Citation: MG v R [2007] NSWCCA 57
Court: NSW Court of Criminal Appeal
Date: 5 March 2007
Judge(s): McClellan CJ at CL, Bell J, Hoeben J
Background
The applicant was originally tried and convicted alongside co-accused for serious sexual assault offences arising from an attack on 30 August 2000. The Court of Criminal Appeal quashed his conviction in April 2004 and ordered a retrial, on the basis that certain telephone intercept evidence had been wrongly admitted and then further compounded by the Crown Prosecutor's address to the jury.
The same Crown Prosecutor, Ms Margaret Cunneen, was appointed to prosecute the retrial. While the retrial was pending, she delivered the Sir Ninian Stephen Lecture to the Newcastle University Law School on 10 March 2005. Those remarks were subsequently reported in multiple newspapers, with portions republished under her name in the Weekend Australian.
The applicant applied in the District Court for a stay of proceedings, or alternatively an order restraining Ms Cunneen from appearing at his trial. The trial judge dismissed that motion, and the applicant sought leave to appeal to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912 (NSW).
Legal Issues
- Whether the Crown Prosecutor's public statements, made while a retrial was pending, breached the Bar Rules and Director of Public Prosecutions Guidelines governing prosecutorial conduct
- Whether those statements demonstrated a lack of the detachment and impartiality required of a Crown Prosecutor
- Whether, in light of those statements, a fair-minded observer would regard the applicant as being able to receive a fair trial if prosecuted by the same Crown Prosecutor
- Whether a stay of proceedings was the appropriate remedy, and whether the Court of Criminal Appeal had jurisdiction to grant it under s 5F
Decision
The Court noted that the role of a Crown Prosecutor is fundamentally different from that of a private advocate. A Crown Prosecutor must act as a minister of justice, bringing objectivity and impartiality to the prosecution rather than acting as a partisan advocate for conviction. Earlier observations by this Court, made in the related TS appeal, had already explicitly criticised the same prosecutor for making comments to the media following the original trial.
The Court found that the content of Ms Cunneen's Sir Ninian Stephen Lecture, and its republication in the press with her attributed as author, went further. The published material expressed views about the case and its protagonists in a manner that revealed a lack of the requisite detachment from the outcome. The Court held this conduct was attributable to Ms Cunneen, breached the Bar Rules, and was inconsistent with the DPP Guidelines governing prosecutorial conduct.
Applying the test of the fair-minded observer, the Court concluded that such an observer, aware of the public statements, would inevitably conclude that Ms Cunneen might not discharge her prosecutorial obligations with appropriate fairness and detachment. On that basis, justice would not be seen to be done if she prosecuted the retrial. The Court also noted that appointing a different prosecutor from the available pool of experienced prosecutors would not significantly prejudice the conduct of the trial, particularly as the complainant would not be giving oral evidence and prior transcript evidence would be tendered instead.
On jurisdiction, the Court held that a stay of proceedings was an interlocutory order reviewable under s 5F, and that staying the trial until a different prosecutor was appointed was sufficient relief. The Court declined to decide whether it could directly restrain a named prosecutor from appearing, though it noted that such power might exist if the prosecutor were joined as a party.
Orders Made
- Leave to appeal granted and the appeal upheld.
- The trial of the applicant stayed until a Crown Prosecutor other than Ms Cunneen is appointed to prosecute the trial.
Key Takeaways
- A Crown Prosecutor occupies a unique role as a minister of justice and is required to maintain objectivity and detachment, both in conduct at trial and in public statements made outside the courtroom.
- Public commentary by a Crown Prosecutor about a case that remains on foot, including speeches subsequently republished in newspapers under the prosecutor's name, can constitute a breach of the Bar Rules and DPP Guidelines.
- The Court of Criminal Appeal confirmed that the standard for intervention is whether a fair-minded observer, aware of the relevant conduct, would conclude that the prosecutor might not fulfil her obligations with appropriate fairness and detachment, not simply whether actual bias could be proven.
- A stay of proceedings is an available and sufficient remedy where a change of prosecutor is all that is required to ensure the trial will be, and will be seen to be, fair.
- The practical availability of alternative experienced prosecutors was a relevant consideration in resolving any residual doubt about whether intervention was warranted.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Legal Profession Act 1987 (NSW)
- Legal Profession Act 2004 (NSW)
- Director of Public Prosecutions Act 1986 (NSW)
Cases
- Regina v TS [2004] NSWCCA 38
- Regina v [MC], [MS], [MG], [BS] [2004] NSWCCA 36
- Jago v The District Court of NSW (1989) 168 CLR 23
- Whitehorn v The Queen (1983) 152 CLR 657
- R v Apostilides (1984) 154 CLR 563
- Webb v Hay (1994) 181 CLR 41
- Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337
- Livesey v NSW Bar Association (1983) 151 CLR 288
- House v R (1936) 55 CLR 499
- Livermore v R [2006] NSWCCA 334
- Kallinicos & Anor v Hunt & Ors (2005) 64 NSWLR 561
- R v Khazaal [2006] NSWSC 1353
- Cannon & Anor v Tahche (2002) 5 VR 317
- Grimwade v Meagher (1995) 1 VR 446
- Subramaniam v R (2004) 211 ALR 1
- Szabo (2000) 112 A Crim R 215
- R v McCullough (1982) 6 A Crim R 274