Citation: R v Rajapakse (No 2) [2024] NSWSC 1227
Court: Supreme Court of New South Wales
Date: 10 September 2024
Judge: Chen J
Background
The accused stands trial for murder alleged to have been committed in October 2020. A prior trial in August 2023 before McNaughton J resulted in a hung jury and a retrial was listed. During that first trial, McNaughton J made an order excluding the accused's father from the courtroom and the court precincts until a verdict was returned, on the basis that his conduct amounted to attempts to intimidate witnesses and undermine the course of justice.
The father was provided a remote audio-visual link to watch the proceedings from outside the court. He has been connected to an outlaw motorcycle gang in a senior capacity for many years, a fact the Crown confirmed and Chen J accepted on the evidence.
At the retrial, the father applied to have the exclusion order discharged, arguing he had not engaged in the conduct alleged and that he wished to attend court to support his son. The Crown opposed the application and relied on two additional incidents said to have occurred after the first trial concluded.
Legal Issues
- Whether the exclusion order made by McNaughton J should be discharged, given the accused's father's application and his contest of the underlying findings
- Whether subsequent events, including an alleged coffee shop interaction with a witness and an alleged threat conveyed to a Crown witness, justified maintaining the order
- Whether the court should revisit findings made by a different judge during the earlier trial
Decision
Chen J refused to discharge the exclusion order. His Honour examined two post-trial incidents relied on by the Crown. The first concerned a brief interaction between the father and a witness at a nearby coffee shop before a pre-trial hearing in August 2024. Chen J accepted the father's account that the witness had approached him and that the exchange was brief and benign. The Crown did not contest this evidence, and it was not held against the father.
The second incident carried considerably more weight. In November 2023, the mother of a Crown witness reported to police that her former husband (described as an associate of the father and a member of an outlaw motorcycle gang) had visited and delivered a message: "Message from the dark man. Tell Joel to watch himself when he visits the Central Coast." Evidence before Chen J established that the father used the nickname "dark man" or "Midnight." The father denied any involvement and suggested there had been a mistake, but Chen J rejected that explanation. The contemporaneous police report, the nature of the message, and the association between the father and the messenger all supported a finding that the message was likely delivered on the father's behalf.
Chen J also declined to revisit the findings McNaughton J made about the father's interactions with a police officer during the first trial. A statement prepared by the officer shortly after the interaction, sent by email to superior officers within the hour, clearly supported those findings. The father's alternative account was characterised as quite improbable in the circumstances.
Weighing the father's wish to attend court to support his son against the risk to the administration of justice and the integrity of the trial, Chen J found those considerations firmly subservient to the latter. With prosecution witnesses still to give evidence at a delicate stage of the retrial, the risk of interference to witnesses and to a fair trial was clear and distinct.
Orders Made
- The application to discharge the exclusion order made by McNaughton J on 2 August 2023 was refused.
- A non-publication order was made under ss 7 and 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), prohibiting publication of the fact of the application, the evidence and submissions, and the judgment itself.
- NSW Police and all law enforcement agencies were exempted from the non-publication order.
- The orders apply throughout the Commonwealth and operate until the jury returns its verdict.
- All material relating to the application was ordered to be placed in a sealed envelope, with access not to be granted without leave of a judge of the Supreme Court.
Key Takeaways
- A court has power to exclude a person from the courtroom and court precincts where their conduct poses a clear risk of witness intimidation, with the effect of preventing a fair trial for both the accused and the community.
- Refusing to revisit findings made by another judge during an earlier trial is appropriate where the evidence clearly supports those findings and no compelling reason exists to depart from them.
- A finding of witness intimidation does not require proof that the accused's father personally delivered a threatening message; it is sufficient that the court is satisfied the message was conveyed on his behalf through an associate.
- Where the risk of interference to the administration of justice is clear and distinct, a person's interest in attending court to support a family member is treated as subordinate to the integrity of the trial process.
- In dismissing the application, the Supreme Court accepted that providing a remote audio-visual link to the excluded person represented a proportionate accommodation of his interest in observing proceedings.
Legislation and Cases Referenced
Legislation
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7 and 8(1)(a)
Cases
- Regina v Davis [2008] AC 1128
- Commissioner of Taxation v De Vonk (1995) 61 FCR 564; [1995] FCA 994
- European Asian Bank AG v Wentworth (1986) 5 NSWLR 445
- Moore v Clerk of Assize, Bristol [1971] 1 WLR 1669