Citation: Regina (Cth) v Rodney Stephen Adler [2005] NSWSC 44
Court: Supreme Court of New South Wales, Common Law Division
Date: 8 February 2005
Judge(s): Dunford J
Background
The accused faced criminal charges under sections 997 and 999 of the Corporations Act 2001, relating to the use of HIH Insurance Ltd funds for the purchase of HIH shares. The collapse of HIH in 2001, with debts of approximately $5.3 billion, had been one of Australia's largest corporate failures and had prompted a federal Royal Commission whose findings were widely reported.
Prior to the criminal trial, the accused had been the subject of civil proceedings brought by ASIC for breaches of his duties as a director of HIH. Those proceedings resulted in a fine and a 20-year ban from acting as a company director. The accused had also previously sought a permanent stay of the criminal proceedings on double jeopardy grounds, which was refused by James J, and that refusal was upheld by the Court of Criminal Appeal and the High Court.
The criminal trial was scheduled to commence on 7 February 2005, with jury empanelment to follow on 14 February. On the first day of proceedings, the accused applied for an adjournment and a temporary stay on the basis that media coverage published that morning was prejudicial and risked preventing a fair trial.
Legal Issues
- Whether pre-trial media coverage was sufficiently prejudicial to warrant an adjournment or temporary stay of the criminal proceedings.
- Whether strong judicial directions to the jury, rather than delay, were a sufficient remedy for any risk of prejudice arising from that coverage.
- Whether the characterisation of the accused as a "disgraced businessman" in media reports constituted unfair and prejudicial reporting.
Decision
Dunford J surveyed the published material tendered on the voir dire (a preliminary hearing to determine admissibility or procedural matters). The coverage included references to the commencement of the trial, the nature of the charges, the prior civil findings against the accused, the double jeopardy application, and passing references to HIH's collapse and other directors. Some reports incorrectly stated that former HIH chairman Ray Williams was expected to give evidence against the accused.
His Honour applied the principles set out in Murphy v The Queen (1989) 167 CLR 94, which establish that a juror's prior knowledge of circumstances giving rise to a trial does not, of itself, deprive the accused of an impartial jury. The court noted that an accused's right to a fair trial must be balanced against the public interest in prompt prosecution and the orderly management of court lists. His Honour also drew on R v Yuill (1993) 69 A Crim R 450, which addressed the same principles in the context of white-collar crime rather than crimes of violence.
The court accepted that the collapse of HIH was a matter of significant public interest and that media reporting of the trial's commencement was neither surprising nor inappropriate. The description of the accused as "disgraced" was found to be a fair characterisation given the established civil findings. As to references linking the civil proceedings to the criminal charges, Dunford J acknowledged some factual overlap but found they were not, in the circumstances, sufficiently prejudicial to justify delay.
His Honour concluded that strong jury directions, including directions to disregard extraneous material and to stand aside if they could not bring an unprejudiced mind, would be sufficient to ensure a fair trial. He noted that any additional delay would not guarantee better conditions, as jurors would likely still recall the published material in three to six months. The application was refused.
Orders Made
- The application for an adjournment and temporary stay of proceedings was refused.
Key Takeaways
- Pre-trial publicity does not automatically entitle an accused to an adjournment or stay of criminal proceedings; the court must weigh the fair trial right against the public interest in expeditious prosecution.
- In dismissing the application, the Supreme Court confirmed that strong judicial directions to a jury, combined with invitations to jurors to stand aside where they cannot be impartial, will ordinarily suffice to address prejudice arising from media coverage.
- The principles in Murphy v The Queen apply to white-collar crime matters, with R v Yuill recognised as particularly relevant where corporate misconduct is at issue rather than offences likely to inflame strong public emotion.
- A description of a director who has been banned and fined following civil findings against them as "disgraced" was held to be a fair and accurate characterisation, not prejudicial media excess.
- Prior delays in bringing proceedings to trial, including those caused by the accused's own interlocutory applications, are a relevant factor in assessing whether a further adjournment is warranted.
Legislation and Cases Referenced
Legislation
- Corporations Act 2001 (Cth), ss 997 and 999
Cases
- Murphy v The Queen (1989) 167 CLR 94
- R v Yuill (1993) 69 A Crim R 450
- Adler v Director of Public Prosecutions [2004] NSWCCA 352
- John Fairfax Publications Pty Limited v the District Court of New South Wales (2004) 50 ACSR 80