Citation: Regina v MAK; Regina v MSK [2005] NSWCCA 98
Court: NSW Court of Criminal Appeal
Date: 24 March 2005
Judge(s): Barr J, Bell J, Hall J
Background
Two brothers (referred to as MAK and MSK) faced trial in the Supreme Court on four counts of aggravated sexual assault, alleged to have occurred at their family home in Ashfield in June 2002. The applicants had previously been tried before Sully J in late 2003 on separate sexual offence charges involving other complainants, at which time they were unrepresented and were convicted, receiving lengthy prison terms. Those earlier proceedings attracted substantial media coverage.
Following unsuccessful appeals to the Court of Criminal Appeal and a rejected application for special leave to appeal to the High Court, the applicants sought to adjourn their pending trial. They argued that cumulative media publicity surrounding their earlier convictions, related proceedings involving another group of co-accused, and a public speech by a Crown Prosecutor had created an atmosphere so prejudicial that a fair trial was impossible in the short term.
Howie J refused the adjournment application, and the applicants sought leave to appeal against that interlocutory ruling. The Court of Criminal Appeal heard the application on 18 March 2005 and refused leave on the same day, with Bell J (Barr and Hall JJ agreeing) delivering reasons on 24 March 2005.
Legal Issues
- Whether Howie J erred in his exercise of discretion in refusing to adjourn the trial
- Whether the publicity about the applicants' earlier convictions created a real risk of prejudice to a fair trial
- Whether publicity surrounding unrelated but similar proceedings (involving Bilal Skaf and co-accused) prejudiced the applicants by association
- Whether a Crown Prosecutor's public speech created a further source of prejudice
- Whether the cumulative effect of all three categories of publicity gave rise to a risk of prejudice, even if each category did not individually
Decision
Bell J identified the applicable test from Alexandroaia v R (1995): an appellate court will only interfere with a trial judge's refusal to grant an adjournment where the judge acted on a wrong principle, gave weight to irrelevant matters, failed to give weight to relevant considerations, made an error of fact, or reached a result so unreasonable or unjust as to infer a failure to properly exercise the discretion. The presumption in favour of the correctness of the primary decision is strong.
On the question of publicity about the applicants themselves, Howie J had doubted that jurors would recall and connect the applicants' initials to any earlier media reports, and considered that any residual risk could be addressed by amending the indictment to use two names rather than three. Bell J found no error in this approach. The applicants had not identified any specific feature of the publicity that overcame the trial judge's reasoning, and the submission that jurors would make the relevant connection was not sufficiently established.
Regarding the Bilal Skaf-related publicity and the Crown Prosecutor's speech, the trial judge had considered whether the material, taken together, had created an atmosphere inimical to a fair trial for non-Caucasian Muslim men charged with sexual offences against Caucasian women. Howie J concluded it had not. Bell J rejected the submission that the judge had compartmentalised his consideration: the conclusion that no such atmosphere had been created was reached after reviewing all three categories of material.
On the cumulative effect ground, Bell J noted the submission was not developed in any detail beyond its bare assertion. Given that Howie J had found no real risk arising from the applicants' own publicity, there was no clear basis for contending the cumulative effect with the other two categories created such a risk. No error was established in his Honour's overall determination, and leave to appeal was refused.
Orders Made
- Application for leave to appeal refused
Key Takeaways
- The Court of Criminal Appeal confirmed that a trial judge's refusal to adjourn proceedings is a discretionary decision attracting a strong presumption of correctness, and will only be overturned on appeal where a specified error or manifest injustice is demonstrated.
- A real risk of prejudice from pre-trial publicity is the relevant test when assessing whether an adjournment is warranted, and that test applies regardless of whether the publicity relates directly to the accused or to related proceedings.
- No error was established merely because the trial judge expressed doubt that jurors would recall and connect an accused's initials to earlier media coverage, particularly where the judge considered practical measures such as amending an indictment could address any remaining risk.
- In assessing cumulative prejudice, an appellate court will not draw an inference of error simply because the trial judge did not expressly state that he had considered each category of publicity alongside the others, provided the overall reasoning demonstrates engagement with all the material.
- Bare assertion of cumulative prejudice, without developed argument identifying how separately insufficient categories of publicity together create a real risk, is unlikely to displace the trial judge's conclusion.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 294A
Cases:
- Alexandroaia v R (1995) 81 A Crim R 286
- R v K [2002] NSWCCA 374