Citation: R v Azari (No 2) [2017] NSWSC 515
Court: Supreme Court of New South Wales
Date: 3 May 2017
Judge: N Adams J
Background
The accused stood trial before a jury on a single charge under s 101.6(1) of the Criminal Code Act 2005 (Cth): doing an act in preparation for, or planning, a terrorist act. The Crown alleged that on 15 September 2014 the accused participated in a telephone call with a senior Islamic State figure in which they discussed a plan to kill a random member of the public in Australia. The Crown's case included that the accused was part of a group of men, referred to as a "Shura" (a consultative council), who were sympathetic to Islamic State and willing to engage in terrorist activity.
Central to the Crown's case was identifying who "the boys" were in the recorded telephone conversation. The Crown intended to rely on jihadist material found at premises of other alleged Shura members, and the jury had just been provided with Exhibit L, a set of surveillance photographs depicting several of those men, including two individuals referred to as MA and RA2.
By coincidence, on the same day Exhibit L was distributed to the jury, committal proceedings commenced in Sydney against men charged over the 2015 Parramatta shooting in which a government employee was killed outside NSW Police headquarters. Two of the men facing those committal proceedings were MA and RA2, both alleged in the present trial to be members of the accused's Shura. That connection prompted the defence application to discharge the jury.
Legal Issues
- Whether the extensive and detailed media coverage of the committal proceedings involving MA and RA2 created a real risk of prejudice to the accused's right to a fair trial.
- Whether any judicial direction to the jury could adequately cure that prejudice.
- Whether the jury should be discharged under s 55D of the Jury Act 1977 (NSW).
Decision
Adams J found that the media coverage was extensive, dramatic, and highly proximate to the facts directly in issue at trial. Multiple news outlets, including The Daily Telegraph, The Sydney Morning Herald, ABC News, Sky News and others, reported in detail on the alleged involvement of MA and RA2 in the Parramatta shooting. Those reports described the men as having procured a weapon, facilitated the transfer of that firearm, and exchanged messages supportive of the attack.
The timing of the coverage was particularly significant. The jury had received Exhibit L, containing photographs of MA and RA2 as alleged Shura members, on the same afternoon the committal proceedings and associated media reports emerged. The court found that this juxtaposition compounded the risk of prejudice materially.
The court identified two reasons why a judicial direction would be insufficient. First, a direction could not adequately address how much of the coverage individual jurors may have actually seen. Second, and more critically, the coverage went to the heart of the accused's defence. The accused's position was that there was no genuine intention that any terrorist act would ever take place. The reported suggestion that MA and RA2, identified as "the boys" in the accused's Shura, later went on to be involved in an actual terrorist act directly undermined that defence in a way no direction could neutralise.
Applying the test drawn from R (Cth) v Petroulias (No 19) [2007] NSWSC 536, Adams J assessed the intensity, proximity, and nature of the coverage as highly problematic. The court was satisfied that there was a real, rather than fanciful, risk that the accused could not receive a fair trial, and accordingly discharged the jury. The application was made only four days into the evidence.
Orders Made
- The application to discharge the jury was granted.
Key Takeaways
- The Supreme Court discharged the jury where media coverage of separate committal proceedings directly implicated individuals who were central figures in the evidence already before the jury in the current trial.
- A judicial direction is not always sufficient to cure prejudice from mid-trial publicity. Where the coverage goes to the substance of the accused's defence rather than merely to collateral matters, the court may find no direction can adequately address the harm.
- The timing of prejudicial publicity relative to specific developments in the trial, here the distribution of photographic exhibits to the jury, is a relevant factor in assessing the degree of resulting prejudice.
- Under the test applied from Petroulias, the court must assess the intensity, proximity, and nature of media coverage in each case; there is no automatic rule, and the analysis is fact-specific.
- A real risk of unfairness, as distinct from a merely fanciful one, is the operative threshold for discharging a jury on grounds of prejudicial publicity.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 2005 (Cth), s 101.6(1)
- Evidence Act 1995 (NSW), ss 55, 137
- Jury Act 1977 (NSW), s 55D
Cases:
- Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20
- Elomar v R; Hasan v R; Cheiko v R; Cheiko v R; Jamal v R [2014] NSWCCA 303
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- Regina (C'Wealth) v Elomar & Ors [No 4] [2008] NSWSC 1444
- Regina (C'Wealth) v Elomar & Ors [No 12] [2009] NSWSC 448
- R (Cth) v Petroulias (No 19) [2007] NSWSC 536
- The Queen v Glennon (1992) 173 CLR 592