R v Rajapakse (No 2)

[2024] NSWSC 1227

Supreme Court

New South Wales

Medium Neutral Citation:

R v Rajapakse (No 2) [2024] NSWSC 1227

Hearing dates:

10 September 2024

Date of orders:

10 September 2024

Decision date:

10 September 2024

Jurisdiction:

Common Law

Before:

Chen J

Decision:

(1) The application of Tony Rajapakse to discharge the order made by McNaughton J on 2 August 2023 is refused.

(2) Pursuant to ss 7 and 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), there be a non-publication order prohibiting the publication or other disclosure of the information that comprises the fact of the application being made, the evidence and submissions given on the current application as well as the judgment of the Court.

(3) That the NSW Police and all law enforcement agencies be exempt from the operation of Order 2.

(4) These orders apply throughout the Commonwealth.

(5) These orders operate until the jury returns its verdict.

(6) Order that all material in connection with the current application be placed into a sealed envelope with access not to be granted to this material without the leave of a judge of this Court.

Catchwords:

CRIMINAL PROCEDURE – Trial – Application by accused’s father to discharge order made by McNaughton J excluding him from the court and court precincts until verdict is taken – Where allegations against the accused’s father include attempts to intimidate important Crown witness - Application to discharge order refused

Cases Cited:

Commissioner of Taxation v De Vonk (1995) 61 FCR 564; [1995] FCA 994

European Asian Bank AG v Wentworth (1986) 5 NSWLR 445

Moore v Clerk of Assize, Bristol [1971] 1 WLR 1669

Regina v Davis [2008] AC 1128

Texts Cited:

David Rolph, Contempt (2023, The Federation Press)

Category:

Procedural rulings

Parties:

Rex (Crown)
Tony Rajapakse (Applicant)

Representation:

Counsel:
C Young (Crown)
Applicant (self-represented)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)

File Number(s):

2020/00308992

Publication restriction:

Nil

JUDGMENT

1. These reasons relate to the “age-old and worldwide problem” of intimidation of witnesses (Regina v Davis [2008] AC 1128 at [36]), and what a court should do when faced with that problem.

2. On 2 August 2023, McNaughton J made an order that excluded the father of the accused from the court, and the court precincts, essentially on the basis that his conduct “could be seen to be an attempt to undermine the course of justice and to intimidate witnesses including police officers, such that a fair trial, both on the part of the accused and on the part of the community, would be unable to be held”.

3. By application made today, Mr Rajapakse Snr seeks the discharge of that order. The Crown opposes the order sought by Mr Rajapakse Snr.

4. Evidence was read by each side, and Mr Rajapakse Snr was cross-examined by the Crown.

Background

5. I will briefly sketch the background facts to enable the present application to be put into context – that is, explain the circumstances leading to the father of the accused being excluded from the court, and the court precincts, by order made by McNaughton J. Thereafter, I will outline, and resolve where they are contested, the circumstances that have arisen subsequent to that order, and more recently.

The order made by McNaughton J

6. The accused, Russel Rajapakse, stands trial for the murder of Corey Breceljnik allegedly committed on 25 October 2020, outside the front of 11 Slim Close, Watanobbi, New South Wales.

7. There was a prior trial in August 2023 before McNaughton J and a jury. The jury were unable to reach a verdict.

8. Following the commencement of the trial, on 2 August 2023, McNaughton J made an order that the accused’s father be “excluded during the course of the trial until the verdict is taken”, and that order extended to excluding him from not only the court, but the court precincts. For that trial, and indeed the current one, he has been watching the proceedings remotely – a link having been provided to him.

9. The basis for the order made by McNaughton J was described, in general terms, as arising out of “the accused’s father [having] made a number of different gestures, comments and/or approaches to both witnesses and police involved in this matter”. More specifically, the basis for the order made by McNaughton J rested upon the following findings:

1. That the accused’s father had “spoken to one of the police officers involved and indicated to that police officer that he knew his family, in the town in which the police officer had grown up and he also said to the officer, ‘You have three kids, right’”;

2. Following a witness giving evidence on a Basha enquiry, as the witness “left the courtroom a gesture was made to him” which was “in the context of a certain reputation held by the father…”; and

3. That the accused’s father was “told not to approach police officers, not to engage with them and him continuing to do so”.

10. The “reputation” that McNaughton J referred to, the Crown confirmed, is a reference to Mr Rajapakse Snr having a senior role in an outlaw motorcycle gang for many years. The evidence, I add, establishes that he had such a role.

The circumstances subsequent to that trial

11. The Crown, in short, submits that events that have occurred subsequent to the first trial reinforce why the order made by McNaughton J should not be discharged. Mr Rajapakse Snr contests that such events occurred, and submits that he should be allowed to enter the court to view the balance of the trial and to support his son.

12. The Crown relies upon two events, individually and cumulatively, as follows:

1. first, interactions that Mr Rajapakse Snr had with a witness, prior to that witness giving evidence on a Basha enquiry on 26 August 2024; and

2. secondly, in effect, attempts by Mr Rajapakse Snr to intimidate a Crown witness, namely Joel MacAlpine.

13. Not only did Mr Rajapakse Snr contest these events, but he also sought to contest two of the findings made by McNaughton J.

14. The alleged interaction on 26 August 2024 is said to have occurred in a coffee shop near the court complex and involved Mr Rajapakse Snr and a witness, Mr Shannon Dunk. At the commencement of the trial, the Court was advised about this interaction – essentially, that it had been observed. It is referred to in the transcript from that day.

15. Mr Rajapakse Snr’s evidence was that rather than him approaching the witness, it was the witness who approached him and, in any event, the interaction was brief and benign: affidavit of Mr Tony Rajapakse sworn 5 September 2024, pars 28-38. Mr Rajapakse Snr confirmed in evidence today that he did not know Shannon Dunk.

16. The Crown was not placed to contest this evidence, and I am prepared to accept it.

17. The second interaction relates to events that occurred in or around November 2023. It is to be recalled that, by that time, the jury was unable to arrive at a verdict and a retrial was listed to occur. Joel MacAlpine was a Crown witness in that trial, and he has given evidence in the current one.

18. On 1 November 2023, Mr MacAlpine’s mother (Ms Botrell) made contact with police advising that her former husband visited her and her children in the previous week. According to police, Ms Botrell’s former husband was a “well-known OMCG member and an associate of” Mr Rajapakse Snr. During that visit, Ms Botrell’s former husband said:

Message from the dark man. Tell Joel to watch himself when he visits the Central Coast.

19. Mr Rajapakse Snr gave evidence that the only nickname that he used was “Midnight”. The evidence, which I accept, is that Mr Rajapakse Snr used, or at the very least has used, the nicknames: “Midnight” or “dark man”.

20. Joel MacAlpine was made aware of what was said by his mother but neither he, nor his mother, wished to make a statement to police about this “nor did they want Midnight spoken to due to fears it could escalate the situation”: statement of Detective Acting Sergeant Matthew Erickson dated 2 September 2024, pars 9 and 10. A COPS Event report was prepared of this incident at the time.

21. Mr Rajapakse Snr has denied speaking to any of the persons involved, including Ms Botrell’s former husband, and has suggested that “there must be some mistake made on behalf of those persons”: affidavit of Tony Rajapakse, pars 25-27. In evidence today, he more or less confirmed this version.

22. I am not prepared to find that there has been any mistake, as was suggested by Mr Rajapakse Snr. I accept that this conversation occurred in the way Ms Botrell reported to police. That is particularly given the evidence, which I accept, that Ms Botrell’s former husband was an associate of Mr Rajapakse Snr. It impresses as somewhat unlikely, in the circumstances, that a conversation of this kind could be the subject of a “mistake” or, as seems to be suggested, invented. It resulted in a contemporaneous report to police involving Ms Bottrell and Mr MacAlpine, it should be noted.

23. Mr Rajapakse Snr also challenges the finding made by McNaughton J, referred to in [9(1)], above – namely, the “interactions” with a police officer in the Newcastle courthouse on 1 August 2023. The evidence, which I accept, is that the interactions between the police officer and Mr Rajapakse Snr on this occasion occurred at 9:50am.

24. The police officer in question, Plain Clothes Senior Constable Doring, prepared a statement. Attached to that statement was a copy of an email that he sent at 10:28am on 1 August 2023 to a range of superior officers that set out his version of the interaction with Mr Rajapakse Snr. That evidence clearly supports the finding made by McNaughton J.

25. Mr Rajapakse Snr argues that this evidence was simply “not true” and that, to the extent there was any “small talk” with the police officer in question, it was extremely limited and any discussion about the Dubbo area was from the police officer in question and not him: affidavit of Tony Rajapakse, pars 14-18. In evidence today, the evidence was slightly different, and was that the topic of Dubbo was raised following the police officer (and another) initiating a conversation with Mr Rajapakse Snr and him responding about a police prosecutor from Dubbo. Mr Rajapakse Snr denies saying what is alleged, and in particular denies knowing anything about his family or that he had “3 kids”.

26. I am not prepared to revisit the finding made by McNaughton J, even assuming it was permissible for me to do so. Further, even if I were to do so, I accept the evidence from PCSC Doring as to how the interaction occurred on 1 August 2023. I do so because the circumstances posited by Mr Rajapakse Snr impress as quite improbable – that is, that it was the police officer in question who approached him to make small talk, and then proceeded to engage in small talk with a person he did not know about having children and living in the Dubbo area.

27. Mr Rajapakse Snr also challenges the finding made by McNaughton J, referred to in [9(2)], above – namely, that he gestured towards a witness, following that witness giving evidence. Mr Rajapakse Snr denies that he “intimidated any witness”: affidavit of Tony Rajapakse, par 24. I decline to entertain any challenge to that finding, which was clearly central to McNaughton J’s reasoning.

Discussion and consideration

28. There is no doubt of this Court’s right and, indeed, its obligation, to protect the integrity of its operations and to prevent interference with the administration of justice: see generally Commissioner of Taxation v De Vonk (1995) 61 FCR 564, 569; [1995] FCA 994.

29. Conduct directed towards witnesses are dealt with under the law of contempt: the Court will “always preserve the freedom and integrity of witnesses and not allow them to be intimidated in any way, either before the trial, pending it or after it”: Moore v Clerk of Assize, Bristol [1971] 1 WLR 1669, 1670; European Asian Bank AG v Wentworth (1986) 5 NSWLR 445, 450.

30. It is well-established that to “deter or frighten a witness from giving evidence” or “to threaten or intimidate a witness” amounts to a contempt, even if unsuccessful. [1] The present application does not, of course, involve proceedings for contempt, but the way in which the Court will take steps to ensure that conduct directed towards a witness (and those associated with the proceedings), be it actual or threatened, will not compromise the administration of justice – and, in particular, the fairness of the trial – informs the approach in the present situation.

    1. David Rolph, Contempt (2023, The Federation Press) at 383.

31. Mr Rajapakse Snr raises a number of reasons why the order should, in his submission, be discharged. They may be summarised as follows: none of the allegations are true; he has ultimate respect “across-the-board” for everyone; at least one of the events that McNaughton J attributed to him as occurring in August 2023 was a mix up – it was a statement made not by him, but by his son’s partner (I observe that McNaughton J accepted as much); and, finally, on the last occasion when the order was made, he did not get an opportunity to respond to the various allegations made against him.

32. The circumstances overall are, to say the least, troubling, not to mention serious. The trial is, as the Crown submitted, at a delicate stage with a number of prosecution witnesses still to give evidence. Those witnesses must be allowed to come and go without fear or favour. In my view, there remains, particularly given the conduct that occurred in the prior trial and that which I have found was likely to have occurred in November 2023, a clear and distinct risk of interference to the administration of justice and the fairness of the trial by discharging the order made by McNaughton J, so as to permit Mr Rajapakse Snr to attend court.

33. I have not overlooked the desire of Mr Rajapakse Snr to be present in court to support his son, but I consider that that consideration, in the present circumstances, to be very much subservient to the administration of justice and the fairness of the trial and its integrity.

34. Accordingly, I decline to discharge the order made by McNaughton J.

Orders

35. I make the following orders:

1. The application of Tony Rajapakse to discharge the order made by McNaughton J on 2 August 2023 is refused.

2. Pursuant to ss 7 and 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), there be a non-publication order prohibiting the publication or other disclosure of the information that comprises the fact of the application being made, the evidence and submissions given on the current application as well as the judgment of the Court.

3. That the NSW Police and all law enforcement agencies be exempt from the operation of Order 2.

4. These orders apply throughout the Commonwealth.

5. These orders operate until the jury returns its verdict.

6. Order that all material in connection with the current application be placed into a sealed envelope with access not to be granted to this material without the leave of a judge of this Court.

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Endnote

Decision last updated: 30 September 2024