Reported Decision : 52 ACSR 154 New South Wales Supreme Court CITATION : Regina (Cth) v Rodney Stephen Adler [2005] NSWSC 44 HEARING DATE(S) : 8 February 2005 JUDGMENT DATE : 8 February 2005 JUDGMENT OF : Dunford J DECISION : Application refused CATCHWORDS : Criminal Law - procedure - pre-trial publication - application to adjourn trail and for temporary stay LEGISLATION CITED : Corporations Act 2001ss 997 and 999 Adler v Director of Public Prosecutions [2004] NSWCCA 352 John Fairfax Publications Pty Limited v the District Court of New South Wales (2004) 50 ACSR 80 CASES CITED : Murphy v The Queen (1989) 167 CLR 94 R v Yuill (1993) 69 A Crim R 450 PARTIES : Regina (Cth) v Rodney Stephen Adler FILE NUMBER(S) : SC 2003/48 D Fagan SC / M A Wigney - Crown COUNSEL : E L Fullerton SC / M Buscombe - Accused Commonwealth DPP - Crown SOLICITORS : Gilbert & Tobin - Accused LOWER COURT JURISDICTION : - 7 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUNFORD J TUESDAY 8 FEBRUARY 2005 2003/48 REGINA (CTH) v RODNEY STEPHEN ADLER JUDGMENT 1 HIS HONOUR: The accused, Rodney Stephen Adler, is charged with offences against ss 997 and 999 of the Corporations Act 2001. 2 On 2 April 2004, his trial was set down to commence yesterday but, at a directions hearing on 28 October last, it was decided that this week would be reserved for legal argument and the jury panel would not be called until next Monday, 14 February. 3 Yesterday, an adjournment and temporary stay of proceedings was sought on account of what was alleged to be adverse publicity which had the potential to prevent the accused receiving a fair trial. 4 Before proceeding to the material relied on and its nature, I note that there were formerly civil proceedings brought by ASIC against the accused for breaches of his duties as a director of HIH Insurance Ltd (HIH), as a result of which he was fined and banned from acting as a director of a company for 20 years. 5 He then sought a stay of these criminal proceedings on the grounds that they related to the same matter as the civil proceedings and were a breach of the principles of double jeopardy. That application was dismissed by James J. 6 An appeal to the Court of Criminal Appeal was unsuccessful: Adler v Director of Public Prosecutions [2004] NSWCCA 352 and special leave to appeal from such judgment was refused by the High Court of Australia on 10 December last. The nature of the civil proceedings are summarised in the judgment of the Court of Criminal Appeal at paras [9] to [12]. 7 In support of the application, a variety of material was tendered, consisting of copies of newspaper reports and Media Monitors reports of radio and television broadcasts. 8 Exhibit 1 on the voir dire, which related to material published yesterday morning, generally referred to the fact that the trial was to start yesterday, the nature of the charges, the fact that the accused has previously been disqualified from acting as a company director and fined for breaching his duties as a director, and that he has sought to stay the present prosecution on the ground of double jeopardy. Some of the material directly links his breach of duty as a director with the payment of $10 million of HIH funds to the accused's company which was used for the purchase of HIH shares, the subject of the current criminal charges. There are other passing references to HIH collapsing in 2001 with debts of $5.3 billion, and the former chairman and chief executive of HIH, Ray Williams, pleading guilty to breaches of Corporations law. Some of the material states that Mr Williams is expected to give evidence against the present accused, which is in fact not the case. 9 Exhibit 2 on the voir dire is generally more remote in point of time. One article refers to an application by the accused and one Jodie Rich to have a civil suit arising out of the collapse of One Tell dismissed. Another article refers to the accused going skiing overseas over the Christmas holiday period. A number of articles relate to his application to have this prosecution stayed on the ground of double jeopardy and one, dated July 2004, relates to the accused pursuing business ventures in Lebanon. Other material relates to his unsuccessful application for special leave to appeal in civil proceedings against him and two items relate to him being seen on Bondi Beach and using a pay telephone. 10 It is not necessary to go through the other material in exhibits 3, 4, 5 and 6 on the voir dire. They can be summarised as being further material which was broadcast yesterday, some of it on talk back radio and similar programs, to material on the Internet, and two reports in Exhibit 5 on the voir dire from today's Sydney Morning Herald, including a photograph of the accused. 11 The principles on which a trial will be adjourned and a stay of proceedings, permanent or temporary, granted on account of pre-trial publicity are set out in Murphy v The Queen (1989) 167 CLR 94, particularly at 99 in the joint judgment of Mason CJ and Toohey J. Their Honours there point out that it is misleading to think that simply because a juror has heard something of the circumstances giving rise to the trial an accused has lost the opportunity of an indifferent jury. They stressed that the importance of a fair trial to an accused must not be underestimated, but it is not the only consideration, that anyone charged with a criminal offence be brought to trial expeditiously, and that it is inimicable to the orderly disposition of the work of the courts that trials be adjourned unnecessarily. 12 Brennan J agreed with their Honours on this point, as did Deane J, who pointed out at 125 that sometimes it may be impossible to ensure that one or more jurors are not aware of some factor prejudicial to an accused and, even if a trial is adjourned, the juror may still remember the matter complained of. See also John Fairfax Publications Pty Limited v the District Court of New South Wales (2004) 50 ACSR 80, particularly at [104] to [110]. 13 I also refer to R v Yuill (1993) 69 A Crim R 450, a case of particular relevance to the present, because it, unlike Murphy and some of the other cases referred to, relates to what is commonly referred to as "white collar crime". In that case Kirby ACJ, with whom Handley JA and Sully J agreed at 452 to 454 set out the principles governing an application such as the present. I find that statement of principle particularly helpful in the present case because, as I say, this is not a murder or multiple rape trial where public passions and the feelings of the victims and their immediate families thereof are aroused in the same way. 14 The collapse of HIH was a major financial event in 2001 and affected directly or indirectly a number of members of the public in a number of different ways. It was such a major collapse and created such public concern in the commercial and general community that the Federal Government appointed a Royal Commission whose proceedings and findings, including its recommendations that certain civil and/or criminal proceedings be taken against various directors, including the accused, were widely reported in the media, and properly so. It is to be expected that a large number of potential jurors to be called will have a passing knowledge and recall of these matters, although in many cases their recollection of the details will be incomplete. 15 The public are entitled to have an interest in knowing whether the recommendations of the Royal Commission as to possible proceedings against certain directors have been carried out, and there has also previously been media reporting of the civil proceedings against the accused and the application for the stay of proceedings and appeals arising therefrom. 16 In these circumstances, it is not surprising or inappropriate that the media sought fit to report yesterday that this trial was about to start and what it was about. It is claimed, however, that the currency, cogency and content of the reporting were such that the accused may not receive a fair trial. Particular attention was directed to the reference to the accused as a "disgraced businessman". 17 In my view, a company director who has been banned from acting as such and fined for breaches of his duties as a director can fairly be described as "disgraced". Most people who follow these matters, including, I anticipate, a number of potential jurors, would be aware of the civil proceedings and their result and, in my opinion, the epithet "disgraced" would not add to their recall of such matters. 18 It was submitted that references to the civil case were irrelevant and therefore prejudicial to the accused, particularly where the civil case was described as it was in some cases, being "in respect of the same matter" as the current criminal charges. There is in fact some overlap (see the Court of Criminal Appeal judgment referred to above at [35]), but, as held by that Court, the civil cases and the current criminal charges are not identical. They require proof of different matters and to a different onus. Moreover, it cannot be inferred that any potential jurors who have heard or read these reports will have analysed them in the same minute detail as Ms Fullerton SC has done in her submissions. 19 The jury can be told to disregard what, if anything, they have heard or read about the civil proceedings and that the issues in this trial are different; and there is no reason to infer that they would disregard such directions simply because a number of news reporters, usually in what might be called the "transient" media, such as radio or television, have referred to the two sets of proceedings as relating to "the same matter". 20 Of course, there is no evidence as to how many of the potential jurors have heard or read or seen the particular reports, nor which potential jurors have heard, seen or read which reports. It can, however, be assumed that a number of such potential jurors have read or heard one or more of them; but against this must be borne in mind that some of the reports give no details at all but simply state the nature of the present proceedings, and contain none of the references to "disgraced businessman" or "the same matter" as were particularly objected to. The main thrust of most of the material is simply that the accused is charged with stock market manipulation and making false statements, matters which I assume that the jury, when empanelled, will be told at the very beginning of the Crown Prosecutor's opening address. 21 Although material prior to yesterday has been tendered on the voir dire, the main objection appears to have been to yesterday's reporting, and in view of the fact that the jury trial will not start until next week, it may reasonably be expected that the immediate effect of yesterday's reporting will be dissipated to a degree by the time the jury is empanelled. 22 Moreover, I made a plea yesterday to the media generally to be very circumspect with their reporting of the proceedings (see yesterday's transcript at pp 5-6) and it is, hopefully, unlikely that there will be anymore reporting of material which may be claimed to be prejudicial, a fact acknowledged in this morning's Sydney Morning Herald (see Document 3 in Exhibit 5 on the voir dire). 23 In my view, in accordance with the cases to which I have referred, this is a case where, particularly as the trial is not starting until next week, strong directions can be given to the jury to secure a fair trial. They will, of course, be directed to confine their deliberations to the evidence in accordance with the oath or affirmation which they will take, and to exclude any other material from their minds. They will be directed in strong terms not to attempt to access other material, such as the Internet. I will also invite those who either, because they have read the material complained of, or any other material relating to the accused, or have any particular other reason to feel that they cannot bring a totally unprejudiced mind to the trial, to stand aside. I will also take what steps I can to have the earlier judgments referred to in Exhibit 7 on the voir dire removed from the Supreme Court website. 24 There have already been a number of delays in bringing these matters to trial. The summons was issued on 5 November 2002, the accused was committed for trial on 11 July 2003 and arraigned in this Court on 5 September 2003. The trial has been delayed, primarily by the accused's application for a stay of proceedings. He was, of course, perfectly entitled to make this application, and I am not suggesting otherwise; but the time has now come when the trial should not be delayed any further unless it is necessary. 25 Finally, there is no guarantee, or indeed likelihood, that the position will be any better in three months time or six months time. People that have read or heard material such as is complained of, will probably still recall it, or the substance of it, in three months' time or six months' time. I believe that the giving of directions, as I have indicated, and the other steps that I have indicated will, I believe, remove any potential for unfair prejudice and ensure a fair trial for the accused. 26 The application for an adjournment and a temporary stay of proceedings is accordingly refused. ********** 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.