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 J referred to the applicants by their initials, as did the publicity in September/October 2004.

8 The applicants’ trial was fixed to commence on 28 February 2005. On that date they applied to adjourn the proceedings in order to obtain legal representation. MSK also applied to have the proceedings adjourned by reason of continuing publicity, including material that had been published in newspapers in January and February 2005. He tendered copies of newspaper articles in support of the application.

9 The Judge adjourned the trial on 28 February for the purpose of allowing the applicants to obtain legal representation. He stood the proceedings over to 4 March 2005 upon the understanding that the jury would be empanelled on Wednesday 16 March 2005.

10 On 14 March 2005 the applicants moved on notice for orders, including that the trial be stayed and that it not be re-listed before 14 June 2005. On this occasion each was represented by senior counsel. In evidence was a folder containing extracts from reports in the print media collected by the Media Monitors organisation, together with the copies of the newspaper articles that had been tendered by MSK on the previous occasion.

11 The application was advanced before the Judge on three bases: (i) publicity relating to the applicants may reveal to a potential juror that they had been convicted of sexual offences; (ii) publicity given to the successful appeal of Bilal Skaf and his co-accused, and to the Director of Public Prosecutions’ determination not to continue the proceedings against them, may prejudice a jury against the applicants by reason of the similarity of the offences with which they were charged to the offences alleged against Bilal Skaf and his co-accused; and (iii) publicity given to a speech made by Ms Cunneen, a Crown Prosecutor, which made certain assertions relating to the conduct of criminal trials.

12 The Judge approached the application by considering whether there was a risk of prejudice to the fair trial of the applicants arising from the publicity, irrespective of whether or not the publicity related to the applicants themselves (at [24]): R v K [2002] NSWCCA 374. He considered that the material before him did not create such a risk and he refused the application. It was not submitted that his Honour applied the wrong test to the determination of the application.

13 The principles upon which this Court will intervene and allow an appeal against the discretionary decision of a trial judge refusing to adjourn proceedings are set out in Alexandroaia (1995) 81 A Crim R 286 at 290:

“Whether or not an adjournment should be granted is a matter which lies within the discretion of the trial judge. An appeal based upon the judge’s refusal to grant an adjournment is thus one against the exercise of a discretion, and it will be allowed only where it has been established that the judge has erred in the proper exercise of that discretion. There is a strong presumption in favour of the correctness of the decision, but that presumption will be overcome where it is shown that the judge has acted on some wrong principle, or has given weight to extraneous or irrelevant matters, or has failed to give weight or sufficient weight to relevant considerations, or has made a mistake as to the facts. Even if the precise nature of the error may not be discoverable, it is sufficient that the result was so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise that discretion. An appellate court may not, however, substitute its own findings of fact for those of the primary judge unless there was no evidence to support a particular finding, or the evidence is all one way or the judge has misdirected himself in relation to those facts. If the appellate court is satisfied that there has been an injustice to one of the parties as a result of the judge’s exercise of discretion, it is under a duty to review the order made” (Footnotes omitted).

14 MSK sought to challenge the decision on three grounds:

“Ground 1. The learned trial judge erred in failing to find that there was a real risk of the trial of the Applicant being prejudiced by reason of media publicity;
Ground 2A. The learned Judge erred in failing to take into account relevant matters;
Ground 2B. The learned Judge erred in taking into account irrelevant considerations and/or taking into account erroneous considerations;
Ground 3. The learned Judge failed to take into account the cumulative effect of the three areas of media articles”.

15 MAK adopted the grounds and submissions that had been filed on behalf of MSK. Senior counsel appearing on MAK’s behalf filed written submissions directed principally to ground 3 above.

16 It is convenient to deal first with ground 2, since in submissions filed in support of this ground MSK sought to identify the respects in which his Honour’s discretion was said to have miscarried.

17 The Judge noted the contents of articles published in the Sydney Morning Herald in January and February 2005 relating to the application for special leave to appeal to the High Court. He noted that the applicants had been referred to in these articles by their initials. His Honour doubted that potential jurors would recall the initials of the persons the subject of the publicity and identify the applicants in this way (at [17]). He considered that in any event any prejudice could be met by amending the indictment to charge each accused by two names instead of by three names.

18 In senior counsel’s submission, the Judge had been wrong to focus on the likelihood that potential jurors would recall the applicants’ initials. His Honour was said to have overlooked a number of features of the publicity of the earlier trial that would make it likely that jurors would associate the applicants with it such that they would know that the applicants had been convicted of sexual offences of a similar kind. These matters were set out as follows:

“(i) There were 4 brothers convicted of aggravated rape in company (gang rape) 3 of them on trial here;
(ii) All the brothers were Pakistani, Muslim and Arabic speaking sons of a Pakistani doctor,
(iii) All resided in the house in Ashfield;
(iv) The offences were committed in a bedroom of the house at Ashfield occupied by the accused;
(v) The offences were allegedly committed on young Caucasian girls who had been plied with alcohol and taken into the bedroom;
(vi) The offences involved an allegation that on[e] person had threatened the complainant with a knife.
(vii) The offences allegedly involved doors being opened and aspects of voyeuristic behaviour.
(viii) All offences are alleged to have occurred in the same period, being mid 2002.
(ix) they were prosecuted at the first trial by Margaret Cunneen.”

19 It does not seem to me that the Judge did fail to take into account the matters which might serve to link the applicants with the publicity concerning their earlier trial. Apart from a consideration of the significance of their initials, the Judge noted as other means of linking the applicants to the earlier trial the following: they are three brothers, they are charged with sexual offences that may be broadly described as “gang rape”, the offences are alleged to have occurred in a house in Ashfield, the room in which the offences are alleged to have occurred was similar in description (at [16]).

20 Senior counsel for MSK acknowledged that courts act upon the assumption that publicity fades in the public memory over time. The applicants do not seek to have proceedings on the indictment permanently stayed on the basis that the publicity surrounding their earlier conviction was of such potency as to prejudice their fair trial at any time in the future. I see no basis for contending that his Honour erred in not acceding to the application to adjourn the trial for a further period of three months because there existed a risk that jurors would link the applicants to the publicity in late 2003 surrounding their earlier trial.

21 The applicants submitted that the Judge’s factual finding was attended by error in one respect. His Honour said (at [18]):

“I believe there is much in the argument of the Crown that the major feature that would be recalled by a member of the public about the earlier proceedings is that two of the accused were unrepresented. In the present case each of the accused is represented by senior counsel and I do not think that it would occur to a juror to suspect that any of these accused were the two persons who challenged their right to cross-examine a complainant in an earlier trial. There has never been any suggestion in the reports of the earlier proceedings that the accused had outstanding matters and I do not think that there is any real risk of a juror, unprompted by any relevant information, recalling the matter or in any way linking it to the accused before the court” (emphasis added).

22 Our attention was drawn to one item of publicity, a broadcast on ABC radio of a news items on 7 January 2005. The Media Monitors report of the contents of the broadcast is in these terms:

“7 January 2005
Australian Broadcasting Corporation (ABC) News

…
A High Court judge has agreed two convicted Sydney gang rapists should have their request for an appeal against their convictions speeded up by the court.
The pair are seeking to appeal against their convictions on the grounds they were prevented from questioning their accusers in court.
Justice Michael Kirby was told that New South Wales Government laws preventing people representing themselves in sexual assault cases from cross-examining their accusers violated constitutional rights.
The two men face another trial on similar matters in late February.
Justice Kirby says given that fact, and the fact that they may have grounds for appeal, the High Court will hear their request for an appeal on February 4.”

23 The Judge was mistaken in finding that there were no reports that disclosed that the applicants had outstanding matters. The evidence disclosed one such report, a transient report in a radio news segment that was broadcast ten weeks before the trial was to commence. The force of the conclusion expressed in the passage from the judgment set out above does not seem to me to have been affected by this error. I do not consider that his Honour’s discretion miscarried on this account.

24 In written submissions it was put on MSK’s behalf that the Judge erred in taking into account the fact that the applicants had been unrepresented at the trial before Sully J. It was submitted that a fair reading of all the material could not reasonably support the view that the major feature of the publicity was that they had been unrepresented. I am not persuaded that is so. Further, the publicity in 2005 was of the applicants’ challenge to the validity of s 294A, which concerned the restrictions on the conduct of the their trial because they were unrepresented. I do not consider that his Honour erred in finding force in the submission that the major feature of the earlier proceedings that was likely to be recalled was the fact that the accused were unrepresented.

25 In written submissions it was put that the Judge was wrong to take into account assumptions about the likelihood of members of the public recalling publicity. It was put this way:

“It is submitted that there is no foundation in law or published studies to support the expressed view that members of the public have neither the ability or interest necessary to retain the minutiae of media stories over a period of more than a day or two.”

26 It is appropriate to set out what his Honour said on this issue (at [17]):

“Of course a court faced with such an application must make assumptions based upon its experience generally about what information a member of the public will be likely to retain over a not insignificant period of time as a result of media publicity given to court proceedings. I am prepared to accept that a potential juror may remember something vague about two accused persons who sought to cross-examine a complainant, were prevented from doing so by legislation, and were convicted of gang rape. However, I do not believe that, unaided by reference to the source material, that a member of the public will remember the sort of detail that is relied upon in this case, such as the fact that the offences are alleged to have occurred in a house in Ashfield. I doubt that unaided by the publications a member of the public would remember the initials of the persons involved with such clarity that he or she would identify the accused from them.”

27 The challenge to this aspect of the Judge’s reasoning was not developed on the hearing of the application. I consider that it has no merit. The Judge was invited to determine whether the media reports in evidence before him created a risk to the fair trial of the applicants. In determining the application it was necessary for the Judge to consider the impact of the publicity on prospective jurors. It is difficult to see how he could do that except by drawing inferences based on assumptions such as that which he made, having regard to the nature and extent of the publicity.

28 Before turning to the next ground, it is appropriate to deal with one discrete matter relied upon in the written submissions filed on MSK’s behalf:

“2A.3 Connections with the Skaf brother’s matters;
It is submitted that Howie, J erred in finding that there could not be any suggestion that a jury might suppose that in some way these accused were connected to the Skaf brothers or the crimes allegedly committed by them. In an article appearing in the Sydney Morning Herald on 28 November 2003 there is a clear intermingling of the allegation made against the Skaf brothers and the allegations made against these applicants in a way that suggested that they were interconnected. A similar apparent connection is made in an ABC news article of 4 February 2005.”

29 There was publicity in February 2005 following the decision not to proceed further with the charges brought against Bilal Skaf and a co-accused after their successful appeal against conviction to this Court. The Judge concluded that there was no risk that the similarities between the allegations involving Bilal Skaf and those made against these applicants might cause a prospective juror to consider that the applicants were connected to Bilal Skaf or to the crimes allegedly committed by him and his co-accused. The Judge rejected a contention that an atmosphere had been created by the publicity given to the allegations against Bilal Skaf and his co-accused such that brothers of the same religious faith charged with similar offences could not receive a fair trial.

30 Publicity concerning Bilal Skaf and his co-accused included that they were Lebanese. Publicity concerning the applicants included that they were Pakistani. In oral submissions emphasis was placed on the circumstances that the applicants, like Bilal Skaf and his co-accused, were young Muslim men who were not Caucasian and who were alleged to have sexually assaulted Caucasian girls. I consider that it was open to the Judge to find that there was no basis for concluding that a juror might consider the applicants to be connected to Bilal Skaf or to the crimes said to have been committed by him and his co-accused. I also consider that it was open to the Judge to find that the publicity surrounding Bilal Skaf was not such as to create a risk of prejudice to the fair trial of other young Muslim men for sexual offences involving Caucasian complainants.

31 In written submissions, senior counsel for MAK contended that his Honour had been wrong in stating that recent publicity surrounding Bilal Skaf had focused not so much upon the allegations made against him, but rather “on the process on the criminal justice system” (at [26]). It was submitted to have been unrealistic for the Judge to distinguish between publicity concerning procedural aspects of the trial of persons charged with “gang rape” offences, and the public attitude towards persons accused of those offences. The two considerations were said to be inextricably linked. Counsel observed that the media campaign presumes that the public is concerned with the procedural aspects of the criminal justice system because of the assumed guilt of the accused persons. His Honour’s observation that this aspect of the media campaign would more likely engender “sympathy for the complainant rather than anger toward the alleged offenders” (at [26]) was submitted to incorrectly assume that the two emotional responses were mutually exclusive. These linked complaints were not pressed in the course of oral argument. They did not, to my mind, raise any issue that the Judge’s discretion had miscarried.

32 The third basis upon which the Judge was invited to adjourn the trial arose out of the publicity given to a speech made by Ms Cunneen, a Crown Prosecutor, at the Newcastle University on Thursday 10 March 2005. The Judge observed that the speech had received significant media publicity. This included that Ms Cunneen was reported to have said that some defence advocates have “a kind of misplaced altruism that it is somehow a noble thing to assist a criminal to evade conviction”. The Judge observed that the reports of the speech conveyed that Ms Cunneen believed criminal trials in general to be defended using ambush, trickery and by waging a war of attrition on witnesses (at [31]).

33 In the Judge’s opinion, the publicity concerning the speech had no more likelihood of occasioning prejudice to the fair trial of the applicants than it might be expected to have had on the fair trial of any accused proceeding in the week commencing 14 March 2005. His Honour observed (at [32]):

“The fact that a Crown Prosecutor has this view of the criminal justice system may or may not find favour with members of the press and the public in general but it is quite incapable in my view of giving rise to a climate so prejudicial to any accused person facing trial by jury, that the trial needs to be adjourned to overcome it. The fact that these generalised comments were apparently taken up in a generalised way by the Premier of the State does not change the situation.”

34 It was submitted that his Honour was wrong to consider that the publicity did not tend to prejudice the fair trial of the applicants as young, Muslim, non-Caucasian men charged with the sexual assault of a Caucasian girl, because the Crown Prosecutor’s remarks were of a general nature. This was because the reports of the speech included remarks made by Ms Cunneen about a widely publicised “gang rape” trial. The publicity surrounding the speech, taken in association with publicity surrounding Ms Cunneen in other cases, was such as to identify her in the minds of at least some members of the public as a champion of victims of sexual assault. In some reports she was described as a Deputy Senior Crown Prosecutor, and this was likely to give her remarks about the conduct of criminal trials added weight. Her reported criticisms of the conduct of criminal trials had been taken up by the Premier. They had prompted widespread public discussion including on talkback radio.

35 The application was made on 14 March. The Judge considered the matter overnight and ruled the following day. At the commencement of proceedings on 15 March, his Honour’s attention was drawn to further publicity relating to the speech. Before publishing his judgment his Honour said this:

“I accepted during the course of argument – and I presume that it is recorded – that the material that was placed before me by way of extracts of reports in the print media was accompanied by reports of a similar nature in television and radio programs such as news and current affairs programs and talk-back radio commentaries. Although I have not referred to that fact in the course of the judgment, I accept that this was so and that judgment should be read in that light. I have been informed today that, given time, there could have been placed before me a large amount of material indicating what in fact had been said in television and radio programs in respect of the proceedings to which I have referred in the written judgment which I am about to publish.
I have also been informed that Ms Cunneen’s criticisms of the criminal justice system in general and defence counsel, in particular, have been picked up by a certain commentator, a talk-back radio program host, who has added his views to Ms Cunneen’s comments and supported them in the way that he felt appropriate. A transcript of that commentary has not been placed before me but I am prepared to accept that it has occurred, and I would have been surprised if it had not. However, for reasons I have given in the written judgment, I do not believe that the criticisms of Ms Cunneen can be seen in a way that would raise prejudice to this particular trial even if it were commented upon by other media personalities in their own inimitable style.
It seems to me, for the reasons I have given or will give in the written judgment, that those matters can be appropriately addressed by comments to the jury and I would, if asked to do so, make strong comments about criticisms that suggest that any misconduct that may have occurred in criminal trials is solely to be found on one side of the bar table. I would certainly point out to the jury that cases can be referred to where Crown Prosecutor’s have been criticised for their inappropriate conduct in criminal trials of this State and that counsel on both sides of the bar table are human, or apparently so, and that they from time to time make errors of judgment or act contrary to what might be viewed as the appropriate form of conduct in criminal proceedings.”

36 On the hearing of the application, senior counsel for MSK read an affidavit to which was annexed a summary of radio reports collected by the Media Monitors organisation in the period between 7 January and 11 March 2005. The reports related to the applicants, Bilal Skaf and Ms Cunneen. This material did not form part of the evidence that was before the Judge. The bulk of the tender was rejected, save for the summaries of broadcasts on 11 March 2005 concerning the speech. This was received in light of the fact that the Judge had been informed of its existence and that his determination of the application was made in part upon an assumption as to its nature and extent. To my mind the material does not go beyond that which was anticipated by the Judge.

37 In his published reasons, the Judge took into account that Ms Cunneen had prosecuted the trial of the applicants before Sully J, that she appeared to have a reputation in some sections of the media as a protector of sexual assault victims and that her comments had been taken up by the Premier. It does not seem to me that his Honour failed to take into account any of the matters that were urged upon us as making the reports of the speech such as to create a risk of prejudice to the fair trial of the applicants. His Honour considered that any potential for prejudice occasioned by the reports of the speech could be overcome by direction. I am not persuaded that he erred in coming to this view.

38 The final matter relied upon by the applicants as disclosing error was that the Judge considered each of the three bases of the application in turn, but that he did not come back after determining that none individually gave rise to risk of prejudice and consider whether the cumulative effect of all three was such as to create that risk. Beyond the statement of the proposition, this submission was not further developed. The Judge concluded that there was not a risk that potential jurors would associate the applicants with the persons identified as MSK and MAK who had been convicted of sexual offences in the trial before Sully J. Given this conclusion, it is not clear what cumulative effect the publicity relating to the proceedings before Sully J and the unsuccessful application for leave to appeal to the High Court by persons identified by those initials is said to have had when considered alongside the publicity associated with proceedings against Bilal Skaf and the Crown Prosecutor’s speech.

39 To the extent that there was a relevant cumulative effect arising out of the publicity of the Crown Prosecutor’s speech, the Bilal Skaf no bill determination, the special leave application made by MSK and MAK and the trial of MSK and MAK, it would seem to be its tendency to create an atmosphere inimical to the fair trial of non-Caucasian, Muslim men charged with sexual offences against Caucasian women. To my mind his Honour did address his mind to this consideration in dealing with the application. In discussing the publicity associated with Bilal Skaf his Honour said (at [25]):

“Nor do I believe that an atmosphere has been created by the publicity given to the allegations against those two persons that brothers of the same religion charged with somewhat similar offences cannot receive a fair trial”.

His Honour did not say, in terms, that in coming to this view he had also taken into account the publicity about MSK and MAK and the Crown Prosecutor’s speech. His Honour came to this view after reviewing the material that was before him on the application which related to the three topics (and making the assumptions to which he referred in the remarks set out at paragraph [35] above). I do not accept that his Honour is to be taken to have compartmentalised his consideration of the issue with which he was dealing (whether there was a risk of prejudice to the fair trial created by publicity) such that he put to one side the reports relating to the proceedings involving MSK and MAK and the Crown Prosecutor’s speech in expressing the conclusion above.

40 I did not consider that the applicants had demonstrated that his Honour’s determination was attended by error.

41 HALL J: I agree with Bell J.

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