Citation: R v Abdul-Razzak, Razzak & Razzak [2006] NSWCCA 195
Court: NSW Court of Criminal Appeal
Date: 21 June 2006
Judge(s): Studdert J; Kirby J; Johnson J
Background
Three co-accused were on trial in the District Court, charged with four counts of shooting with intent to murder, four counts of maliciously discharging a loaded firearm with intent to cause grievous bodily harm, and one count of firing a firearm near a public place. The trial had been running for over five weeks when, on 20 June 2006, the Sydney Morning Herald published an article about a separate Supreme Court trial involving related family disputes and a series of violent incidents.
Defence counsel in the District Court trial applied for the jury to be discharged on the basis that the newspaper article had caused irreparable prejudice to the accused. The trial judge, Knox DCJ SC, accepted those submissions and published reasons indicating he would discharge the jury and order a retrial. He stayed the formal discharge briefly to allow the Director of Public Prosecutions to approach the Court of Criminal Appeal.
The Director sought urgent orders under s 5F of the Criminal Appeal Act to stay the trial and vacate the trial judge's ruling. All three accused opposed the application.
Legal Issues
- Whether the Court of Criminal Appeal had jurisdiction under s 5F of the Criminal Appeal Act to intervene before the trial judge had formally made the order to discharge the jury.
- Whether the trial judge's decision to discharge the jury constituted an error in the exercise of his discretion, such that appellate intervention was warranted.
- Whether the trial judge had adequately reasoned why a jury direction could not remedy the prejudice caused by the newspaper article.
Decision
The Court of Criminal Appeal declined to resolve the jurisdictional question, finding it unnecessary to do so. On the assumption that jurisdiction under s 5F existed, the Court found that this was not a case warranting its exercise.
The Director argued the trial judge had erred by failing to adequately explain why a direction to the jury could not address the harm caused by the article. The Court rejected that submission. The reasons published by the trial judge showed he had genuinely turned his mind to whether a direction was feasible, including attempting during the preceding hour to craft suitable words. His Honour concluded that any specific direction to ignore press reports risked drawing jurors' attention to the article itself, potentially provoking the very speculation such a direction was designed to prevent.
The Court found that, read as a whole, the trial judge's reasons reflected a careful weighing of all relevant factors. Knox DCJ SC had presided over a lengthy and difficult trial, was aware of the cumulative prejudicial effect of earlier incidents, and brought that full context to his assessment of the final and decisive article. No misstatement of fact or principle was identified in his reasons, and he had applied the correct legal principles, including those discussed in R v Kaddour.
Studdert J concluded that no error in the exercise of the trial judge's discretion had been demonstrated. Kirby J and Johnson J agreed.
Orders Made
- Appeal dismissed.
Key Takeaways
- The Court of Criminal Appeal left open whether s 5F of the Criminal Appeal Act confers jurisdiction to intervene before a trial judge has formally made an order to discharge a jury, deciding only that, if such jurisdiction exists, it was not appropriate to exercise it on these facts.
- An appellate court reviewing a trial judge's decision to discharge a jury applies the well-established principles from House v The King (1936) 55 CLR 499: error in the exercise of a discretion must be demonstrated before appellate intervention is warranted.
- No error was established where the trial judge had genuinely considered and rejected a remedial jury direction, providing reasons that reflected the cumulative context of the trial and the particular prejudice created by the newspaper article.
- A trial judge's conclusion that a direction may cause more harm than it cures (by directing jurors' attention to prejudicial material) constitutes a legitimate basis for that reasoning, rather than a failure to give reasons.
- The Court of Criminal Appeal confirmed the principles in R v Kaddour (2005) 156 A Crim R 11 as the relevant framework for assessing jury prejudice from media publications, including the recognition that jurors generally approach their task according to their oaths.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act (NSW), s 5F
Cases
- House v The King (1936) 55 CLR 499
- R v Munro (unreported, NSWCCA, 30 June 1994)
- R v Kaddour (2005) 156 A Crim R 11
- John Fairfax Publications Pty Limited v District Court (New South Wales) (2004) 61 NSWLR 344