Leder submitted that there is clear authority that a six-month period between the publicity and trial is sufficient to ensure that no prejudice flows from the fair and accurate reporting of an earlier proceeding concerning the accused. It was submitted that jurors recall far less than counsel fear and that if the time that has elapsed between the first and the second hearing is insufficient the trial Judge has the power to further adjourn the trial.
It was contended that as the basis for the application was not that the jury would find out about the shooting, but only when and how they would find out about it, any prejudice which did arise would be adequately dealt with by a direction from the trial Judge.
Mr Leder submitted that it would be wrong to speculate as to whether or not the accused might be convicted in the present trial and whether the fact of conviction, if known by a potential juror, could cause any prejudice to the accused where the accused admitted shooting Mr Kudryavstev.
It was further submitted on behalf of the media that to suppress publication of the present trial for more than a year constituted an application to permanently suppress as the case would then be "old news". It was contended that publicity about an attempt to murder someone who was a police informer is in the public interest of law enforcement as the public is entitled to know not only that a police informer was shot, but that a prosecution has taken place and that someone has been held to account for such conduct.
The question raised by this application is whether the fundamental common law rule that the administration of justice take place in open court should be departed from because its observance would frustrate the administration of justice for whose protection Parliament has modified the open justice rule by reserving to the court a power conferred in s.19(b) Supreme Court Act 1986. Statutory provisions which derogate from the open administration of justice are viewed as the exception to the rule and such statutes should be strictly and narrowly construed. Scott v Scott[2]; Raybos Australia Pty Ltd v Jones[3]; Re: Former Officer of ASIO[4] and Herald & Weekly Times Ltd v Magistrates' Court of Victoria & Ors.[5]
[2][1913] AC 417 at 445.
[3](1985) 2 NSWLR 47.
[4][1987] VR 875.
[5][1999] 2 VR 672 at 677.
An order under s.18 Supreme Court Act 1986 should not be made unless the court is of the opinion that it is necessary to do so. Teague J in R v Pomeroy[6] considered that the criterion of necessity, being an integral part of the exception to the open justice principle required that prohibition orders against publication be made only in wholly exceptional circumstances. No unnecessary restriction upon publicity of court proceedings should be permitted. L & A Services Pty Ltd v J & R(No. 2)[7]
[6][2002] VSC 178 at paragraph 10.
[7](1995) 2 Qd R 10.
It is unnecessary to traverse the extent of the common law rule that justice is administered in a court open to the public. This is not the occasion to revisit the values associated with public scrutiny of court hearings.[8] The exceptions to "open justice" are fully discussed by Kirby P in John Fairfax Group Pty Ltd v Local Court of New South Wales.[9] In Herald and Weekly Times v Medical Practitioners Board[10], Hedigan J after an extensive review of cases dealing with applications to suppress publication of court proceedings observed that the general principle of open justice and the right of public access to open courts gave way in only exceptional circumstances, one of those being where the administration of justice would be rendered impractical if a reporting of the proceedings was permitted.[11]
[8]Russell v Russell (1976) 134 CLR 495 at 520; David Syme & Co Ltd v General Motors-Holden’s Ltd (1984) 2 NSWLR 294; Moularas v Nankervis [1985] VR 369 at 377 and L & A Services Pty Ltd v J & R (No 2) supra Footnote 7.
[9](1991) 26 NSWLR 131 at 141-2.
[10]Supra Footnote 1
[11]Supra Footnote 1 at 293. See also S. R. D. v Australian Securities Commission (1994) 52 FCR 187 at 189.
The circumstances in which an order prohibiting publication might be made to secure the proper administration of justice were considered in the very recent decision of the Victorian Court of Appeal In the matter of an application by the Chief Commissioner of Police (Vic) for Leave to Appeal,[12] the Court recognising the need on occasions to make orders to preclude the publication of evidence because it would tend to place at risk the fair trial of the accused on the same or other charges.
[12][2004] VSCA 3R, at paragraphs 23-30 per Winneke P, Ormiston and Vincent JJA.
A trial Judge has a responsibility to conduct a trial so as to counter so far as is possible, the effect of pre-trial publicity prejudicial to an accused. Those responsibilities and the use of procedures to ensure a fair trial were examined by Crockett J in a passage referred to in the judgment of Brennan J in The Queen v Glennon.[13] Even where those protective mechanisms cannot guarantee perfect impartiality by a juror the accused will not be said to have had an unfair trial.
[13](1992) 173 CLR 592 at 615.
The possibility that a juror may learn of irrelevant and prejudicial information is always present in a criminal trial. While such a possibility is recognised by the law, it proceeds on the assumption that a jury, acting in accordance with instructions given to it by the trial Judge will nevertheless render a true verdict in accordance with the evidence. The Queen v Glennon[14] As the High Court had previously stated in Murphy v R:[15]
"Prior information about a case and even the holding of a tentative opinion about it, does not make partial a juror sworn to render a true verdict according to the evidence."[16]
To reason otherwise fails to give sufficient weight to the integrity of the system of trial by jury or the effect of instructions given by the trial Judge to the jury.
[14]Supra Footnote 13 at 603 per Mason CJ and Toohey J.
[15](1989) 167 CLR 94.
[16]Supra Footnote 15 at 99.
The fact that a juror may acquire knowledge during the trial of an accused's prior convictions, even for an offence of the same nature, may not be a sufficient basis for concluding that an accused did not have a fair trial or that there was a miscarriage of justice. The Queen v Glennon[17]
[17]Supra Footnote 13.
Circumstances where a juries' partiality engendered by publicity precludes a fair trial of an accused must be rare. In the judgment of the Court of Appeal given by Ormiston JA in R v Glennon[18] his Honour stated:
"It cannot be denied that one or more of the jurors who were called upon to try the applicant may have recalled some of the previous publicity relating to the applicant. But in that sense, the potential prejudice to the applicant was no different from many other criminal trials where prejudicial publicity, legitimately in the public domain, exists in respect of accused persons. Our criminal justice system is not so fragile that it cannot give a fair trial to those in respect of whom such publicity exists. The system relies upon its flexible procedures to ensure that the trial remains fair notwithstanding the existence of adverse publicity; namely proper empanelling procedures and, more importantly, the giving by the trial judge of full directions, with the authority of his or her office, instructing the jury that their past is an intellectual one, to be discharged free from emotion or prejudice, and only in accordance with the evidence legitimately before them, and not on the basis of extraneous material."[19]
[18](2001) VSCA 17.
[19]Supra Footnote 18 at paragraph 17.
After referring to a passage from the judgment of Brennan J in Jago v The District Court,[20] his Honour further observed:
"Where persons of dubious notoriety are brought to trial against a background of adverse publicity, there is a tendency to attribute too much frailty to our criminal justice system and to underestimate both the flexible mechanisms which it employs to avoid unfairness in the trial process and the robust common sense and sense of duty of those who are called upon to administer it. The system is designed to operate in a society which cherishes the competing rights of freedom of expression and the right of a person charged with serious offences to a fair trial."[21]
[20](1989) 168 CLR 23.
[21]Supra Footnote 18 at paragraph 67.
In the matter of an examination of John Friedrich pursuant to s.541 Companies (Victoria) Code 1981[22], Cummins J concluded that members of a jury who would sit on a trial within six months of the s.541 examination were unlikely to be prejudiced by media dissemination of evidence given at that examination. Referring to the qualities of a contemporary jury subject to the directions given by the trial Judge, His Honour considered it unlikely that a jury would be prejudiced or adversely affected by the publication of the examination. These reasons were upheld on appeal in Friedrich v The Herald & Weekly Times Ltd,[23] the Court of Appeal observing that if some element of prejudice existed at the time of the appellant's trial, which was not anticipated for 12 months after the examination, some further adjournment of that trial could take place. The Court considered that whatever pre-conceptions a jury might have of the issues, the risk of such tentative views overwhelming the evidence actually given at the trial would be relatively slight in what was anticipated to be a long trial in which the Judge would be required to give all necessary warnings and directions.
[22]Unreported 10 November 1989.
[23][1990] VR 995 at 1005-6.
A similar view was expressed by the Chief Justice of England, Lord Taylor in Telegraphic plc; Ex parte.[24] After referring to the ability of juries to abide by the Judge's directions and decide the case on the evidence before them, His Lordship observed:
"that the nature of a trial is to focus the juries' minds on the evidence put before them rather on matters outside the court room."[25]
[24][1993] 2 All ER 971.
[25]Supra Footnote 24 at 978.
In Talia v The Director of Public Prosecutions[26], Beach J refused to grant an order prohibiting publication of proceedings relating to the applicant's plea of guilty to conspiracy to defraud or the sentence imposed by the trial Judge though the applicant was due to face a further count of conspiracy for fraud in two months time. His Honour regarded the interest of the public in knowing the outcome of the conspiracy charge as far outweighing the risk of any prejudice to the plaintiff in his second trial. His Honour adverted to the trial Judge's power to adjourn the trial if it was considered that the plaintiff had been prejudiced by publicity.
[26]Unreported 21 February 1995.
Counsel for the accused submitted that the weight of authority was to the effect that where a choice had to be made between publication of legal proceedings and a fair trial, prohibition on publication must always prevail. In addition to authority to which reference has already been made he relied upon Queensland Law Society Inc.; Ex parte[27]; John Fairfax & Sons Ltd v Police Tribunal (NSW)[28]; S.R.D. v Australian Securities Commission[29]; and Herald & Weekly Times Ltd v Magistrates' Court of Victoria & Ors.[30]
[27][1984] 1 Qd R 166 at 170.
[28](1986) 5 NSWLR 465 at 476-477.
[29](1994) 52 FCR 187 at 190; 123 ALR 730 at 733.
[30]Supra Footnote 5.
The line of authority upon which counsel relied does not, in my view, support such an unqualified principle. A trial Judge is required to make some assessment as to whether publicity of the trial will render a subsequent trial unfair having regard to the various protective mechanisms that would be available to the subsequent trial Judge.
Mr Leder submitted that the balancing test between the right of the accused to a fair trial and the importance of conducting open justice required that the latter consideration should prevail. It was submitted that it should be left to the subsequent trial Judge to determine the extent, if any, of the prejudice caused by the publicity in the present trial. Such a submission is similarly unsustainable. Contrary to the submissions of the parties, there is no prevailing principle.
The open administration of justice serves the interests of society but it is not an absolute end. If the openness of court proceedings were to result in justice being unattainable the rule of openness must be modified to meet the exigencies of the case. John Fairfax Group Pty Ltd v Local Court of New South Wales[31] and Herald and Weekly Times Ltd v Magistrates' Court of Victoria & Ors.[32]
[31](1991) 26 NSWLR 131.
[32]Supra Footnote 5 at 677 per Beach J.
The duty of a trial Judge to ensure that the interests of the administration of justice are met is a duty which extends beyond the immediate trial with which a Judge is concerned to other proceedings which an accused may have to face. If I was affirmatively satisfied that to permit publication would render it impossible for the accused to have a fair trial in the subsequent proceeding a suppression order should be made.
Assuming for the purpose of the present argument that one or more of the jurors selected in the County Court trial recalled publicity concerning the present trial, I am unable to detect how such knowledge in conjunction with the sequence in which factual issues might emerge in the County Court trial is likely to produce an unfair trial. As a consequence of the manner in which the prosecution and defence intends to conduct their cases, both in this trial and, as I am advised, in the County Court trial, it will be alleged before both juries that Mr Kudryavstev was part of a group of men who were allegedly involved in multiple burglaries and thefts. The jury will be told that Mr Goldman was the leader of that group. The jury will be told that following Mr Kudryavstev's arrest he agreed to co-operate with investigating police and commenced to provide information to facilitate the arrest of Mr Goldman and other members of the group. The jury will be told that the accused learned that Mr Kudryavstev was providing information and that when Mr Kudryavstev visited Mr Goldman at his request, he shot Mr Kudryavstev because he was a police informer. The jury will also be told that Mr Kudryavstev is in the Witness Protection Program and that he has received an indemnity from prosecution from the Director of Public Prosecutions. The jury will be told that the deceased, Nikolai Radev was also in some manner connected to the accused and Mr Kudryavstev. How many of these facts will actually be in dispute in the County Court trial is presently uncertain.
It has been made clear in this trial that it will not be disputed that the accused shot Mr Kudryavstev. The adumbrated defence in this trial is that the accused was placed under pressure by Nikolai Radev to shoot Mr Kudryavstev and though he discharged the firearm he did not intend to kill Mr Kudryavstev or to cause him serious injury. These facts are also likely to be placed before the County Court jury.
It is likely that in the County Court trial, the Crown will rely upon the accused's post offence conduct in which he shot Mr Kudryavstev, as providing a basis upon which the jury should infer that the accused had a consciousness of guilt of the charges before the County Court. Many of the matters to which I have referred will be part of the prosecutor's opening and part of the evidence-in-chief of the principal Crown witness, Alexander Kudryavstev. Based upon the likely course of the subsequent trial, I can see little force in the submission that a fair trial of the accused will be prejudiced because a juror may have first acquired a knowledge of such matters before the trial.
A primary task of the trial Judge is to ensure that the jury focuses upon the evidence before them and is not distracted by considerations extraneous to the trial. Where there has been publicity of prior proceedings in which issues were explored and evidence led which was quite unrelated to the issues and evidence in the subsequent trial, the trial Judge must determine whether the panoply of measures available to him or her will be sufficient to ensure the impartiality of the jury.
The matter is altogether different in circumstances where the published evidence arising from the present trial will be replicated in the second. The jury in the second trial by their oath or affirmation and in accordance with the directions of the trial Judge will focus upon the evidence in that trial and will be required to determine whether they accept such evidence and what conclusions are to be drawn from the facts that they find. Any knowledge gained by a potential juror as a consequence of the present trial's publicity will not relate to matters extraneous to the County Court trial. Such knowledge is unlikely to taint a juror's deliberations. Any knowledge acquired by a juror as a consequence of this trial will be the subject of evidence, submissions and directions by the trial Judge during the course of the County Court trial. That trial's process will have the effect of focussing the juries' mind on the evidence before them. Unlike knowledge of prejudicial and inadmissible matters which may taint a juror I am not persuaded that a knowledge of the evidence or issues in the present trial has the capacity to prejudice the proper deliberations of a subsequent County Court jury.
As the County Court trial will not be heard for more than 12 months it is unlikely in any event that jurors selected for the County Court trial are likely to have a knowledge about the circumstances of the present case. The line of authority to which I have been referred by both parties strongly suggests that a gap between the proceedings of such an order removes any appreciable risk of prejudice.
No prejudice to the accused in his County Court trial having been established that would necessitate an order prohibiting publication of these proceedings, the application was therefore rejected.
In the event that the accused is convicted of either of the offences in the present trial, I leave open the question of whether an order should be made prohibiting the publication of any aspect of proceedings on the plea and I will permit counsel for the accused to make a further application for suppression should he see fit.
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