Regina (C'Wealth) v Elomar [No 29]

[2009] NSWSC 1102

CITATION:	Regina (C'Wealth) v Elomar & Ors [No 29] [2009] NSWSC 1102
HEARING DATE(S):	29/09/09
JUDGMENT DATE :	29 September 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Whealy J at 1
DECISION:	Application to discharge the jury is refused.
CATCHWORDS:	CRIMINAL LAW - Application for discharge of jury - Publicity in an overseas terrorist trial - Publicity in local trial - Same Solicitor in each trial - Whether a real risk of miscarriage of justice - test of necessity - Whether publicity has to be confined to the particular accused - Whether publicity about a trial with no connection to the accused can warrant a discharge - Jurors' adherence to directions - Trust in Jury system
CASES CITED:	Dietrich v The Queen (1992) 177 C293, 362 per Gaudron J John Fairfax Publications pty Ltd v District Court of NSW [2004] 61 NSWLR 344 Re K (2002) NSWCCA 374 per Beazley JA, Sully and Simpson JJ R v Glennon (1992) 173 CLR 592 and 632 R v Petroulias [No 19] BC 200711115 at (40) R v Jamal [2008] NSWCCA 177; [2008] 72 NSWLR 257
PARTIES:	Regina (C'Wealth) v Mohamed Ali ELOMAR [29] Regina (C'Wealth) v Abdul Rakib HASAN Regina (C'Wealth) v Khaled CHEIKHO Regina (C'Wealth) v Moustafa CHEIKHO Regina (C'Wealth) v Mohammed Omar JAMAL
FILE NUMBER(S):	SC 2007/2399001; 2007/2400001; 2007/2395001; 2007/2398001; 2007/2452001
COUNSEL:	R Maidment SC; G Bellew SC; C O'Donnell; S McNaughton - Crown D Dalton SC; E Ozen - Accused Elomar D Yehia; S Beckett - Accused Hasan C Waterstreet; P Lange - Accused K Cheikho R Button SC; I Nash - Accused M Cheikho G Scragg; D Carroll - Accused Jamal
SOLICITORS:	C'Wealth DPP - Crown Nyman Gibson Stewart - Accused Elomar Legal Aid Commission - Accused Hasan Lawyers Corporation Ltd - Accused K Cheikho William O'Brien & Ross Hudson Solicitors - Accused M. Cheikho Michael Doughty Solicitors - Accused Jamal

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

WHEALY J

PARRAMATTA: TUESDAY 29 September 2009

2007/2399001 - Regina v Mohamed Ali ELOMAR [No 29]
2007/2400001 - Regina v Abdul Rakib HASAN
2007/2395001 - Regina v Khaled CHEIKHO
2007/2398001 - Regina v Moustafa CHEIKHO
2007/2452001 - Regina v Mohammed Omar JAMAL

JUDGMENT - Re applications to discharge jury

1 HIS HONOUR: There are two applications before the Court for discharge of the jury. The first is made by Ms Yehia of senior counsel for the accused Mr Hasan. That application is supported by all the other accused, except the accused Mr Elomar. The second application is made by Mr Lange on behalf of his client Khaled Cheikho.

2 The first application concerns a Four Corners program broadcast on ABC Television last night at about 8.30pm. It is a program that lasted some forty minutes. The program arose out of the conviction of three men by a British Court in connection with a plot to blow up a number of transatlantic airliners flying between London and the United States and Canada. Earlier, there had been media reports on Tuesday 8 September 2009 concerning the same topic. Indeed, this had led to an application by all the accused, again with the exception of Mr Elomar, to discharge the jury, based on that publicity. On 11 September 2009 I declined to discharge the jury on that basis and I gave reasons for my decision on Monday 21 September 2009 (see The Queen v Elomar [No 27]).

3 Ms Yehia, in her submissions today, referred to the earlier application and reminded the Court that it had essentially been based on five points which were described as being of striking similarity to features in the present trial. Ms Yehia argued that the Four Corners program now provided a further basis for a discharge. Counsel submitted that the program contained more detail of a prejudicial nature than had the previous publicity. Ms Yehia submitted that it was quite likely that at least one of the jurors would have seen the Four Corners program because it was a popular program, and it was broadcast in a major time slot.

4 Essentially, Ms Yehia submitted that there were four factual matters that were of this prejudicial kind. These were said to be matters over and above those referred to in the earlier discharge application. They were, firstly, that chemicals had been purchased in a false name "to start a health store". Secondly, a number of items of equipment were purchased that were similar to items that had been purchased in the present trial; for example, pipettes, flasks and glass containers. Thirdly, the program last night showed a suitcase being purchased and a spade, it being the suggestion that the suitcase containing items connected with terrorism were being buried somewhere in the woods. Fourthly, Ms Yehia referred to the fact that on one of the martyrdom videos shown on the Four Corners program one of the defendants in that trial had said "as you bomb us, you will be bombed, as you kill us, you will be killed". The quote is not precisely the same as, but is similar to a remark made by an Australian accented mujahid speaking on a video that was an exhibit in this trial. That exhibit was alleged by the Crown to have been commonly in the possession of a number of the accused.

5 Ms Yehia's submissions, therefore, were essentially two-fold. While counsel accepted that the program did not specifically relate to any person in this trial, it was nevertheless submitted that there comes a point where a similarity in a particular situation between the circumstances in one trial, if extensively publicised, will create real prejudice in another trial. Secondly, Ms Yehia submitted that we had now reached that point where, having regard to this program and the related publicity, there was a real risk of a miscarriage of justice.

6 I will turn next to consider Mr Lange's submissions. First of all, he supported Ms Yehia and made two points in that regard. Firstly, he said the phrase "you bomb us etc" was not only a phrase that appeared on the video, it had been referred to in the summing-up as it was part of the evidence. Indeed, Mr Lange said that one local press article had picked up the words in a report concerning the final phase of the trial. Mr Lange argued that this increased the likelihood of prejudice because of the similarity between the words appearing in the two trials.

7 Secondly, Mr Lange reminded the Court that the New South Wales Court of Criminal Appeal in Re K [2002] NSWCCA 374 had held that it would be an error of law for a judge, in considering whether to grant a stay, to consider only whether the matter of prejudice was directed specifically at the accused. Mr Lange submitted that there need not be a direct link between the trial where a stay is sought, and the trial or trials that have been extensively publicised.

8 The second aspect of Mr Lange's submissions on which he sought a discharge was based on quite discrete grounds. These arose from MFI 296. The first aspect was an online report associated with The Sydney Morning Herald dated 25 September 2009. This is headed "Chilling Plot: Suspect Hit Beauty Stores For Bomb Supplies". The article might be summarised by saying that it deals with an Afghan immigrant who had been arrested in the United States. The article suggests that he had received explosives training from al-Qaeda, and that he went from one beauty store to another buying large quantities of hydrogen peroxide and nail polish remover with a view to building bombs for attacks on US soil. The article further suggests that he had used a hotel room in Colorado to try to “cook up” explosives a few weeks before a trip to New York, and that bomb making instructions had been found on his computer hard drive. Apparently FBI explosive testing had found explosive residue in the vent above the stove in the unit. Authorities, according to the article, seized backpacks, mobile phones and a scale from a neighbourhood that the suspect visited.

9 Mr Lange, of course, acknowledged that there was no connection between the American arrest and the proceedings here. But he asked rhetorically whether this trial had now reached a point where publicity about related offending might be said to give rise to a real risk of prejudice. Secondly, Mr Lange also tendered a report, or a series of reports, concerning the sentencing of one Bilal Khazaal in the Supreme Court last Friday. This gentleman had been gaoled for a maximum of 12 years with a non-parole period of nine years for making a document connected with assistance in a terrorist act knowing of the connection. The document was described in the article as a 110-page book compiled in September 2003 entitled "Provisions of the Rules of Jihad" and published online in Arabic as "a practical guide to achieving martyrdom". Apparently, it contained advice about terrorist acts, such as exploding bombs, shooting down planes and assassinating people such as the former US President George W Bush.

10 Once again, Mr Lange did not submit that there was any connection between Bilal Khazaal and this trial. He pointed, however, to the fact that there was a connection in that, in at least one of the articles, there was an interview outside the court with Khazaal's lawyer, Adam Houda, who had said his client would appeal. Mr Lange's point was that Mr Houda gets a mention in the present trial not only as a solicitor involved for one of the accused but also for the fact that he is mentioned as co-author of a publication called "ASIO, the Law and You". There is also evidence that a number of the accused were spotted by surveillance outside his office in early November 2005, it being their apparent intention to get some legal advice of one kind or another from him.

11 So Mr Lange's essential submission, focusing once again on the American case, was that the mention of going to beauty stores to buy hydrogen peroxide and nail polish remover, the use of stolen credit cards to buy chemicals, seizure of backpacks, mobile phones, et cetera, that all this perhaps suggested that there might be a worldwide manual available for use by terrorists. Mr Lange argued this fuelled the flames of prejudice in the present trial.

12 The Crown opposed each of the applications for discharge. Mr Maidment SC, who presented the Crown arguments, accepted that there does not necessarily have to be a direct link between publicity and persons in a particular trial, but he submitted, nevertheless, there would have to be a wholly exceptional set of circumstances for that type of publicity to result in a discharge. Mr Maidment submitted that the publicity during this long trial about terrorist matters of one kind or another, culminating in the Four Corners program, did not meet the stipulated test of necessity. Further, he submitted that it was hardly surprising that you see some similarities between allegations made in this case and those appearing in terrorist matters overseas since there is so much material available on the Internet, which can be scrutinised by persons who may have an interest in extremist matters.

13 Counsel stressed that although similarities of that kind might emerge from one trial to another, it is necessary, nevertheless, to look at the issues that arise in this particular trial and to contrast those with the situation appearing in the London plot. Mr Maidment submitted, when that was done, that there was no warrant for discharging the jury.

14 The principles that are relevant to resolve applications such as those in the present matter were set out in my earlier decision to which I have made reference. (The Queen v Elomar [No 27] at paragraphs 18 through to 26 inclusive). I will for completeness repeat them in this decision

Principles to be applied on the application

15 There is no dispute between the parties as to the principles applicable in the present situation. It is fundamental to our system of criminal justice that a person should not be convicted of an offence save after a fair hearing according to law (Dietrich v The Queen (1992) 177 CLR 293, 362 per Gaudron J). Although the Court should be slow to stay proceedings or to discharge a jury, in an appropriate case, the Court should not refrain from taking either step (R v Glennon (1992) 173 CLR 592, 623 per Deane, Gaudron and McHugh JJ; see also the Victorian Court of Appeal judgment upholding the trial judge's order restraining publication of the television series "Underbelly": General Television Corporation Pty Limited v DPP [2008] VSCA 103.

16 It is not necessary for the accused, in a discharge application, to demonstrate that he or she would not have a fair trial. It is sufficient if there is a real risk of prejudice if the trial were to continue (Re K (2002) NSWCCA 374 at (9)(10) per Beazley JA, Sully and Simpson JJ). In that case the Court found there had been “an unacceptable risk” (para 18) and that there would be a "real risk" if the trial were to proceed immediately following the pronouncement of the Court's decision.

17 Courts will assume that the jury, properly instructed, will accept and obey the directions of the trial judge to decide the case solely on the evidence placed before it during the trial. As Johnson J noted in R v Petroulias [No 19] BC200711115 at (40) - a judgment involving a stay application:-

“There is an increasing body of judicial opinion 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. A question remains in each case where the intensity, proximity and nature of the media coverage of the particular accused, or the particular circumstances, is such as to occasion the risk of unfairness to the accused so as to prejudice the accused's right to a fair trial for a time after the publicity. A judgment is called upon in each case having regard to the particular facts which are proved: R v Yuill (1993) 69 A Crim R 450 at 453-454."

18 There is no doubt that similar considerations apply in an application such as the present, where the publicity is directed not to the actions of the accused, but where it relates to the activity of persons who have no connection whatsoever to the accused.

19 In R v Glennon, Mason CJ and Toohey J at 603 observed that the possibilities that a juror might acquire irrelevant or prejudicial information is inherent in a criminal trial, and continued:-

“The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence. As Toohey J observed in Hinch (1987) 164 CLR at 74, in the past too little weight may have been given to the capacity of jurors to assess critically what they see and hear and their ability to reach their decisions by reference to the evidence before them.”

20 In John Fairfax Publications Pty Limited v District Court of New South Wales (2004) 61 NSWLR 344, Spigelman CJ (Handley JA and M Campbell AJA agreeing) said at 366 (102-103):-

“As set out above his Honour expressed his concern that a future trial judge could not effectively ensure a fair trial by giving the jury directions, particularly as this may highlight the issues which establish the possibility of prejudice. In this regard, in my opinion, his Honour was proceeding on a basis which has, in recent years, come to be rejected by the Courts in relevantly analogous case law.
There are now a significant number of cases in which the issue has arisen as to whether or not an accused was able to have a fair trial in the light of substantial media publicity, indeed publicity much more sensational and sustained than anything that occurred here. Those cases have decisively rejected the previous tendency to regard jurors as exceptionally fragile and prone to prejudice. Trial judges of considerable experience have asserted, again and again, that jurors approach their task in accordance with the oath they take, that they listen to the directions they are given and implement them. In particular, that they listen to the direction that they are to determine guilt only on the evidence before them.”

21 (See also R v Jamal [2008] NSWCCA 177; [2008] 72 NSWLR 257)

22 The "test of necessity", accepted by the parties in the present matter as being applicable to the resolution of this application, was endorsed recently by the Court of Criminal Appeal in R v Crowther-Wilkinson (2004) NSWCCA 249. In that case two interlocutory judgments by the trial judge (Hidden J) had been published on the Court's website during the trial. The first was an application for a separate trial, and the second concerned the admissibility of a statement made to police. The Court determined that there had been no miscarriage of justice and that there was no warrant for the discharge of the jury. Included in the Court's reasoning was the fact that there was no evidence to suggest that any member of the jury had actually accessed the Internet to scrutinise the two judgments. Secondly, the jury had been given an instruction to consider the evidence impartially and rationally, and directed to make a decision based only on the evidence. Thirdly, the case against the appellant was absolutely compelling, such that his conviction would have been inevitable.

23 In the course of giving the leading judgment, Wood CJ at CL (with whom Dowd and Kirby JJ agreed) said at paras 203 to 208:-

“203 There have obviously been cases where it has been considered necessary to halt a trial mid stream, where that kind of publicity has been particularly prejudicial. The principle which has been established in relation to this kind of event and other prejudicial happenings, is one of necessity; that is, there has to be a “high degree of need”, in order to avoid a miscarriage of justice, before a discharge will be ordered: Crofts v The Queen (1986) 186 CLR 427 at 432.
204 In most instances, it has been accepted that sufficient directions can be given to overcome the problem, since it has been recognized that jurors can be trusted to obey the directions that they are given: R v Bell NSWCCA 8 October 1998, Glennon v The Queen (1992) 173 CLR 592 at 603, Hinch v Attorney General(Vic) (No. 2) (1998) 164 CLR 15 at 74, Murphy v The Queen (1989) 167 CLR 94 at 99, R v Yuill (1993) 69 A Crim R 450 at 453/4, and R v Loguancio (2000) 1 VR 235 at para 24.
205 This is an important assumption, which underpins the retention of jury trials (see R v Gilbert (2000) 201 CLR 414 per McHugh J at para 31). I do not believe that it has been fatally flawed by the experience in the two recent cases decided in this State to which I will later refer ( R v K [2003] NSWCCA 401 and R v Skaf [2004] NSWCCA 37).
206 The authorities concerning prejudicial publicity tend to suggest moreover that the mere possibility of a juror having acquired prejudicial or extraneous knowledge, during a trial, is not normally a sufficient basis for concluding that the accused did not have a fair trial or that there was a miscarriage of justice.
207 For example, in Glennon , Mason CJ and Toohey J said at 603:
’Likewise, the suggestion that there was a substantial risk that at least one juror would have acquired knowledge, before the verdict was given, of the respondent's prior conviction was again a matter of mere conjecture or speculation. The mere possibility that such knowledge may have been acquired by a juror during the trial is not a sufficient basis for concluding that the accused did not have a fair trial or that there was a miscarriage of justice. Something more must be shown. The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial.’

208 In Murphy v The Queen (1989) 167 CLR 94, Mason CJ and Toohey J said at 99:
‘…it is misleading to think that, because a juror has heard something of the circumstances giving rise to the trial, the accused has lost the opportunity of an indifferent jury. The matter was put this way by the Ontario Court of Appeal in R v Hubbert (1975) 29 CCC (2d) 279 at 291:
'In this era of rapid dissemination of news by the various media, it would be naive to think that in the case of a crime involving considerable notoriety, it would be possible to select 12 jurors who had not heard anything about the case. 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.'”

24 Crowther-Wilkinson, and a number of the authorities referred to in it, essentially deal with the situation where there has been prejudicial publicity concerning matters that were directly involved in the particular trial. Often this will take the form of sensational media reporting of the allegations against a particular person in relation to a serious crime at a time prior to the commencement of the trial. It may take the form of inaccurate reporting during the currency of the trial. In either case, the situation is somewhat different in the present application where the reporting essentially deals with a topic similar to that involved in the current trial, but is not suggested to be publicity about the accused themselves or their involvement in the crime with which they are charged. In any event, as I have said, the parties are in complete agreement as to the principles applicable to the resolution of the matter.

Resolution of the issues

25 How then do these principles apply to each of the situations raised in the arguments? The first question is to consider whether any of the jurors would have been likely to have seen the Four Corners program or, for that matter, to have seen the material referred to by Mr Lange. As to the Four Corners program, there is no evidence before the Court that anyone has seen it. There is no evidence that the program was especially publicised in advance. The Four Corners program, although well known, was not shown on a major commercial channel. The program, it might be inferred, is aimed at a more select audience than perhaps many major timeslot programs on the commercial channels. Moreover, this was a specific program, it was not a news item; nor, so far as I have been able to ascertain, was the program reported in the media, either last night or today. As to Mr Lange’s report of the American arrest, it appears to have been a “one-off” and not featured elsewhere to any notable degree. On the assumption, however, that the material may have been viewed, it is necessary to consider the similarities that have been pointed to and to evaluate them in terms of their capacity to create potential prejudice.

26 In my earlier decision, I observed at paras 30 to 32 the following:-

“The first proposition is that although there are obvious similarities, there are major differences between the London plot and the allegations made in the present case. In the London situation, a group of Pakistani men, it appears, had determined upon a precise plot to bring down a number of transatlantic flights. The plan was so advanced that a test run had been undertaken, it seems, on a domestic flight. Further, the precise method of detonation of the explosives on the planes had been selected and thoroughly tested at ground level. By contrast, in the present trial, there is no suggestion that any of the accused had ever identified a target or targets. There is no mention of aeroplanes or of explosives in connection with any target whatsoever. There is no suggestion in the present trial that it had been determined who would carry out any proposed terrorist act or acts. The Crown case falls well short of suggesting that the accused, or any of them, were to be the bombers themselves. Certainly, the Crown case stops short of suggesting that any decision had been made that any of the accused would be the bombers and, as I have said, no target or targets had been selected. There was not the slightest suggestion in the present case, as I have said, that the ultimate aim of the collection of any chemicals or ammunition was the destruction and death of passengers on aeroplanes.
Another major difference is that, in the London trial, there was a video of one of the accused making plain his intentions that he was going to be involved in the death of innocent civilians. It was made plain that he would undertake this devastation because of the failure by America and its allies to heed Osama bin Laden's warning to leave Muslim lands.
Again, by way of contrast, in the present trial, there is no evidence, by way of TI or LD, to suggest that any of the accused themselves has been captured making what was called in the media reports "a suicide video". There is no discussion, as the defence have pointed out to the jury, which mentions a plan or proposal to bomb any target in Australia or overseas. There is indeed no direct reference to the offence alleged in the indictment.”

27 To those remarks, I would add these further points in light of the submissions which have specifically been placed before me today. First, there is no suggestion in the present trial that any accused here ever used or adopted the words "you bomb us, so you will be bombed", et cetera. The accused have conceded, or at least not disputed, that those words appeared in, or on, media in their possession, just as they have had to concede that they possessed images of the destruction of the Twin Towers or of Osama bin Laden in media in their possession. Some of the accused, indeed, had media containing images of the brutal execution of hostages by mujahideen. Their case in that regard, however, is that, firstly, everybody had these, they were simply handed out at the prayer hall. Secondly, there is no evidence that any of the accused actually viewed or discussed the material among themselves. Thirdly, there is no evidence they adopted any particular extremist points of view of the kind I have mentioned. This applies certainly to the catch phrase "as you bomb us, you will be bombed", et cetera.

28 The second point I would make is that the health store subterfuge referred to in the program concerning those involved in the London plot was plainly just that. It was a subterfuge. Here, the purchase of laboratory equipment is said to be genuinely for the purposes of a legitimate organics business already in operation. It was not a subterfuge. There is a powerful dispute concerning whether any of the accused in this trial ever acquired or attempted to acquire hydrogen peroxide. Moustafa Cheikho had bottles of the chemical at his home but an innocent explanation was given for this. Thirdly, there is no suggestion in the present trial that a steel suitcase was acquired or to be used to bury material although, admittedly, there is an issue about concealment of materials in the present trial.

29 Fourthly, the defendants in the London trial, or a number of them, according to the Four Corners program, conceded that they had made suicide videos but said that they did not intend to take lives, including their own. Their defence was that they were endeavouring simply to create mayhem and consternation among the public but nothing more. Their defence was that in truth no one was to be injured.

30 This situation contrasts very markedly with the present trial. It may be convenient if I quote once again from Elomar [No 27] at paragraph 33:-

The third and most important difference is that each of the accused has put a case to the jury in the present trial stressing that he was not a participant in any enterprise to undertake or do acts in preparation for a terrorist act or acts. The defence case of each man is that, even if there were some type of criminal enterprise of the kind alleged by the Crown in the indictment, he, certainly, was not a party to such an enterprise. For example, the accused Hasan gave evidence before the jury that his ordering and/or collection of chemicals was undertaken innocently, at the behest of another man who he believed was endeavouring to raise money to send funds overseas to Muslim charities. Hasan's evidence was that his involvement in the ordering of laboratory equipment was to help another friend establish or enlarge an organic products business. None of the other accused gave evidence. But the case of Elomar, Jamal and Khaled Cheikho fastened, to one degree or another, upon the evidence given by Hasan. Moustafa Cheikho's case was simply that he had no involvement in any such criminal conspiracy. Each accused argued that the Crown had simply failed to prove beyond reasonable doubt that he was a participant in the alleged criminal conspiracy. The defence case was placed strongly and unequivocally before the jury in the closing submissions of all counsel.

31 Those observations have equal force in relation to each of the present applications.

32 Turning to Mr Lange's points, I would make these specific responses: First, the only point of similarity between this trial and the Khazaal trial was the report identifying Mr Houda as a solicitor in both matters. That point really leads nowhere in my opinion. The jury would well understand the necessarily independent status of solicitors, an independence entirely divorced from the guilt or innocence of their clients.

33 Secondly, as to the American article appearing on 25 September 2009, it simply does not advance the situation further and certainly not, in my view, to the extent argued by Mr Lange. Of course, as Mr Lange fairly conceded, the American arrests had no connection to the present trial but, secondly, they are, in my view, so divorced in content from the present trial that any publicity concerning them is likely to have had minimum impact, if any impact at all, on any juror who may have seen or read the article.

34 I accept that there are similarities, but the differences are important. The arrests relate to events on the other side of the world. They involve an Afghan man, who had been trained in explosives by al-Qaeda. They involve “cooking up” explosives in a hotel room. They involve the finding of explosive residue in that hotel room. None of that type of thing is involved here at all.

35 I accept, however, Mr Lange's submissions that the fact that potentially prejudicial publicity does not relate to a particular accused is not necessarily determinative of a discharge application. Ordinarily, it may well be determinative, but exceptional circumstances may dictate otherwise.

36 In Re K, which was an application for a stay, not a discharge application, the stay had been refused by the trial judge. The Court of Criminal Appeal, in a judgment delivered by the Court, held in the unusual circumstances of that matter that the trial judge had fallen into error. The nature of the problem appears from the judgment of the Court, in paragraphs 3 and 4:-

“Prior to the jury being empanelled the appellant made an application that the trial be vacated and that the proceedings be stayed temporarily. The basis of the application was that the appellant contended that because of the recent unprecedented publicity which had attended a series of trials and subsequent sentencing of a number of youths of Lebanese origin for sexual assaults upon young Anglo-Saxon females there was a risk of prejudice to him such that he may not have a fair trial. Three such trials had been held and were connected in that some of the accused were in two or more of the trials.
It followed on the appellant's submissions that it would not be in the interests of justice to proceed at this time. It was common ground that the allegations against the appellant are quite unrelated to the series of allegations which arose in the previous trials, however, the appellant identified a number of features that could, superficially at least, convey the impression that this trial was part of that series of connected trials."

37 Later, their Honours said at paragraph 11, in identifying the error in the trial judge's approach:-

“While we would not have considered his Honour's statement as involving the taking into account of an irrelevant consideration, we do consider that his Honour erred in finding that it would be wrong to grant a stay unless the matter of prejudice was directed specifically at the accused. We are of the opinion that in circumstances where there has been extensive ventilation in the media of the backgrounds of a number of persons convicted for gang rapes in Sydney's west, a person of the same country of origin and the same religion charged with committing a like offence might in the minds of a jury be prejudiced."

38 Finally, it is necessary to make reference to paragraph 18 of the decision where the Court explained why it proposed to grant a stay. The Court said:-

“Although we have not found this matter to be without difficulty, we consider that the media coverage and the interest which has been exhibited by members of the public, both as to the trials to which we have referred and to the sentences imposed upon the convicted persons, has demonstrated such a degree of outrage in respect of the commission of such crimes that there are unacceptable risks to the holding of a fair trial that a person from the same country of origin, charged with having committed a like offence in the same part of Sydney, might be branded or seen, by reason of his racial origin and the nature of the offence, to be connected with those other offences."

39 The extensive and unprecedented publicity referred to by the Court in that decision is at a very far remove from the facts in the present applications.

40 It is not insignificant, in my view, to note that the Court in Re K merely granted a stay for a very short period of time to enable those matters to become less intensely publicised by way of media focus. So, as I say, the stay that was granted, even in that exceptional case, was for quite a short period of time.

41 I have come to the conclusion that there is nothing in the Four Corners program, or in the articles handed to me by Mr Lange that would warrant a discharge of the jury. I am perfectly satisfied that there is no risk of an unfair trial in the present situation. The matters relied upon fall well short of the test of necessity. In addition, this jury has been instructed on a number of occasions to determine the issues in the trial solely on the basis of the evidence before them. The jury has been instructed to put out of its collective mind any publicity relating to any other terrorist trial or to events of a terrorist kind, whether occurring overseas or in Australia. As I said in an earlier judgment, it is my firm belief that the present jury is a jury that has taken all those instructions to heart.

42 I remain of the view that there is nothing in the program or the publications the subject of this application that will deter the jury from acting with complete integrity and honesty in accordance with the oath or affirmation each juror took when the jury was empanelled. I have no doubt that this material, even if it were seen or read, will be simply put to one side. Even as these reasons are being delivered, I have no doubt the jury is carefully considering the evidence in the trial, the submissions of counsel and the directions of law I have given. I am confident the jury will simply not allow any other matter to divert it from the carrying out of its duty fairly and impartially.

43 For these reasons, I decline to order a discharge of the jury on either of the suggested bases.

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