Citation: R v Jamal [2008] NSWCCA 177
Court: NSW Court of Criminal Appeal
Date: 22 July 2008
Judges: Spigelman CJ, Simpson J, Price J
Background
The respondent faced charges in the District Court of maliciously discharging a loaded firearm with intent to inflict grievous bodily harm, and an alternative charge of firing a firearm with reckless disregard for the safety of another person. The Crown alleged he participated in a joint criminal enterprise by acting as a getaway driver after a group fired multiple bullets at Lakemba Police Station.
Between May 2004 and December 2007, significant media coverage had accumulated about the respondent, including allegations of terrorism. Much of this material remained accessible via internet searches at the time of trial.
When the matter was listed for trial in February 2008, the District Court judge found the respondent could not receive a fair jury trial in light of the volume and nature of the publicity. The respondent had sought a judge-alone trial, but the Director of Public Prosecutions declined to consent, as required under the Criminal Procedure Act 1986. Sweeney DCJ then stayed the proceedings until the Crown consented to a judge-alone trial. The Crown appealed that order.
Legal Issues
- Whether the District Court had power to make a stay of proceedings conditional upon the Crown consenting to a judge-alone trial
- Whether the District Court erred in characterising a conditional stay as the only available course, without adequately considering a lengthier adjournment
- What the appropriate order should have been in the circumstances
Decision
Spigelman CJ (with whom Simpson and Price JJ agreed) held that the order made by Sweeney DCJ was not an appropriate exercise of the court's discretion and should be set aside. The central difficulty with the order was that it was conditioned on the Crown consenting to a judge-alone trial. Because the Director of Public Prosecutions has a statutory right to withhold consent and that decision is not subject to judicial review, a stay expressed in those terms effectively transferred the power to lift the stay to the Crown, creating an open-ended and impermissible outcome.
The Chief Justice also found that Sweeney DCJ erred by treating the conditional stay as the only available course. Her Honour had dismissed the possibility of a "short adjournment" as insufficient, but had not considered whether a longer, defined adjournment period might address the prejudice. That failure to consider a lengthier adjournment was identified as an error of principle.
The court noted that this omission was particularly significant given the respondent's circumstances. He was already serving a nine-year sentence for an unrelated shooting, imposed in August 2007 with a non-parole period of five years and six months. He would remain in custody for a substantial period in any event, which meant a longer adjournment was practically accommodable without causing the kind of unfairness to the accused that might otherwise arise from protracted delay.
On the internet accessibility point, the court noted that since the decision in R v K [2003], directing juries not to access the internet had become standard practice and had been reinforced by legislation making such conduct a criminal offence. Sweeney DCJ herself had recognised that internet accessibility was not determinative. These considerations further supported the conclusion that a stay tied indefinitely to Crown consent was not warranted.
Orders Made
- The appeal was allowed.
- The order of Sweeney DCJ of 8 February 2008 staying the trial was set aside.
Key Takeaways
- A stay of criminal proceedings conditioned on the Crown consenting to a judge-alone trial is not a permissible exercise of the court's discretion, as it effectively places an open-ended power to lift the stay in the hands of the prosecution.
- Under s 132(3) of the Criminal Procedure Act 1986, a judge-alone election requires the consent of the Director of Public Prosecutions, and refusal of that consent is not subject to judicial review.
- Where adverse publicity raises fair trial concerns, a court must consider all available options before making a stay, including a defined adjournment of meaningful length, not merely whether a short adjournment would suffice.
- The respondent's existing custodial status was a relevant factor in assessing whether a lengthier adjournment was a workable alternative: where an accused will remain in prison for an extended period, concerns about the unfairness of further delay carry different weight.
- Standard judicial directions prohibiting jurors from conducting internet searches, reinforced by criminal sanctions for non-compliance, form part of the framework courts must weigh when assessing whether publicity-related prejudice can be managed without a stay.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 33A(1), 93GA(1)
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), s 132
Cases
- Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
- Jago v District Court of New South Wales (1989) 168 CLR 23
- John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344
- Long v R [2002] QSC 54; (2002) 128 A Crim R 11
- Maxwell v The Queen (1996) 184 CLR 501
- Murphy v The Queen (1989) 167 CLR 94
- M v Director of Public Prosecutions (Supreme Court of NSW, Dunford J, 6 March 1996, unreported)
- The Queen v Glennon (1992) 173 CLR 592
- R v Bell (Court of Criminal Appeal, 8 October 1998, unreported)
- R v Burrell [2004] NSWCCA 185
- R v D'Arcy [2003] QCA 124; (2003) 140 A Crim R 303
- R v Dudko [2002] NSWCCA 336; (2002) 132 A Crim R 371
- R v K [2003] NSWCCA 403; (2003) 59 NSWLR 431
- R v Long; Ex parte Attorney-General (Qld) [2003] QCA 77; (2003) 138 A Crim R 103
- R v Milat (Court of Criminal Appeal, 26 February 1998, unreported)
- R v Richards [1999] NSWCCA 114; (1999) 107 A Crim R 318
- R v VPH (Court of Criminal Appeal, 4 March 1994, unreported)