Citation: R v Macdonald; R v Maitland [2015] NSWSC 1704
Court: Supreme Court of New South Wales
Date: 17 November 2015
Judge(s): Johnson J
Background
The two accused were charged on the same indictment arising from the grant of a mining exploration licence under the Mining Act 1992. The first accused, charged with two counts of misconduct in public office in his former capacity as a government minister, was alleged to have improperly granted consent for a company to apply for the licence and then granted the licence itself. The second accused was charged with two counts of aiding and abetting those alleged offences. Both pleaded not guilty, with a joint trial listed to commence on 14 March 2016.
The second accused brought a motion seeking to be tried separately from his co-accused. His application rested entirely on the argument that extensive adverse media coverage of the first accused, generated primarily during ICAC hearings between 2009 and 2013, would cause prejudice to him if the two were tried together.
Legal Issues
- Whether the second accused demonstrated a sufficient basis for the court to depart from the strong default position favouring joint trials of alleged co-offenders.
- Specifically, whether the adverse media publicity surrounding the first accused created a real risk of positive injustice to the second accused if a joint trial proceeded.
Decision
Johnson J confirmed the well-settled principle that persons charged with jointly committing offences should ordinarily be tried together. The public interest considerations supporting joint trials include cost efficiency, avoiding inconvenience to witnesses, preventing inconsistent verdicts, and reducing the opportunity for one accused to deflect blame onto another. The applicant bears the onus of establishing that a separate trial is warranted.
To succeed, the applicant must show more than a theoretical or mere possibility of prejudice. The test, drawn from R v CE and R v Middis, requires demonstration of a real risk that a particular prejudice, if it arises, would result in positive injustice at a joint trial.
His Honour assessed the 18 media articles relied upon by the second accused. All fell within the period July 2009 to November 2013, with the majority published between 2011 and 2013 in connection with ICAC proceedings. The second accused was mentioned in only one article, and then only in passing. Critically, the last article appeared more than two years and four months before the scheduled trial date, and no recent publicity of the relevant kind had occurred.
Johnson J also noted that the media context existing at the time of the ICAC hearings differed materially from the context leading up to a criminal trial, where contempt of court principles constrain publication. Existing mechanisms, including judicial directions and the provisions of s 68C of the Jury Act 1977 concerning juror use of the internet, provided further protections. On the evidence, the second accused had not demonstrated a real risk of positive injustice flowing from the prior media coverage, and the application was refused.
Orders Made
- The application by the second accused to be tried separately from his co-accused was declined.
- The Notice of Motion filed 7 September 2015 was dismissed.
Key Takeaways
- A separate trial application requires more than pointing to adverse media coverage of a co-accused: the applicant must establish a real, as opposed to theoretical, risk that proceeding jointly would result in positive injustice.
- The passage of time between adverse publicity and the trial date is a significant factor in assessing whether media coverage poses a genuine risk to a fair trial.
- Where media publicity is generated in the context of an investigatory body such as ICAC rather than criminal proceedings, that context is distinct from the period immediately before trial, when contempt of court considerations apply.
- Strong public interest considerations, including cost, witness convenience, and the avoidance of inconsistent verdicts, support the joint trial of alleged co-offenders and create a high threshold for departure from that default position.
- Existing trial management tools, including judicial directions and the Jury Act 1977 provisions addressing juror internet research, are relevant considerations in evaluating separate trial applications based on publicity.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 21
- Jury Act 1977 (NSW), s 68C
- Mining Act 1992 (NSW)
Cases
- Webb and Hay v The Queen [1994] HCA 30; 181 CLR 41
- R v CE [2005] NSWCCA 326
- R v Bikic [2000] NSWCCA 106; 112 A Crim R 300
- Symss v R [2003] NSWCCA 77
- R v McNeil [2015] NSWSC 357
- Montgomery v HM Advocate [2003] 1 AC 641
- R v Jamal [2008] NSWCCA 177; 72 NSWLR 258