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Court of Criminal Appeal 17 June 2005

Regina v WK

[2005] NSWCCA 222

Sexual offences
RISK OF PREJUDICE

Citation: Regina v WK [2005] NSWCCA 222
Court: Court of Criminal Appeal, New South Wales
Date: 17 June 2005
Judge(s): Studdert J, Howie J, Latham J

Background

The applicant faced multiple counts of sexual offences against two complainants, both under sixteen years of age at the time of the alleged conduct. The offences were said to have occurred between July 1993 and July 1994, and the matter was committed to the District Court for a defended hearing listed for 6 June 2005.

The applicant led a religious community in the Nowra district known as the Order of Saint Shabelle. In late March 2005, a Channel 9 "A Current Affair" program broadcast allegations that the applicant and members of his community had systematically defrauded Centrelink by obtaining social security benefits to which they were not entitled. The broadcast aired approximately three months before the trial date. A film crew had visited the premises with the applicant's cooperation, after the applicant made clear the pending charges were not to be discussed.

The applicant applied to District Court Judge Shadbolt for a temporary stay of three to six months. He argued the broadcast created a risk of jury prejudice and that a Centrelink investigation, said to have been prompted by the program, should be allowed time to resolve before the trial proceeded. Judge Shadbolt refused the stay, and the applicant sought leave to appeal that refusal to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act.

  • Whether leave to appeal should be granted under s 5F of the Criminal Appeal Act against an interlocutory refusal of a temporary stay, where the trial judge had not certified the matter as suitable for appeal.
  • Whether Judge Shadbolt erred in the exercise of his discretion by refusing the temporary stay.
  • Whether the television broadcast created a sufficient risk of prejudice to justify delaying the trial.
  • Whether the possibility of a Centrelink investigation or prosecution of a defence witness provided additional grounds for a stay.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Because the trial judge had not certified the interlocutory judgment as appropriate for appeal, the applicant required the Court's leave. Leave is available only where the decision is attended by sufficient doubt to warrant argument, or where the interests of justice require the Court's intervention.

The court reviewed the refusal as an exercise of discretion, applying the principles in House v the King (1936) 55 CLR 499. A strong presumption of correctness attaches to such decisions, and error must be shown in the form of a wrong principle, reliance on irrelevant matters, failure to weigh relevant considerations, or a result so unreasonable that failure to exercise discretion properly can be inferred.

The court addressed each of the applicant's three grounds. On the publicity ground, it found the broadcast fell well short of the threshold established in Re K (2002), where extensive and widespread media coverage of a racially and religiously charged nature had occurred within days of trial. In contrast, the Channel 9 program was a single broadcast some three months before the trial, concerned with social security fraud rather than sexual misconduct, and had no direct connection to the charges before the court. The court accepted Judge Shadbolt's common-sense reasoning about the transient effect of such programs on viewers.

On the Centrelink investigation ground, the court found the evidence of any actual investigation was questionable. It also noted that a longer delay would, if anything, increase the likelihood of related prosecutions arising before trial, making the case for confirming the trial date more compelling rather than less. The court also rejected the submission that Judge Shadbolt impermissibly took into account the applicant's own role in bringing the publicity about by cooperating with the program's producers.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A single television broadcast about matters unrelated to the charges, aired three months before trial, was insufficient to establish the kind of widespread and sensationalised publicity required to justify a temporary stay under the principles in Re K.
  • Under s 5F of the Criminal Appeal Act, leave to appeal an interlocutory ruling is only granted where the decision is attended by sufficient doubt, or where the interests of justice require intervention. Where a trial judge has not certified the matter as suitable for appeal, that threshold applies with full force.
  • The discretionary nature of a stay application means the appellate court applies the House v the King standard. An applicant must identify a specific error of principle, a failure to weigh relevant considerations, or a result so unreasonable as to imply a failure of discretion.
  • Refusing the stay on the basis that delay might increase the risk of related proceedings arising was a valid and indeed compelling reason to confirm the trial date rather than vacate it.
  • In dismissing the appeal, the Court confirmed that a trial judge is entitled to apply common sense to the question of how long a television broadcast is likely to remain in a juror's memory, particularly in the absence of evidence about viewer retention.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act (NSW), s 5F

Cases:
- R v Carter, Court of Criminal Appeal, 5 September 1995 (unreported)
- R v Steffan (1993) 30 NSWLR 633
- R v Matovski (1989) 14 NSWLR 720
- R v Houlton (1999) NSW CCA 100
- House v the King (1936) 55 CLR 499
- R v Alexandroaia (1994) 81 A Crim R 286
- Re K (2002) NSWCCA 374