New South Wales Court of Criminal Appeal CITATION : Re K [2002] NSWCCA 374 FILE NUMBER(S) : CCA 60438/02 HEARING DATE(S) : 3 September 2002 JUDGMENT DATE : 3 September 2002 PARTIES : K Regina JUDGMENT OF : Beazley JA at 1; Sully J at 1; Simpson J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0845 LOWER COURT JUDICIAL Finnane DCJ OFFICER : COUNSEL : Crown: T R Bailey 'K': P G Berman SC/C T Loukas SOLICITORS : Crown: S E O'Connor 'K': Macquarie Lawyers CATCHWORDS : Criminal Law - Application for stay of trial - prejudice - interests of justice R v Compston (unreported, NSWCCA, 22 April 1993) R v Brewer [2000] NSWCCA 488 CASES CITED: R v LMW [1999] NSWSC 1109 R v Glennon (1992) 173 CLR 592 House v R (1936) 55 CLR 499 DECISION : Leave to appeal granted; Appeal allowed IN THE COURT OF CRIMINAL APPEAL CCA 60438/02 BEAZLEY JA SULLY J SIMPSON J Tuesday, 3 September 2002 Re K Judgment 1 THE COURT: This is an application for leave to appeal, which is being heard concurrently with the appeal, from the refusal by Finanne DCJ to vacate the hearing date of trial of 'K' which was listed to commence on Monday 2 September 2002 and to stay those proceedings temporarily. For convenience we will refer to the applicant for leave to appeal as the appellant. 2 The appellant is aged 17, is of Lebanese origin and is a member of the Muslim religion. He has been committed for trial on two charges, one under s 90A of the Crimes Act 1900 (NSW) and one under s 61J of the Crimes Act. The second of these charges involves a charge of sexual assault. 3 Prior to the jury being empanelled, the appellant made an application that the trial be vacated and that the proceedings be stayed temporarily. The basis of the application was that the appellant contended that because of the recent unprecedented publicity which has attended a series of trials and subsequent sentencing of a number of youths of Lebanese origin for sexual assaults upon young Anglo-Saxon females, there was a risk of prejudice to him, such that he may not have a fair trial. Three such trials have been held and are connected in that some of the accused were in two or more of the trials. It followed, on the appellant's submission, that it would not be in the interests of justice for his trial to proceed at this time: see R v Compston (unreported, NSWCCA, 22 April 1993); R v Brewer [2000] NSWCCA 488; R v LMW [1999] NSWSC 1109. 4 It was common ground that the allegations against the appellant are quite unrelated to the series of allegations which arose in the previous trials. However, the appellant identified a number of features that could, superficially at least, convey the impression that this trial was part of that series of connected trials. 5 It was submitted that his Honour, in refusing the application, erred in three ways which would attract appellate intervention. First, it was said that he did not explain why he refused to temporarily stay the proceedings and in particular did not say what test it was that he applied. Secondly, it was submitted that if, as may have been the case, his Honour applied the principle enunciated in R v Glennon (1992) 173 CLR 592, especially at 603, his Honour applied the wrong test. Thirdly, it was submitted that in coming to his conclusion his Honour took into account an irrelevant matter in that he stated that "it would be wrong to grant a stay of even a temporary nature which is based not on some matter of prejudice directed to the accused, but on something that is said to have arisen in other trials that do not concern him at all". 6 It is appropriate to deal with the first and second of these grounds together. His Honour, in his reasons for judgment at page 6, stated that in considering the question of staying the proceedings he was required to act in accordance with the principles laid down by the courts. His Honour then went on to cite passages from Mason CJ and Toohey J respectively in R v Glennon at 603 in which their Honours reiterated the faith which the justice system has in the capacity of jurors to hear and determine trials fairly, and without regard to extra-curial irrelevant or prejudicial information which may come to them. 7 Senior counsel for the appellant pointed out that R v Glennon involved a consideration of whether the accused had in fact received a fair trial. It was submitted that in this case, where the trial was pending the correct test was what the interests of justice required in that context. That test has been enunciated by the Court time and time again including in the cases to which we have referred above. Each of those cases involved different instances where it was said that the interests of justice had not been met. For example, R v Compston involved a case where a stay was granted until particulars of the offence were provided. R v Brewer involved an application for change of venue. 8 Insofar as it was relevant to this case, it was said that the interests of justice required that the Court had to be astute to ensure that the appellant's right to a fair trial might not be affected by a risk of prejudice flowing from the extensive media coverage of recent trials and sentencing of youths of Lebanese origin convicted of sexual assaulting young females of Anglo-Saxon origin. 9 It was submitted that unlike the position after conviction, as was the position in R v Glennon, it was not necessary for the appellant to demonstrate that he would not have a fair trial. It was sufficient if there was such a risk. 10 The Court agrees that this is the correct test to be applied in the circumstances of this case. However, because his Honour's reasons were given briefly and by incorporation of an earlier judgment of his, we are not satisfied that his Honour did err by applying the wrong principle as alleged. 11 The third error of which the appellant complained was that his Honour had taken into account an irrelevant consideration, namely, that it would only be appropriate to stay the proceedings if the matter of which complaint was made was directly prejudicial to the appellant. Whilst we would not have considered his Honour's statement as involving the taking into account of an irrelevant consideration, we do consider that his Honour erred in finding that it would be wrong to grant a stay unless the matter of prejudice was directed specifically at the accused. We are of the opinion that in circumstances where there has been extensive ventilation in the media of the backgrounds of a number of persons convicted for gang rapes in Sydney's west, a person of the same country of origin and the same religion charged with committing a like offence might, in the minds of a jury, be prejudiced. 12 Accordingly, we are satisfied that the appellant has established that his Honour erred in accordance with the principles in House v R (1936) 55 CLR 499 such that it is appropriate for this Court to exercise its own discretion in determining whether or not a stay ought to be granted. 13 In support of the application for a stay, senior counsel for the appellant pointed out that there were so many similarities between the circumstances of the appellant and the crime with which he is charged and those who have already been convicted in trials subject of publicity, there was a real risk of prejudice that he would not receive a fair trial. He listed those similarities as being that the appellant here was of Lebanese origin and the alleged victim was a young white, Anglo-Saxon girl. The trial was to be presided over by Finnane DCJ, who had presided over the series of gang rape trials which have been subject of the recent publicity. It was pointed out that not only were there members of the media present during the course of this application, which is clearly their entitlement, but there were 8 members of the media in court yesterday for the commencement of the trial. The offences were alleged to have been committed in a park in Greenacre, being in the same or similar locality to where the offences in the other trials were committed. There will be the use of a pseudonym for the appellant here, as there was in those trials. The appellant was of approximately the same age and these alleged offences occurred at about the same time as the offences in those trials (that is, in the second half of 2000). Finally, there was to be evidence that a mobile phone was used during the course of the assaults. 14 Senior counsel for the appellant also pointed out that there has been wide media coverage that in the trial of 'X' who received a sentence of 55 years for his offences, there were other members of the gang who were still at large. 15 It was submitted that in all the circumstances, it was appropriate for these proceedings to be adjourned until the conclusion of the sentencing in the trials which have been heard to date. The last of the sentencing hearings is set down for 11 October 2002. It was submitted that if the matter was sometime thereafter placed in the Registrar's call over list for listing, there was at least some prospect that the 'heat', which has attended the publicity surrounding the trials to which we have referred, and the sentencing of the convicted persons in those trials, would have dissipated. 16 The Crown submitted that there was no error in his Honour's determination, a matter in respect of which we have already decided adversely to him. The Crown submitted that, in any case, this was not an appropriate case for the grant of a temporary stay of proceedings because of the significant differences between the alleged circumstances of the commission of the offences with which the appellant is charged and those which have been the subject of publicity. 17 It was submitted that the circumstances in those other trials were characterised by what was described by the trial judge as "a militaristic" approach to organising a large gang. It was also submitted that whilst in those matters, mobile phones had been used as part of the method by which others were brought to the places where the assaults occurred so as to participate, the mobile phone in this case was, it appears, only used incidentally and not apparently for such a purpose. Further, Finnane DCJ had stated in his judgment that in order to eliminate any possible prejudice arising from the mention of a mobile phone in these proceedings, he made a request of the Crown not to lead that evidence and indicated that if necessary he would give a direction to that effect. This Court was advised by the Crown that they would appropriately acknowledge his Honour's request and not call any evidence relating to the mobile phone, which, as we have already indicated, in any event, was incidental to the commission of the offence. It was further pointed out that the circumstances of this offence were very different in that the victim was known to the other alleged co-offender and in fact had been his girlfriend at some stage prior to the commission of these offences. By contrast, the victims in the other trials had been picked up at random from places such as railway stations. 18 Although we have not found this matter to be without difficulty, we consider that the media coverage and the interest which has been exhibited by members of the public, both as to the trials to which we have referred and as to the sentences which have been imposed upon the convicted persons, has demonstrated such a degree of outrage in respect of the commission of such crimes, that there are unacceptable risks to the holding of a fair trial that a person from the same country of origin, charged with having committed a like offence in the same part of Sydney might be branded, or seen by reason of his racial origin and the nature of the offence to be connected with those other offences. 19 One matter, however, which has caused us considerable concern is whether a stay would serve any purpose given that it is understood that appeals have been lodged in the cases to which we have referred and, in the normal course, it is likely that those appeals will be heard sometime in the first part of next year. We would not be speculating to think that there will be further intense media scrutiny surrounding those appeals. It is arguable that it might be preferable to allow the trial to proceed now, in effect, trusting that there is already a hiatus in the media interest in these matters. Whilst we consider that is a possibility, we have reached the conclusion that there would remain a real risk of prejudice to the appellant if the trial was to proceed this week. We have decided that the better view is that a stay for a short period of time, without these matters being so intensely a matter of media focus, would serve to minimise that risk. Accordingly, the orders we make are as follows: (i) Grant leave to appeal; (ii) Appeal allowed; (iii) Order of the trial judge refusing the application for a temporary stay is set aside; (iv) The trial of the appellant is stayed temporarily; (v) The matter is to be re-listed before the Registrar of the District Court with a view to fixing a trial date not before the conclusion of the sentencing of the person known as "Y" on 11 October 2002. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.