Regina v WK

THE COURT : On the hearing of the appeal on 3 June, the Court allowed the applicant leave to appeal but dismissed the appeal. These are the reasons for the orders made on that date.

The applicant applied for leave to appeal pursuant to s 5F of the Criminal Appeal Act against an order made by Judge Shadbolt in the District Court on 25 May 2005 refusing a temporary stay of the proceedings on an indictment charging the applicant with a number of counts of sexual offences upon two separate complainants under the age of sixteen years. The offences are alleged to have been committed between 5 July 1993 and 8 July 1994.

His Honour did not certify that his interlocutory judgment was a proper one for determination on appeal. Therefore the applicant required the leave of this Court, which will only be granted where the decision the subject of the application is attended by sufficient doubt as to warrant the matter being argued on appeal, or where the interest of justice otherwise require the intervention of this Court. See R v Carter Court of Criminal Appeal 5 September 1995 Unreported: R v Steffan (1993) 30 NSWLR 633: R v Matovski (1989) 14 NSWLR 720: R v Houlton (1999) NSW CCA 100.

Given that the power to grant a stay is discretionary, the principles relating to a review by this Court of the exercise of discretion are applicable: See House and V the King (1936) 55 CLR 499 at 504 to 505. In R v Alexandroaia (1994) 81 A Crim R 286 at 290, this Court said: “There is a strong presumption in favour of the correctness of the decision, but that presumption will be overcome where it is shown that the judge has acted on some wrong principle, or has given weight to extraneous or irrelevant matters, or has failed to give weight or sufficient weight to relevant considerations, or has made a mistake as to the facts. Even if the precise nature of the error may not be discoverable, it is sufficient that the result was so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise that discretion.”

The circumstances giving rise to the application before His Honour are as follows.

In about 2002 the complainants made statements to police which formed the basis of the charges subsequently laid against the applicant. Following committal for trial to the District Court, the matter was set down for hearing on a defended basis for 6 June 2005. On 24 May 2005 the applicant’s counsel appeared before His Honour seeking a stay of the trial for between three to six months. Two bases were given for the application; to allow the asserted effects of a television broadcast to subside in accordance with the decision of this Court in Re K ( 2002) NSWCCA 374 and to ascertain if a Centrelink inquiry, said to be instituted as a result of the television broadcast, would be completed before the time for trial.

According to the applicant’s counsel, the applicant has been the head of a religious community since the late 1970’s in the Nowra district, which has gone by various names and is currently known as the Order of Saint Shabelle. The allegations the subject of the charges against the applicant were made by two female members of that community.

In the week commencing 21 March 2005, the applicant was contacted by the producers of a Channel 9 program, A Current Affair, who indicated to the applicant that they wished to make a program about the applicant’s religious community. The applicant agreed to the proposition that the producers of the program visit his community for the purposes of filming and interviewing various members of it. The applicant also, according to his counsel, told the producers in clear terms that whatever was broadcast was to avoid any reference or any discussion of the allegations the subject of the pending trial. The producers of the program told the applicant that they were aware of that fact and that the interviews would be conducted with due deference to that situation.

A film crew attended the applicant’s premises in Nowra on 23 and 24 March and carried out a number of interviews, including interviews with persons whom the applicant proposed to call in his forthcoming trial. According to the applicant’s counsel, the thrust of the program and the nature of the interviews in the course of the first day and a half was the decision of the Director of Public Prosecutions to terminate a prosecution of a Mr O’Shaughnessy in respect of an alleged sexual assault of another former member of the applicant’s community. Neither Mr O’Shaughnessy nor the alleged victim in respect of those allegations figure in any way in the applicant’s forthcoming trial.

However, in the second half of the second day of the visit by the producers of the program, the interviews turned to a different topic altogether, namely allegations that the applicant and various members of his community were recipients, over a number of years, of social security benefits from Centrelink to which they were not entitled. It is said that one of those persons interviewed and implicitly accused of social security fraud is a critical witness for the defence in the applicant’s trial.

On the evening of Easter Monday and Easter Tuesday the 28 and 29 March, Channel 9 broadcast a program which centred on the allegations that the applicant and members of his community were involved in a systematic social security fraud, whereby benefits were obtained in relation to a large number of children who were part of the applicant’s religious community. In the course of the program, it was asserted that the revelations brought to the surface by the program had “spurred Centrelink into action and they are promising a swift crackdown on any abuse”. Whether or not such an investigation is taking place was not the subject of any evidence before His Honour, other than the assertions contained within the program, a tape recording of which was Ex A before His Honour.

In any event, the applicant’s counsel summed up the basis of the application before His Honour in the following terms: “The problem now is clearly that a highly provocative and prejudicial broadcast has been made within three months of the commencement date of a trial in respect of Mr K himself, members of his community involved in a social security fraud, a rort as its described on more than one occasion in the interview, a social security rort to obtain benefits in relation to children born in and out of wedlock ….. the intended beneficiary of the rort being Mr K`` …. If Mr K is required to go before a jury at this particular time with this matter so fresh – potentially fresh in the mind of jurors, and one of his principal witnesses, to stand trial in respect of a number of allegations concerning the conduct of his community, and various members in his community, that with great respect presents the potential for a prejudice which can be easily averted by this Court delaying the commencement of the trial for a period up to six months.” (emphasis added)

The evidence of an investigation by Centrelink was questionable. In any event, there was absolutely no prospect that any member of the applicant’s community would be standing trial on fraud charges by the time of the applicant’s trial. In fact, the greater the delay in conducting the applicant’s trial, the more likely it was that the Centrelink investigations, if they were underway, might give rise to a prosecution. This was a compelling reason to confirm the trial date, rather than to vacate it.

The above summary is drawn from the transcript of the application before His Honour which was conducted wholly on the basis of submissions from counsel, after His Honour had seen Ex A and admitted a transcript of the program (Exhibit B). Those exhibits were also admitted in this Court for the purposes of the application. It is abundantly clear from a perusal of Exhibits A and B that the entire program is concerned with alleged social security fraud, there being no references to sexual misconduct or sexual assault allegations on behalf of any member of the applicant’s community.

Turning to His Honours reasons delivered on 25 May 2005, His Honour related the above history in succinct terms before posing the question “whether or not the applicant is disadvantaged in his trial by the segment going to air over two months ago.” His Honour answered that question immediately with “no evidence has been placed before the court of any specific prejudice [the applicant] would suffer.”

The applicant argues that His Honour applied the wrong test, in that His Honour required demonstration of actual or probable prejudice (Ground One). This Court in Re K [2002] NSWCCA 374 affirmed that the test to be applied where the trial of the applicant is pending is whether there is a risk that the applicant will not receive a fair trial, arising out of the publication of material said to be prejudicial.

Taken in the context of the submissions made by counsel for the applicant and His Honour’s responses to those submissions in the course of the proceedings on 24 and 25 May, His Honour’s reference to the applicant being disadvantaged in his trial and to the absence of any evidence of specific prejudice cannot be construed in any way consistent with the test as propounded in Re K . The applicant succeeds on this ground of the application.

However, even applying the correct test, the Court is not persuaded that the applicant has demonstrated a risk of an unfair trial. The allegations made in the course of the broadcast are completely unrelated to the allegations of sexual misconduct at the heart of the trial. Mere allegations of a social security “rort” within the applicant’s community could not rationally affect the jury’s deliberations on the critical issues in the trial (i.e. did the applicant engage in sexual activity with the complainants at all and, to the extent that he did, was it consensual activity with females over the age of 16 years).

It became apparent on the hearing of the application that much of the circumstances surrounding the alleged offences, including the nature of the applicant’s community and the name by which he was known, would necessarily be revealed in the course of the evidence. It was also conceded by the applicant’s counsel that his client was a somewhat notorious religious figure and that there were numerous internet entries relating to his client and the Nowra community. It would be very surprising if the trial judge were not called upon to direct the jury to put out of their minds any material concerning the applicant and to decide the issues in the trial solely by reference to the evidence. In these circumstances, much, if not all, of the force of the applicant’s submissions, which stressed the potentially prejudicial “flavour” of the depiction of the religious community on the program, is dissipated.

Ground Two asserts that His Honour failed to take into account the entirety of the broadcast, in that His Honour failed to refer to the visual content of Ex A in conjunction with the transcript (Ex B). There is no substance to this ground. His Honour saw the program ; a failure to refer to it explicitly in the course of his remarks does not establish, without more, that His Honour was not mindful of that aspect of the applicant’s case in favour of the temporary stay. For the reasons set out in the preceding paragraph, the portrayal of the applicant’s community as a “religious compound”, via the images and the commentary, would be unlikely to add anything of significance to the material which was already in the public domain.

Ground Three alleges error in that His Honour took into account the fact that the applicant had brought the adverse publicity upon himself. Whilst His Honour does say that the court “is entitled to ask why, with his trial approaching, he accepted the proposals of the producers of [the program]”, His Honour ultimately returned to the issue of prejudice to the applicant. The applicant’s counsel himself remarked to his Honour that the applicant “visited much of what has happened upon himself”. The applicant has not demonstrated that His Honour allowed this factor to intrude impermissibly in the exercise of his discretion.

The applicant’s counsel sought to draw an analogy between his client’s circumstances and the basis of the decision in Re K . That decision was premised on circumstances where extensive publicity in the print and electronic media, relating to the racial and religious backgrounds of a number of persons convicted of serious sexual offences, gave rise to a risk of prejudice to the applicant, who was a person of the same racial and religious background charged with a similar sexual offence.

Moreover, the publicity in that case occurred within days of the applicant’s trial date and objectively demonstrated “such a degree of outrage in respect of the commission of such [sexual offences]” (par 18) that an unacceptable risk of unfairness was established.

No such repeated, widespread and sensationalised publicity in more permanent, as opposed to transient, forms of media has occurred in this case. There is no real proximity between the broadcast and the applicant’s trial and no relevant link between the allegations aired by the program and the allegations founding the charges against the applicant.

His Honour correctly addressed the issue of the nature of the publicity and the fleeting effect of such programs on the viewer. In drawing attention to the absence of any evidence of the retention span of the ordinary viewer, His Honour was doing no more than explaining a justifiable resort to common sense.

The orders of the Court allow the applicant leave to appeal but the appeal is dismissed.