Citation: R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 8) [2019] NSWSC 1915
Court: Supreme Court of New South Wales
Date: 23 September 2019
Judge(s): Fullerton J
Background
Three accused faced a joint trial listed to commence on 30 September 2019. They were jointly charged with a common law conspiracy, alleged to have occurred between September 2007 and January 2009, in which one accused (a former government Minister) agreed to wilfully misconduct himself in public office for the improper purpose of benefiting his two co-accused and their family members or associates. The alleged misconduct related to the granting of a coal exploration licence.
The accused had already attracted significant media coverage from earlier ICAC public hearings between 2011 and 2013, from separate criminal proceedings in 2015 and 2017 resulting in convictions for wilful misconduct in public office, and from a subsequent successful appeal that quashed one of those convictions. A fresh and unrelated ICAC public inquiry into NSW Labor political donations commenced on 26 August 2019, approximately five weeks before the trial was due to start.
Each accused applied for a temporary stay of the trial until 3 February 2020, arguing that media coverage generated by the new ICAC inquiry created an unacceptable risk to their right to a fair trial. The Crown opposed the application.
Legal Issues
- Whether the intensity, proximity, and nature of recent media coverage created an appreciable risk that the accused's right to a fair trial would be prejudiced.
- Whether that risk, if established, was one that could adequately be addressed by judicial direction to the jury, or whether a temporary stay was required.
Decision
Issue 1: Whether recent media coverage created an appreciable risk of prejudice
The court found that media reporting from 29 August 2019 onwards consistently identified two of the accused by name as exemplars of systemic, entrenched corruption within NSW Labor, even though the concurrent ICAC inquiry concerned entirely separate conduct (political donations) bearing no relationship to the subject matter of the pending trial (at [15], [20]). The coverage included references to the accused as "corrupt", "disgraced", and "jailed" former Labor ministers, and one article directly described one accused as the "architect of [Labor Party] skulduggery" (at [51]).
The court was particularly concerned by remarks attributed to the Premier of New South Wales and the Prime Minister of Australia, which linked the current ICAC inquiry to the proven and alleged criminal conduct of two of the accused. The court held the risk that a jury would be influenced by those views was palpable, given the authority carried by such officeholders (at [52]-[55]). The court also found that an extract from a recently published book, published by a major newspaper on 14 September 2019 with emphasis on one accused's imprisonment for corruption, was "at the very least, grossly irresponsible" in the circumstances (at [36], [59]).
Issue 2: Whether the risk could be managed by judicial direction
The court accepted the well-established principle that jurors are capable of setting aside pre-trial publicity when evaluating evidence at trial (at [4]). However, it concluded that the volume, currency, and intensity of the coverage, combined with the difficulty of formulating an appropriate jury admonition that would not itself draw attention to remarks made by the Premier and Prime Minister, meant the risk could not be adequately managed by direction alone (at [53], [58]-[59]).
Issue 3: Whether a temporary stay was warranted
The court was satisfied that a temporary stay of five months would create sufficient distance from the intensity of media attention surrounding the concurrent ICAC proceedings (at [51]). The court acknowledged the inevitable disruption to the administration of criminal justice and the cost to the State and community, but concluded it could not properly do otherwise than grant the stay (at [59]). The court also noted it would entertain further applications for protective orders if the ICAC Commissioner's anticipated report generated renewed publicity upon its publication (at [60]).
Orders Made
- The notices of motion filed by the accused seeking a temporary stay of the pending joint trial are granted.
- The trial date of 30 September 2019 is vacated.
- The trial is relisted to commence on 3 February 2020.
Key Takeaways
- A temporary stay of criminal proceedings on grounds of pre-trial publicity is warranted where the intensity, proximity, and nature of media coverage creates an appreciable risk of prejudice to a fair trial that cannot adequately be addressed by judicial direction to the jury (at [4]-[5], [51]).
- Concurrent, unrelated public inquiries can generate sufficient prejudicial spillover to justify a temporary stay of a criminal trial, even where the subject matter of those inquiries is entirely distinct from the charges facing the accused (at [15]-[16], [51]).
- Remarks made by senior members of the Executive (including the Premier and Prime Minister) linking accused persons to corruption allegations, even if made without direct reference to a pending trial, may carry particular weight with jurors and prove especially difficult to neutralise by way of jury direction (at [53]-[55]).
- The court confirmed that the capacity of jurors to set aside prejudicial publicity has limits: where coverage is so sustained and authoritative that an appropriate admonition would itself risk drawing undue attention to the prejudicial material, a stay becomes the proper remedy (at [58]-[59]).
- Publication of material that prominently identifies an accused as corrupt or imprisoned while their trial is imminent may be characterised as "grossly irresponsible", and courts will weigh such publications heavily in the balance when assessing stay applications (at [36], [59]).
Legislation and Cases Referenced
Legislation
- Election Funding, Expenditure and Disclosures Act 1981 (NSW)
Cases
- Dietrich v The Queen (1992) 177 CLR 293; [1992] HCA 57
- Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20
- Hughes v R [2015] NSWCCA 330
- John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324
- Maitland v R; Macdonald v R [2019] NSWCCA 32
- R v Moses Obeid; R v Macdonald; R v Edward Obeid (No 7), 9 August 2019
- R (Cth) v Elomar (No 12) [2009] NSWSC 448
- R (Cth) v Petroulias (No 19) [2007] NSWSC 536
- Re K [2002] NSWCCA 374