The Queen v Rowe
[2022] NTSC 55
•19 July 2022
CITATION: The Queen v Rowe [2022] NTSC 55
PARTIES: THE QUEEN
v
ROWE, Kent
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:22131061, 22114274
DELIVERED: 19 July 2022
HEARING DATE: 8 July 2022
JUDGMENT OF: Grant CJ
REPRESENTATION:
Counsel:
Applicant:M Chalmers SC
Respondent: T Grealy
Solicitors:
Applicant:Hubber Legal
Respondent: Office of the Director for Public Prosecutions
Judgment category classification: B
Judgment ID Number: GRA2203
Number of pages: 16
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Queen v Rowe [2022] NTSC 55
No. 22131061, 22114274
BETWEEN:
THE QUEEN
AND:
KENT ROWE
CORAM: GRANT CJ
REASONS FOR DECISION
(Delivered 19 July 2022)
The accused is charged with four counts of sexual intercourse without consent. Aggravated incest is charged as an alternative to three of those counts. The trial is fixed to commence on 29 August 2022.
On 8 July 2022, the accused made application for a temporary stay of the trial for a period of at least 12 months; and an extension of interim non-publication orders which were made on 9 June 2022. The Crown opposed the application for a stay and adopted a neutral position in relation to the extension of the non-publication orders. The Australian Broadcasting Corporation (‘ABC’), Nationwide News Pty Ltd and the complainant appeared as intervenors in the application and opposed any extension of the interim non-publication orders.
The basis for the applications
The allegations against the accused may be described in broad terms as follows. The accused and the complainant are [REDACTED]. The first two counts involve an allegation of sexual intercourse without consent when the accused was 14 or 15 years of age and the complainant was seven or eight years of age. The next two counts involve an allegation of sexual intercourse without consent at or about the same time. The fifth count involves an allegation of sexual intercourse without consent when the accused was between 18 and 20 years of age and the complainant was between 11 and 13 years of age. The final two counts involve an allegation of sexual intercourse without consent when the accused was between 20 and 21 years of age and the complainant was 13 years of age.
The basis for the accused’s application is that he has been subject to intensive and prejudicial publicity concerning matters unrelated to the present charges; that publicity concerned his involvement in morally repugnant conduct likely to attract condemnation by a substantial proportion of the community, and attendant allegations that he had lied in relation to that involvement; that the events have become deeply embedded in the public consciousness as the ‘cocaine sex scandal’; and that he will not be able to receive a fair trial until sufficient time has elapsed to allow those matters to dim in the memories of prospective jurors. The adjunct to that primary submission is that there must necessarily be orders prohibiting publication of the accused’s name in relation the present charges, including publications which make no reference to the accused’s involvement in the ‘cocaine sex scandal’, because the most cursory internet search of his name discloses that connection.
The nature of the publicity
The publicity said to be prejudicial to the accused’s interests may be summarised briefly as follows.
In February 2021, various media organisations began reporting that an unspecified number of ‘political figures’ had engaged in what was described as a ‘cocaine-fuelled sex romp’ with a sex worker on the night of the Northern Territory election the previous year. It was subsequently reported that one of those political figures was a Labor Member of the Legislative Assembly, and that Member had been expelled from the Labor parliamentary caucus for being dishonest about the nature and extent of his involvement. It was also reported at or about the same time that a political staffer had resigned under pressure in relation to his involvement in the matter, again because he had provided a dishonest account of the matter.
On 23 February 2021, the accused was identified as the political staffer in question in an article published on the NT Independent website. That report identified that the accused had been forced to resign for dishonesty on the same day that the Labor MLA was expelled from caucus; that the accused had been involved in an ongoing sexual relationship with the sex worker; that in the course of that relationship the accused had sent the sex worker photographs of his penis and a painting of a dead dog; and that the accused and the sex worker engaged in text exchanges containing drug and sexual references. From that point in time, the incident was described in media reports as the ‘cocaine sex scandal’. The fact of the accused’s involvement in the matter was also referred to in articles published on the NT Independent website in March, April, June, July, November and December 2021, which were directed to different but purportedly related assertions of failures in governance.
On 8 May 2021, the NT News reported that ‘a former political staffer’ had been arrested and charged with raping a younger family member approximately two decades before. The matter was again reported by the ABC in July 2021. The accused’s name was not published at that time, presumably because legislation prohibits the identification of a person charged with a sexual offence until such time as that person has been committed for trial.
On 15 October 2021, the NT News reported that the accused had been committed to stand trial in the Supreme Court on historical sex offence charges. That report also made reference to the fact that the accused had resigned in disgrace following a ‘cocaine sex scandal’. That report was subject to the qualification that the accused had not been implicated in any criminal wrongdoing as a result of his involvement in the scandal, and there was no suggestion that he had himself used cocaine. The matter was also reported by the ABC, but without reference to the accused’s involvement in the scandal.
On 16 October 2021, an article was published on the NT Independent website which referred to the accused’s committal for trial on historical sex offences, and contained the following passage:
Rowe was forced to resign from his powerful senior adviser job in February for his involvement in the so-called ‘cocaine sex scandal’, after Michael Gunner said he lied to him about an extramarital affair with the same local sex worker Labor MLA Mark Turner was involved with.
The NT Independent revealed in February that Rowe, who is married with children, had sent lewd pictures of himself to a local ‘bondage mistress’, discussed legalising marijuana with her and painted a portrait of a dead dog as a gift for the sex worker.
The ‘cocaine sex scandal’ was again referenced in the NT Independent’s Year in Review series, including with links to the original articles. Reference was subsequently made to the incident, as part of more broad-ranging articles, during the course of February 2022. There has been no identified reporting of the accused’s involvement in the incident since that time. However, the NT Independent articles from October and February 2021 remain the second and third results of a Google search using the accused’s name as the search parameter.
The procedural history
The procedural history of the current matter may be summarised as follows.
On 12 April 2021, the complainant made a statement to police in which she alleged that the accused had sexually penetrated her on a number of occasions while she was a child. Those allegations form the basis for the offences of which the accused is now charged on indictment.
On 7 May 2021, police laid charges against the accused and the matter was mentioned in the Local Court.
On 13 October 2021, the matter was committed to the Supreme Court for trial.
On 17 March 2022, the matter was given a T2 trial listing to commence on 29 August 2022 over the objection of the accused.
On or about 23 March 2022, the complainant foreshadowed an application for authorisation pursuant to s 9(1) of the Sexual Offences (Evidence and Procedure) Act 1983 (NT) to publish or make a statement or representation at a time of her choosing which would identify her as the complainant in the charges brought against the accused.
On 9 June 2022, the Court granted that authorisation, but also made an interim non-publication order prohibiting publication of any reference to the offences including the complainant’s name and relationship to the accused, and any reference to the accused’s involvement in the ‘cocaine sex scandal’. At that same time, the Court made orders elevating the T2 trial listing to a T1 listing to commence on 29 August 2022, again over the objection of the accused.
The application for a stay of proceedings
I turn then to consider the accused’s application for a stay of the proceedings for at least 12 months.
A number of matters may be accepted at the outset of that consideration. First, there is no doubt that knowledge of the accused’s involvement in the events described as the ‘cocaine sex scandal’, the content of his communications with the sex worker, and the attendant suggestions of dishonesty and marital infidelity have the potential to influence the minds of prospective jurors in a manner prejudicial to his interests and the conduct of a fair trial. Secondly, the concern in this case is not that those reports relate to the offences with which the accused has been charged in a manner which contaminates the jury’s consideration of the evidence concerning those charges. The concern is that a juror familiar with the earlier reports concerning the ‘cocaine sex scandal’ might apprehend that the accused is a man of poor character generally and therefore more likely to have committed the offences charged, and/or that the credibility and reliability of any evidence he might give at trial must be assessed having regard to the fact that he has previously been dishonest in relation to his involvement in that earlier matter.
The principles which inform the approach by the courts to concerns of that nature are well-settled. It is accepted that in modern times it will prove difficult, if not impossible, to select 12 jurors who have heard nothing about a high profile case prior to their empanelment; see Murphy v The Queen (1989) 167 CLR 94, 99. However, the receipt of prior information about a case, and even the holding of a tentative opinion, does not mean that a juror will render a verdict other than in accordance with their oath: see The Queen v Glennon (1992) 173 CLR 592, 603, 614. Jurors have a capacity when considering evidence to ‘eschew the potential prejudicial impact of “gossip, rumour, news and opinion” whether about the accused or the subject matter of the trial’: see John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344, [104]-[111]; R v Macdonald (No 8) [2019] NSWSC 1915, [4]. That is particularly so given the availability of jury directions ameliorating the risk presented by pre-trial publicity, and the assumption that jurors will discharge their responsibilities in accordance with such directions: see The Queen v Glennon (1992) 173 CLR 592, 614. Although there is no doubt that a temporary stay should be ordered where there is an appreciable risk that the right to a fair trial has been prejudiced by pre-trial media coverage, the relevant question is whether ‘the intensity, proximity and nature of the media coverage of the particular accused or the particular circumstances or the particular crime is such as to occasion the risk of unfairness to the accused so as to prejudice the accused’s right to a fair trial’: see R v Yuill (1993) 69 A Crim R 450, 454.
Once empanelled, the jury will be directed not to conduct their own research in relation to the case and the assumption is that they will not. The relevant focus in this matter is on whether prejudicial material concerning the accused will already be in the minds of those prospective jurors prior to empanelment. It is relevant to that assessment that almost half of the media reports relied on by the accused to found the assertion of prejudicial effect were published in February 2021. The bulk of the articles published in February 2021 were directed to the involvement of the Member of the Legislative Assembly and the government’s handling of the allegations. Only 11 of the articles relied upon were published in the course of 2022, and 10 of those 11 articles were published only on the NT Independent website. With the exception of those two reports published on 23 February and 16 October 2021 which have been either described or extracted above, the references to the accused in most of the reports are peripheral in nature.
There has been no reporting on the matter which would link the accused to the ‘cocaine sex scandal’ since February this year. That is almost five months ago now. The last report concerning any aspect of the matter was on 24 March 2022. A period in excess of five months will have elapsed between that time and the day on which the trial is currently scheduled to commence. Even allowing for the fact that there was significant public interest in the story at the time it came to light, and the titillating nature of the subject matter, it cannot be said that the previous reports continue to have a contaminating effect by reason of either their immediacy or their intensity. Experience would suggest that the details of such matters are relatively quickly forgotten. It is unlikely that any potential juror who might be summoned for jury service in August 2022 would have the details of the matter committed to their memory or, subject to the question of non-publication which I will address shortly, that they would have any reason to reacquaint themselves with the reporting of the incident between now and the trial.
Counsel for the accused has placed some reliance on the vacation of the trial and the effective stay of proceedings in R v Lehrmann (No 3) [2022] ACTSC 145. Subsequent events have disclosed that the Court in that matter has determined that a delay of something slightly more than three months between the publication in question and trial will be sufficient to allow the prejudicial impact of that publication to dissipate. It is a matter of some notoriety that the publication in that case was made by a high-profile journalist to a live television audience of 850,000 viewers and amounted to an unqualified endorsement of the credibility and reliability of the complainant’s account in relation to the very allegations with which the accused is charged. The other cases on which the accused relies in pressing the application for a stay are also distinguishable on the facts.
The matter of R v Macdonald (No 8) [2019] NSWSC 1915 dealt with circumstances in which in the month leading up to the trial of the accused for conspiracy there had been intense reporting on the conduct of a public inquiry by the Independent Commissioner Against Corruption into the conduct of various officials and members of the New South Wales branch of the Labor Party. The Court held that the ‘tenor, content and intensity of journalistic coverage and commentary’ of the proceedings gave rise to a real risk that the trial of the accused, which was listed to commence almost exactly one month from the commencement of that reporting, would be unfairly prejudiced. That publicity included commentary by the Prime Minister and the New South Wales Premier, and references to the fact that two of the accused were ‘corrupt former members of the Labor Party’, ‘disgraced’ and/or ‘jailed former ministers’. The Court concluded that although a proper basis had been made out to defer the trial of the accused, it was satisfied that a temporary stay of five months would create a sufficient measure of distance from the currency and intensity of the media attention.
In the matter of Re K [2002] NSWCCA 374, the Court considered circumstances in which a male youth of Lebanese origin and Muslim faith had been committed for trial on two charges. Prior to the commencement of his trial there had been a significant degree of publicity concerning a series of trials and sentencing proceedings for several youths of Lebanese origin for sexual assaults against young Anglo-Saxon females. There were similarities between the charges brought against the accused and the circumstances of those offenders who had been convicted in the other trials, but the allegations were unrelated. The media coverage of those unrelated matters was ongoing and anticipated to continue until the conclusion of the sentencing proceedings. As a consequence, the Court of Criminal Appeal granted a stay of one month to allow those proceedings to conclude.
As matters presently stand in this case, the intensity, proximity and nature of the media coverage to date in this matter does not warrant the vacation of the trial presently listed to commence on 29 August 2022 or a temporary stay of the criminal proceedings against the accused.
The application for an extension of the non-publication orders
I turn then to consider the separate but related question of whether the non-publication orders should be continued in force until the commencement (or conclusion) of the trial. That application is made pursuant to s 57 of the Evidence Act 1939 (NT) and, or in the alternative, pursuant to the inherent jurisdiction of this Court.
The operation of s 57 of the Evidence Act has been considered by the Court of Appeal on a number of occasion, including most extensively in Australian Broadcasting Corporation v L & Tudor Stack [2005] NTCA 7 and Nine Network Australia Pty Ltd v McGregor & Ors (2004) 183 FLR 44. So far as is relevant to this application, the section provides that ‘[w]here it appears to any Court … that for the furtherance of, or otherwise in the interests of, the administration of justice, it is desirable to prohibit the publication of the name of any party or intended party to, or witness or intended witness in, such proceeding … the Court may, either before or during the course of the proceedings or thereafter, make an order … forbidding the publication of the name of any such party or witness’.
As I have previously observed in The Queen v Bradley [2020] NTSC 23, that power is constrained by a number of matters. First, it is limited to prohibiting the publication of the name of a party to a proceeding or details which might identify that party. It does not extend to a general prohibition on the publication of other details. Secondly, an order forbidding the publication of the name of a party to a proceeding before the Court can only be made if it is desirable to do so in the furtherance of, or otherwise in the interests of, the administration of justice. Thirdly, the power must be exercised judicially.
In this context, the phrase ‘the interests of the administration of justice’ is primarily directed to ensuring that the publication of a party’s name does not create a risk that the trial of the party would be unfair, or of the party suffering undue prejudice or undue hardship in the party’s defence or in the conduct of the case: see Advertiser Newspapers Ltd v Bunting & Ors [2000] SASC 458, [19].
This Court also has an inherent jurisdiction to make a suppression order forbidding the publication of matters, not limited to the name of a party, if such an order is in the interests of the administration of justice. The test of whether a suppression order forbidding the publication of material should be made in the inherent jurisdiction is a stricter test than that required by s 57 of the Evidence Act. It is whether such an order is reasonably necessary to secure the proper administration of justice: see Australian Broadcasting Corporation v L & Tudor Stack [2005] NTCA 7; Hogan v Australian Crime Commission (2010) 240 CLR 651, [31]; C7A/2017 vMinister for Immigration and Border Protection (No 2) [2020] FCAFC 70, [14]; J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10. The reason for the stringency of this test is that it is well‑established that the principle of open justice is one of the most fundamental aspects of the system of justice in Australia, and the conduct of proceedings in public is an essential quality of an Australian court of justice: see John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344, 352.
Whether in the exercise of statutory or inherent jurisdiction, an order prohibiting the publication of material in relation to court proceedings will only be made in exceptional circumstances: see John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, 476-477; Nationwide News Pty Ltd v Binsaris [2019] NTCA 4, [30].
The basis for the application in this case is that further reporting of the charges which have been brought against the accused between this point in time and the time of the trial is likely to draw attention to the accused’s involvement in the ‘cocaine sex scandal’ and the prejudicial aspects of that publicity, even if the reporting from this point in time is properly restricted to the current charges and makes no reference to those matters. The application is not for a pre-emptive order on the apprehension that a contempt by publication is likely to occur. The application is predicated on two quite different apprehensions. The first is that prospective jurors will still have a recollection of previous reports of the accused’s involvement in the ‘cocaine sex scandal’ which any further reporting of the charges against the accused will refresh. The second apprehension is that if reports of the charges against the accused are published in the period leading up to the trial, contemporary social media usage is such that links or searches will inevitably be made which will bring the previous reporting of the accused’s involvement in the ‘cocaine sex scandal’ to light. The first of those apprehensions should not be accepted, but the second apprehension is most likely well-founded.
It is no doubt true to say that the Court is entitled to presume that any coverage will be lawful, fair and accurate rather than sensationalist, distorted or prejudicial to the conduct of a fair trial. There would be no valid concern if the only potentially prejudicial material in question related to the subject matter of the present charges, and the reporting of that subject matter was made with proper regard to the principles of sub judice contempt. However, the danger here, unlike examples mooted such as the trial of The Queen v Rolfe, relates to material concerning unrelated incidents which has the clear potential to contaminate the minds of potential jurors and cause prejudgement in relation to the accused’s general character and credibility. While it is also no doubt correct to assume that a juror once empanelled will not act in contravention of the trial judge’s directions, that assumption and the ordinary directions will not necessarily address a prejudgement concerning character or credibility which has taken root prior to empanelment. The risk and danger in the present case is elevated and intensified by the fact that both the previous incidents and the present charges involve allegations of sexual misconduct which an overwhelming proportion of the community would regard as morally repugnant, and that the accused’s preparedness to be dishonest in relation to such conduct will likely be the fundamental question on which the jury’s verdicts will turn.
The making of non-publication orders would not be futile in addressing that potential prejudice. The principal concern for this purpose and at this point in time is not that the material was previously published. For the reasons I have described, the principal concern is that further publication of reports concerning the charges which have been brought against the accused will re-enliven a general community consideration of the prejudicial material previously published. The making of non-publication orders in the terms sought will substantially, if not entirely, allay that risk. Nor would the making of non-publication orders in this case simply overlay an already existing statutory reporting restriction: cf Application by John Fairfax Publications Pty Ltd re MSK, MAK, MM K and MRK [2006] NSWCCA 386, [29]. Although s 50 of the Youth Justice Act 2005 (NT) arguably operates to prohibit the publication of any information which might identify the accused as a defendant in the prosecution of offences allegedly committed while he was a youth, it can have no application to those offences alleged to have been committed when he was between the ages of 18 and 21.
Accordingly, the following orders are made:
I.The application for the vacation of the current trial dates and a temporary stay of proceedings for 12 months is refused.
II.The non-publication orders made on 9 June 2022 are extended until 10 am on 29 August 2022.
III.The parties have liberty to apply in relation to any variation to the terms of the non-publication orders made on 9 June 2022.
IV.With the exception of the orders made, the publication of these Reasons for Decision is restricted to the parties to the criminal proceedings and the intervenors in this application until further order.
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