Citation: R v Agius; R v Abibadra; R v Jandagi; R v Zerafa (No 2) [2011] NSWSC 482
Court: Supreme Court of New South Wales
Date: 25 May 2011
Judge(s): Simpson J
Background
Four accused faced trial on two counts each of conspiracy to defraud the Commonwealth, arising from Operation Wickenby, a large-scale Australian Taxation Office investigation into suspected offshore tax evasion. The Crown alleged the accused, comprising an accountant practising in Vanuatu and three accountants (or one para-accountant) employed by a Sydney accounting firm, facilitated a scheme enabling clients of that firm to dishonestly evade income tax.
The trial had been fixed to commence on 27 April 2011, with an estimated duration of approximately 12 weeks. It had not yet begun by the time of this application, for reasons addressed in earlier proceedings.
In early May 2011, the Australian Financial Review published an extensive four-part series on "The Wickenby Saga." The coverage appeared over several days and included purported quotations from senior Commonwealth figures, including the Commissioner of Taxation, the Chief of the Australian Crime Commission, a Deputy Commissioner of Taxation, and the Commonwealth Director of Public Prosecutions. None of the four accused were named in any of the articles.
Legal Issues
- Whether the pre-trial publicity arising from the AFR's Wickenby series was sufficiently prejudicial to warrant a temporary stay of the criminal trial.
- Whether a two-month stay was necessary to allow any contaminating effect on the jury pool to dissipate.
- Whether the publications were of a nature and reach likely to affect the fairness of the proceedings.
Decision
Simpson J refused the applications for a temporary stay. Her Honour identified the relevant legal principles from R (Cth) v Petroulias (No 19) [2007] NSWSC 536 and applied them to the circumstances. The focus of the inquiry was whether the publicity created a real risk that a fair trial could not be had, not merely whether some risk of prejudice existed.
Her Honour noted several features that weighed against granting the stay. None of the accused were named in the AFR articles. The articles were published in a specialist financial publication, and the Court accepted the CDPP's calculations indicating an approximately 3.5% probability that any given juror from New South Wales would have read the AFR on a weekday. No meaningful challenge was mounted to those figures, and no alternative calculations were offered.
The articles themselves were characterised as sober and carefully constructed, rather than sensationalist, and the authors had explicitly noted that not all individuals connected to Operation Wickenby could be presumed guilty and that guilt remained a matter for the courts. The Court also observed that, by reason of delays unrelated to the publications, at least three weeks would likely elapse before the trial commenced, providing some natural dissipation of any effect.
The Court acknowledged the broader reality that in the modern communications environment, information remains accessible to jurors regardless of when it was published. It noted that legal mechanisms exist to address this, including the directions and oath obligations imposed on jurors under the Jury Act 1977 (NSW). On those bases, the Court found no sufficient ground to delay the trial further.
Orders Made
- Each notice of motion dismissed.
Key Takeaways
- A temporary stay of criminal proceedings on the basis of pre-trial publicity requires the applicant to demonstrate a real risk that a fair trial cannot be had, not merely the existence of some adverse coverage.
- Where accused persons are not named in the offending publications, and the articles themselves acknowledge the presumption of innocence, the prejudicial character of the coverage is materially reduced.
- The reach of the publication matters: a low statistical probability that a juror in New South Wales had read articles in the Australian Financial Review weighed against the stay being granted.
- In dismissing the applications, the Supreme Court noted the availability of jury directions under s 68C of the Jury Act 1977 (NSW) as a recognised mechanism for managing the risk that jurors will act on extraneous material.
- The existence of natural delay before trial commences can itself contribute to the dissipation of any prejudicial effect from pre-trial publicity, without the need for a formal stay.
Legislation and Cases Referenced
Legislation
- Crimes Act 1914 (Cth), ss 29D and 86(1)
- Criminal Code Act 1995 (Cth), s 135.4(5)
- Jury Act 1977 (NSW), s 68C
Cases
- Agius v R; Abibadra v R; Jandagi v R; Zerafa v R [2011] NSWCCA 119
- Dupas v The Queen [2010] HCA 20; 241 CLR 237
- R (Cth) v Petroulias (No 19) [2007] NSWSC 536
- R v Agius; R v Abibadra; R v Jandagi; R v Zerafa [2011] NSWSC 367