Regina v MAK; Regina v MSK - [2005] NSWCCA 98

CITATION:
Regina v MAK; Regina v MSK [2005] NSWCCA 98

HEARING DATE(S): 18/3/05

JUDGMENT DATE:

24 March 2005

JUDGMENT OF:
Barr J at 1; Bell J at 2; Hall J at 41

DECISION:
Application for leave to appeal refused

CASES CITED:
Alexandroaia v R (1995) 81 A Crim R 286
R v K [2002] NSWCCA 374

PARTIES:
Regina (Respondent)
MAK & MSK (Applicants)

FILE NUMBER(S):
CCA 2003/158 and 2003/3

COUNSEL:
K McKay (Crown)
MJ Ierace SC (MAK)
MC Ramage QC (MSK)

SOLICITORS:
S Kavanagh (Respondent)
S E O'Connor (Applicants)

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
2003/158 and 2003/3

LOWER COURT JUDICIAL OFFICER:
Howie J

2003/158 in the Court below
2003/3 in the Court below

BARR J
BELL J
HALL J
Thursday 24 March 2005

Regina v MAK

Regina v MSK

Judgment

1 BARR J: I agree with Bell J.

2 BELL J: The applicants sought leave to appeal against the interlocutory judgment of Howie J (the Judge) given on 15 March 2005 by which his Honour refused to adjourn their trial. On 18 March 2005 their application was heard and leave was refused. These are my reasons for joining in that order.

3 The applicants are brothers. They and another brother, MMK, are jointly charged with four counts of aggravated sexual assault. The offences are alleged to have occurred on 14 June 2002 at the applicants’ home in Ashfield. The applicants and MMK are alleged to have had non-consensual sexual intercourse with the same complainant.

4 Before turning to the grounds of the application I will refer to some aspects of history that are common ground. The applicants, MMK and a fourth brother were charged with sexual offences involving other complainants, which occurred in the family home at Ashfield. Trials in relation to these matters were conducted in late 2003 before Sully J. The applicants were unrepresented and the conduct of the proceedings by them was subject to the provisions of s 294A which had been recently introduced into the Criminal Procedure Act 1986. Justice Sully separated the applicants’ trial from that of their co-accused. Each was convicted and sentenced to lengthy terms of imprisonment. Considerable publicity surrounded the proceedings in late 2003.

5 The applicants appealed against their conviction to this Court, contending that s 294A was invalid. Their appeal was dismissed on 6 September 2004. Thereafter they sought special leave to appeal from that determination to the High Court of Australia.

6 The subject trial was listed before Simpson J on 25 October 2004. On that day her Honour adjourned the trial on the applicants’ motion by reason of the potential prejudice arising out of extensive media publicity particularly relating to an incident at the Kariong Detention Centre that was said to have involved MMK.

7 The applicants’ special leave application was determined in early February 2005. Special leave was refused. This determination was the subject of publicity, which referred to the applicants by their initials. The publicity surrounding the proceedings before Sully…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWCCA 98
Decision Date: 24 March 2005

CaseChat Overview and Summary

MAK and MSK, brothers who had previously been convicted of sexual offences, applied for leave to appeal against the decision of Howie J, who had refused to adjourn their trial for aggravated sexual assault. The application was dismissed by the Court. The applicants had been convicted previously of sexual offences with other complainants, and they argued that the publicity surrounding those convictions, along with other recent publicity, might prejudice their current trial. The Court found that there was no error in the trial judge's decision not to adjourn the trial. The publicity did not create a real risk of prejudice to the applicants' right to a fair trial. The Court held that the judge was entitled to make assumptions about what information the public would remember over time and that the potential prejudice could be mitigated by appropriate directions to the jury.

Orders