Citation: R v KN [2007] NSWDC 133
Court: District Court of New South Wales
Date: 29 April 2007
Judge(s): Nicholson SC DCJ
Background
The accused, referred to as KN, was set down for trial at Penrith District Court on 28 May 2007, facing a charge of aggravated sexual assault. The Crown alleged that KN had sexually assaulted a 21-year-old female acquaintance without her consent during a visit to his premises in December 2005, and that he had inflicted actual bodily harm in the course of doing so. KN denied the assault, telling police the complainant had initiated the encounter.
On the same morning the trial was due to commence, The Daily Telegraph published a prominent front-page campaign, spanning six articles, seeking what it described as equal justice under law for sexual assault victims. The campaign was critical of how courts and the legal profession treated complainants and included statistics on acquittal rates and unreported assaults, descriptions of cross-examination as a "blood sport," and calls for legislative and procedural reform.
Defence counsel applied for a temporary stay of the trial on the basis that the timing and content of the campaign created a real risk that KN would not receive a fair trial.
Legal Issues
- Whether the launch of a high-profile media campaign on the first day of trial created a real risk that the accused would not receive a fair trial in all the circumstances.
- Whether the court had power to grant a temporary stay under section 19(2) of the Criminal Procedure Act 1986.
- What imputations a juror might reasonably draw from the campaign material, and whether those imputations were capable of distorting jury deliberations.
Decision
Nicholson SC DCJ accepted that section 19(2) of the Criminal Procedure Act 1986, despite its heading "Traverse of Indictment," was broad enough to support an application for a temporary stay. The onus rested on the accused to demonstrate a real risk that the trial would not be fair in all the circumstances.
The court examined the content of the six published articles and the companion internet piece in detail, identifying a range of imputations available from that material. These included: that the criminal justice system was failing rape victims; that defence lawyers treated cross-examination of complainants as a blood sport; that judges were not adequately supervising cross-examination; that a complaint effectively amounted to proof of victimhood; and that directions given by trial judges on consent were unfair to complainants. The court noted at least one passage in the articles reflected a factual confusion about the legal elements of the consent question, but did not discount its potential impact on readers.
Nicholson SC DCJ was satisfied that some jurors might regard those imputations as fair comment, and that holding such views carried a real risk of distracting them from their proper task: confining themselves to the evidence, counsel's submissions, and the trial judge's directions, particularly on the issue of consent. On that basis, the court concluded that a real risk of an unfair trial existed at that time.
The court granted a temporary adjournment of approximately one month, anticipating that the campaign's intensity would have subsided by then and the risk of tainting the proceedings would accordingly diminish.
Orders Made
- The application for a temporary stay was granted, with the trial to be stood over for approximately one month.
Key Takeaways
- The District Court held that section 19(2) of the Criminal Procedure Act 1986 is sufficiently broad to ground an application for a temporary stay of a criminal trial, even though that provision is headed "Traverse of Indictment."
- The relevant test is whether there is a real risk that the accused would not receive a fair trial in all the circumstances, and the onus of demonstrating that risk lies with the accused.
- A high-profile media campaign launched on the very day a sexual assault trial was set to commence, criticising the courts and the legal profession's treatment of complainants, was capable of giving rise to imputations that could distract jurors from their proper function.
- Granting a temporary rather than permanent stay was considered sufficient where the source of prejudice was a time-limited media campaign whose impact was expected to diminish within weeks.
- The court expressly identified specific imputations available from the articles, including that a complaint equals victimhood and that defence counsel and trial judges alike were failing complainants, treating those imputations as relevant to the fair trial assessment regardless of any inaccuracies in the underlying reporting.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 19(2)
Cases cited: No cases were cited in the portions of the judgment provided.