R v kN

[2007] NSWDC 133

CITATION:	R v KN [2007] NSWDC 133
HEARING DATE(S):	28th May 2007
EX TEMPORE JUDGMENT DATE:	29 April 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Application for a temporary stay granted. [para 42]
CATCHWORDS:	Criminal Law - trial - sexual assault - application for temporary stay - newspaper campain launched first day of trial - campaign seeking equal justice under law for sexaul assault victims - campaign critical of courts'/legal professions' treatment of complainants - test - risk accused would not receive a fair trial in all the circumstances - available imputations from article - application granted.
LEGISLATION CITED:	s19 (2) Criminal Procedure Act 1986
PARTIES:	Regina KN
FILE NUMBER(S):	06/21/1111
COUNSEL:	Defence: M Picken
SOLICITORS:	Crown: Mr J H Gibson - Penrith office of Director of Public Prosecutions

JUDGMENT

1. HIS HONOUR: I want the accused to be referred to, for the purposes of this judgment only, as K.N. Today, 28 May 2007 K.N.’s trial was set down for hearing at the Penrith District Court. He had been arraigned by the crown earlier this year on a charge that he had sexual intercourse with a twenty-one year old complainant, A..H., in December of 2005 without her consent, knowing she was not consenting in circumstances of aggravation, namely, that at the time of the offence he maliciously inflicted actual bodily harm upon her.

2. Today, 28 May 2007, The Daily Telegraph announced on its front page it was launching a major campaign to help rape victims and to encourage more women to come forward. Normally it would be difficult to find a nexus between these two events. Mr Pickin, counsel for the accused, has made an application for a temporary stay of the trial upon the grounds that in the face of the launch of The Daily Telegraph’s complaint there is a risk the accused may not receive a fair trial.

3. That application has been made pursuant to s.19 (2) of the Criminal Procedure Act 1986. Although that section is headed ‘Traverse of Indictment’ it seems to me that the terms of subs. 2 are wide enough to permit such an application to be made.

4. The Crown opposes the application. The onus falls to the accused to demonstrate the risk that his trial would not be a fair trial in all the circumstances.

The crown case.

5. The Crown alleges that the accused and complainant were both employed by the same company. It was in this way they had come to know each other. Early in December 2005 the Crown says the complainant had dropped an item off at the accused’s premises. She had at that time a short visit with him. She was picked up by her boyfriend and departed. She had inadvertently left her mobile phone at the accused’s place. It was during the return visit to retrieve the mobile phone, on the Crown case, that she was the subject of aggressive, non-consensual sexual activity by the accused.

6. On the Crown case the complaint was never consenting, she made her absence of consent known verbally and by her body language as she physically struggled to resist him.

7. On the Crown case the accused was in no doubt she was not consenting, demonstrated not only by his use of physical aggression to subdue her but also by the words used when so doing.

8. On the Crown case in the course of this aggressive, physical encounter the accused forced at least one finger into the complainant’s vagina and manipulated it there for some moments.

9. On the Crown case the complainant escaped from the accused’s premises, complained immediately to her boyfriend, was cared for by other friends who witnessed her distress. She was taken to a police station where she made a statement.

10. The Crown has medical evidence on its case supporting the complainant’s account of receiving actual bodily harm.

11. The following morning police arrested the accused. He denied assaulting the complainant. He told police she claimed to be “As horny as hell”, showed him she was not wearing underwear and “Came on” to him.

12. The accused told police that he had pushed her off the lounge and away from him. She then left the premises leaving behind her shoes and mobile phone.

Evidence on the application.

13. Six articles were tendered from today’s “The Daily Telegraph”. Also tendered was an Internet printout of a companion article from The Daily Telegraph’s website entitled “It’s time to end rape nightmare”. This article is attributed Janet Fyfe-Yeomans and Lisa Davies.

14. The relevant portions of that article are set out below.

“The shocking treatment of rape victims by the courts has been overwhelmingly condemned by police, prosecutors and health workers The Daily Telegraph can reveal.

The State Government’s own sexual assault task force has found the criminal justice system guilty of violating and humiliating women all over again...

The truth is eight percent of rape cases reported to police are never prosecuted. Of those that make it to trial almost three out of four end up in an acquittal.

Between seventy and ninety percent of rapes are never reported. That’s thirty-five thousand rapes of women - and the victims are usually women - in New South Wales every year that are never even investigated.

The Daily Telegraph today launches a campaign to give victims of sexual assault equal justice under law, to make the system fairer and to encourage more women to report sexual assaults.

The campaign has been put together in consultation with rape victims, the NSW Rape Crisis Centre, police and academics. Read on to find out the reforms we seek. If you wish to support the campaign c lick here to add your name to our petition . If you want to have your say on the subject then use the feedback form at the bottom of this story.

...While the State Government established a task force following public outrage over the notorious gang rape trial in 2003 and 2004 nothing has been done about its findings.

The Daily Telegraph campaign seeks four key reforms.

Rape cases can last several years, this is far too long. The longer a case takes the more likely the victim will drop out.

The Daily Telegraph wants a limit of twelve months to be set from the date charges are laid to the end of the appeals process.

This should be broken up into three deadlines: Four months from charges to committal; four months from committal to trial; four months to decide appeals.
In South Africa specialist courts ensure no rape case takes more than seven months.

The District Court has already tackled part of this process.

Earlier this year it introduced priority lists for rape charges and ordered lawyers must be ready to start trial within four months of the case being committed for trial.

In thirteen European countries rape victims have a right to some form of legal representation.

This is not the case in New South Wales.

The defendant has a lawyer and the crown has a lawyer but the victim does not. It was recently made clear by the Court of Criminal Appeal in relation to gang rape prosecutor Margaret Cunneen that the crown prosecutor’s role was not to support or represent the victim. Their role is to prosecute the police charges.

Lawyers for the victim should be able to object to unduly hostile cross-examination of the complainant but also provide information about the investigation and trial process and make submissions at bail hearings.

A NSW study on rape trials showed victims could be asked questions on the same issue between twenty and a hundred and seventy different times indicating trial judges don’t always intervene to stop the harassment of witnesses.

This must be enshrined in the criminal law, the government task force reported that consent was a difficult concept for jurors to understand when wrapped up in legalese.
A simple statutory definition of consent should be adopted that states the person has a capacity to consent and they did so freely and voluntarily.

#4 One Stop Shop

15. The six articles tendered from today’s The Daily Telegraph commenced with a first article on the front page, thereafter there were five other articles on pages 5 and 6.

16. The front page article with white on black background, two inch headlines “Justice For Women Now”. Then a series of bullet points

• “Ninety percent of rapes left unreported
• Victims face marathon trials
• Horrific court room questions
• Today, we say enough is enough”.

17. Then a paragraph in normal font, again still white on black background:

“Too many women are refusing to report sexual assaults because they are frustrated with our torturous legal system and how it allows them to be humiliated all over again. The Daily Telegraph today launches a major campaign to help rape victims and encourage more women to come forward.”.

Underneath that contained in a box is this:

“Full report and how you can help: Pages 6 and 7”.

On page 5, the first article contains the following:

It is headed,

“Consent Issue, It’s a Legal Barrier.
Judges and lawyers have vigorously opposed a commonsense change to the rape laws that were to define for the first time what consent means.

There is currently no statutory definition of consent in the NSW law.

Judges must base their decisions on common law which is based on decisions from previous court cases, but the common law rule provides that consent obtained after persuasion is still consent.

The rule also requires the prosecution to prove that the victim did not consent.

The government sexual assault task force recommended a simple legal definition of consent that states: ‘A person consents if he or she freely and voluntarily agrees to the sexual act and has the capacity to make that choice’...

But a study of juries in eighteen sexual trials found jurors had little idea what consent meant - which is not surprising in light of what the trial judge must currently tell them.

The judge must direct the jury that in order to establish that the accused was reckless as to whether the complainant consented to the sexual act the Crown must: *PROVE beyond reasonable doubt that his or her state of mind was such that either he realised the possibility the complaint was not consenting and went ahead regardless: or *PROVE he failed to consider whether or not the complainant was consenting and went ahead when the risk that the complainant was not consenting would have been obvious to someone with the accused’s mental capacity had they turned their mind to it.

The NSW Director of Public Prosecution, Nicholas Cowdey has supported writing a simple definition of consent into the law...”.

18. The second article appears with in a picture frame of a couple photographed from behind, the male leaning against a tree under the heading “Numbers Reveal the Sad Truth”. It really is a series of bullet points.

• “Between seventy and ninety percent of sexual assaults are never reported to police.
• More than eight percent of sexual offences reported to police do not proceed to prosecution.
• Most accused rapists plead not guilty.
• In the Local Court only twenty-four percent of people charged with a sex offence pleaded guilty compared to forty-eight percent of those charged with assault and fifty-seven point one percent overall.
• In the higher courts thirty-five point three percent of people accused of a sexual offence plead guilty compared to sixty-five point one percent charged with assault and seventy point seven percent of all offences generally.

19. In the second column of that article appears:

“Daily Telegraph
Show your support. Join our online petition seeking justice for rape victims and listen to the NSW Rape Crisis Centre, Karen Willis explaining the campaign.
dailytelegraph.com.au”

And then continuing on in that second column is the bullet points made that I earlier referred to including these two:

• “In the Local Courts thirty-six percent had the case dropped compared to seven percent of all offenders.
• In the higher court charges were dropped against 23.3% of sex offence defendants compared to just 8.3% of defendants generally”.

20. That material was said to be sourced from the New South Wales Bureau of Crime Statistics and Research.

21. The third article is headed “It’s Time to End Rape Nightmare”. That article reflects the material I earlier referred to coming from the Internet.

22. A fourth article is under the heading “Resolving to Fight After a Trial’s Terrors”. That article purports to report Salvation Army Major Joyce Harmer’s experiences in supporting one of the complainants during a hard-fought sexual assault trial of some notoriety conducted in 2002. Major Harmer has of course retired for more than a year now but was well-known in the Downing Centre.

23. The fifth, is an article headed “Brave Victim Vows to Help Campaign”. That recounts claimed aspects of a rape victim’s ordeal experienced after she complained of rape. Her personal views on the need for reform as a result of her post-sexual assault experiences are also canvassed.

24. The final article is headed “Now It’s Lawyers Turn to Change”. This article focuses upon claimed tactics employed by some defence barristers. Of relevance to this application are the following:

...”But put some of them (defence barristers) in a court room with an accused rapist for a client and it becomes a blood sport in which the woman as the witness in the witness box is ripped to shreds.

No-one could fail to be appalled by cross-examination of one young gang rape victim. The barrister for one of the fourteen men who raped her twenty-five times over six hours suggested to her that far from screaming and crying at them to stop she was ‘moaning in pleasure’.

That is not a defence, it’s a crime.

...It used to be the police who copped the flack for the clumsy way they dealt with rape victims but they have done a lot of work. Now it is the turn of lawyers and the courts to take a hard look at themselves...”.

Defence arguments.

25. The defence argue there is a real risk that the accused, although not personally named in any of the articles, would not receive a fair trial commencing today in the face of The Daily Telegraph’s articles and proposed campaign.

26. The defence argue that jurors selected today may be influenced by the articles and the call to associate themselves with the campaign.

27. The defence argue the articles fail to distinguish between a victim and complainant, telescoping, as I understand the argument, all complainants into de facto victims.

28. It is said that impacts upon the directions I must give concerning the presumption of innocence, burden and standard of proof. It is argued the use of statistics exhibited in the article would inhibit the jury in acquitting an accused in circumstances where an acquittal was fairly open on the evidence.

29. It is argued the examination of the evidence and arguments by the jury must be conducted without fear or favour, by which I understand counsel to be saying, dispassionately, calmly and with sound reasoning.

30. The Crown argues that there is no personal prejudice to the accused, that directions from the trial judge would adequately address the situation. It points out that in this trial the jury will see things are better than presented in the articles tendered. It pointed to the use of the CCTV for the complainant’s evidence, her access to a support person and that her evidence would be given in camera.

31. This is a trial, he says, in which directions will be given upon the burden and standard of proof, he pointed out that the trial will require a “Murray” direction. It was his argument that the directions given by me would adequately deal with any risk of prejudice.

Resolution.

32. Justice in New South Wales, particularly insofar as adults are concerned, is almost invariable done in open court. That is so that the Court, its processes and results are available for public scrutiny. For some time now, and in some quarters there has been a level of disquiet about the processes and efficacy of sexual assault trials in New South Wales.

33. The issue raised in today’s The Daily Telegraph are important issues, appropriate for public debate. While I have serious reservations as to the presentation and accuracy of some material presented by The Daily Telegraph in at least some of the articles and editorialising of the reporters, that does not diminish the importance of the debate.

34. No doubt jurors making themselves available for selection may also entertain a view as to the importance of the issues raised in the articles but perhaps without the critical eye that I have at least credited myself with having.

35. An overview of the reporting and editorialising of the journalists must yield a number of imputations being advanced by them including:

• Female complainants under the present system are not receiving justice.
• Rape victims are receiving shocking treatment at the hands of the trial court. [and the Appeal Courts]
• That the problem is so appalling that it has been overwhelmingly condemned by responsible organs of government including police prosecutors, the relevant task force, health workers and others.
• The absence of a personal lawyer for the complainant disadvantages the complainant.
• As a consequence of the above ninety percent of rapes are unreported.
• The court process is so unfair to victims because trials are marathon and/or questions asked by defence counsel are horrific.
• The situation is so grim that The Daily Telegraph [responsibly] says ‘Enough is enough’ and seeks support from those of its readers willing to help.
• One of the major failings of the system is the directions currently being given by trial judges..
• Further, directions on consent are unfair to the victims of sexual assault.
• Those directions are out of keeping with better directions sought by a responsible Government task force and the Director of Public Prosecutions for New South Wales.
• The directions on consent permit accused who rely upon belief of consent that the complainant was consenting to cause the Crown to fail to prove absence of consent.

.

36. I interpolate here to suggest the journalist has confused the crown’s obligation to prove absence of consent with the crown’s obligation to prove that the accused knew the complainant was not consenting.

• That a defence lawyer may belong to a group that regard cross-examination of a complainant as a blood sport.
• That judges are not adequately policing defence counsel’s cross-examination.
• That defence counsel should censor his/her instructions from the accused and put to a complainant only those that are least offensive to the account given by the complainant.
• That the human interest stories are compelling evidence of the failure of the court system to give complainants a fair go.
• That a complaint equals a victim.

37. It would appear The Daily Telegraph regards the campaign and debate it has launched as an important opportunity to deal with a social ill that needs to be addressed.

38. I am satisfied it is well open that some of the jurors may regard the imputations I have referred to above as fair comment and that holding such a belief may distract that juror or those jurors from their task of confining themselves to the evidence led in Court, to the arguments advanced by counsel in Court and the directions given by the trial judge, particularly on the issues of consent.

39. In my view there is, as matters presently stand, a real risk that the accused may not receive a fair trial at this time.

40. I am satisfied it is in the interests of justice that the trial be stood over for a month or so by which time I would anticipate the campaign, if it continues to exist, will be more subdued.

41. In those circumstances the risk of tainting the fair trial of the accused will obviously abate.

42. The application for a temporary stay is granted.

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