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7
Court of Criminal Appeal 3 September 2002

Re K

[2002] NSWCCA 374

Sexual offencesPublic order & justice offences
CRIMINAL LAW APPLICATION FOR STAY OF TRIAL PREJUDICE INTERESTS OF JUSTICE

Citation: Re K [2002] NSWCCA 374
Court: NSW Court of Criminal Appeal
Date: 3 September 2002
Judge(s): Beazley JA, Sully J, Simpson J

Background

The appellant, a 17-year-old of Lebanese origin and Muslim faith, faced two charges in the District Court, including a charge of sexual assault under s 61J of the Crimes Act 1900 (NSW). His trial was listed to commence on 2 September 2002 before Finnane DCJ, who had also presided over a series of high-profile gang rape trials involving youths of Lebanese origin.

Before the jury was empanelled, the appellant applied to have his trial vacated and temporarily stayed. He argued that intense and widespread media coverage of the other gang rape trials and the subsequent sentencing of those convicted created an unacceptable risk that a jury would be prejudiced against him, notwithstanding that the allegations against him were entirely unrelated to those other cases.

Finnane DCJ refused the application. The appellant sought leave to appeal that refusal to the Court of Criminal Appeal.

  • Whether the trial judge applied the correct legal test when refusing the stay, specifically whether the "interests of justice" standard (applicable to pending trials) was applied rather than the stricter standard from R v Glennon (applicable after conviction)
  • Whether the trial judge erred by finding that a stay was only appropriate where the prejudice complained of was directed specifically at the accused, rather than arising from its connection to other proceedings
  • Whether, if error was established, this Court should exercise its own discretion to grant a temporary stay

Decision

The Court of Criminal Appeal accepted that the correct test for a stay application in respect of a pending trial is what the interests of justice require, including whether there is a real risk that the accused may not receive a fair trial. This is a less demanding standard than that applied in R v Glennon, which concerned whether an accused had actually been denied a fair trial after conviction. The Court was not ultimately satisfied that the trial judge had definitively applied the wrong test, given the brevity of his reasons.

However, the Court found that the trial judge had erred in a different respect. His Honour had reasoned that a stay would only be appropriate where the prejudice complained of was directed specifically at the accused and not where it arose from separate trials that did not concern him. The Court of Criminal Appeal disagreed: where extensive media coverage of other trials has generated public outrage, a person sharing the same country of origin and religion and charged with a like offence may, in the minds of a jury, be improperly linked to those other cases. That risk of prejudice did not need to be personally directed to enliven the stay power.

Having identified error in accordance with the principles in House v R, the Court exercised its own discretion. It weighed the significant similarities between the appellant's circumstances and those of the other trials, including his background, the nature of the charges, the same judicial officer, the same geographical area, the same approximate time period, and the presence of eight media representatives at the commencement of the trial. The Court acknowledged the genuine difficulty of the question and noted that anticipated appeals in the other matters might attract further intense media attention in coming months, which could make an adjournment counterproductive. Nonetheless, it concluded that a short temporary stay to allow media focus to subside would materially reduce the risk of prejudice.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Order of the trial judge refusing the temporary stay is set aside
  • The trial of the appellant is stayed temporarily
  • The matter is to be re-listed before the Registrar of the District Court with a view to fixing a trial date not before the conclusion of the sentencing of the person known as "Y" on 11 October 2002

Key Takeaways

  • The correct test for a temporary stay of a pending criminal trial is what the interests of justice require, including whether there is a real risk to the fairness of the trial. This is distinct from the post-conviction standard in R v Glennon, which requires demonstration that a fair trial was not in fact received.
  • Prejudice arising from media coverage of other trials can ground a stay application even where the prejudice is not directed specifically at the accused. The connection between the accused and the other proceedings need only create a real risk in the minds of a jury.
  • A trial judge's refusal of a stay application is a discretionary decision and will only be overturned on appeal if error is established in accordance with the principles in House v R (1936) 55 CLR 499.
  • The Court of Criminal Appeal acknowledged the difficulty of the balancing exercise, noting that anticipated appeals in related high-profile matters might generate further media coverage and potentially negate the benefit of a short adjournment.
  • In granting the stay, the court identified a combination of circumstantial similarities as collectively capable of creating unacceptable risk, including shared ethnicity, religion, locality, the nature of the offences, the presiding judge, and the presence of significant media interest at the commencement of trial.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61J (sexual assault), s 90A

Cases
- R v Compston (unreported, NSWCCA, 22 April 1993)
- R v Brewer [2000] NSWCCA 488
- R v LMW [1999] NSWSC 1109
- R v Glennon (1992) 173 CLR 592
- House v R (1936) 55 CLR 499