R v Macdonald; R v Maitland

1. [1]

   JOHNSON J: This is an application by John William Maitland to be tried separately from his co-accused, Ian Michael Macdonald.

2. [2]

   Mr Macdonald is charged with two counts of misconduct in public office. Mr Maitland is charged, in the same indictment, with two counts of aiding and abetting the alleged offences of misconduct in public office said to have been committed by Mr Macdonald. The charges concern the grant of consent to Doyles Creek Mining Limited to apply for an exploration licence under the Mining Act 1992, and then the grant of the exploration licence itself. The grants were allegedly made by Mr Macdonald in his capacity as Minister for Mineral Resources.

3. [3]

   Each Accused has pleaded not guilty to the charges brought against him. A joint trial is listed to proceed in this Court commencing on 14 March 2016.

The Present Application

1. [4]

   In support of the application for separate trials, the affidavit of Robert Leslie Whyburn sworn 4 September 2015 was read on behalf of Mr Maitland.

2. [5]

   Mr Massey, counsel for Mr Maitland, has acknowledged that there are strong reasons of principle and public policy why persons charged with committing an offence jointly should be tried together. Mr Massey accepted that Mr Maitland bears the onus of demonstrating that an order for separate trials should be made. He submitted that the material attached to the affidavit of Mr Whyburn indicating media publicity critical of Mr Macdonald was such that, if Mr Maitland was tried with him, there would be a positive injustice caused to Mr Maitland.

3. [6]

   Mr Massey contended that the publicity with respect to the proceedings was likely to increase at the time of trial. He submitted that an order for separate trials should be made.

4. [7]

   The Crown opposed the order, pointing to the strong starting position that there should ordinarily be a joint trial of persons charged as alleged co-offenders.

5. [8]

   The Crown noted that the media publicity concerning Mr Macdonald occurred in a period between July 2009 and November 2013, when Mr Macdonald was involved in inquiries before the Independent Commission Against Corruption (“ICAC”). The Crown pointed to the substantial time gap between November 2013 and the scheduled trial date in March 2016.

6. [9]

   It was submitted for the Crown that there are mechanisms available, in the context of a criminal trial, to reduce the prospect of exposure to past media publicity.

7. [10]

   In any event, the Crown submitted that an application of this type should not be approached upon the basis that potential jurors would be likely to succumb to past media publicity by way of influencing the determination of any jury.

Decision

1. [11]

   The principles to be applied on a separate trial application under s.21 Criminal Procedure Act 1986 are well settled. There are strong reasons of principle and public policy why persons charged with committing an offence jointly should be tried together: Webb and Hay v The Queen [1994] HCA 30; 181 CLR 41 at 88-89. These public interest concerns include conserving costs, avoiding inconvenience to witnesses and the desirability of common enterprises being jointly tried so as to avoid inconsistent verdicts: Symss v R [2003] NSWCCA 77 at [68]. The third concern is particularly important where one accused may try to cast blame on the other accused: Webb and Hay v The Queen at 88-89.

2. [12]

   Mr Maitland bears the onus of establishing the reasons for the making of an order granting a separate trial: R v Bikic [2000] NSWCCA 106; 112 A Crim R 300 at 305 [21]. To succeed, the applicant for a separate trial must demonstrate that there is a real risk that a positive injustice would be caused to him as a consequence of a joint trial: R v CE [2005] NSWCCA 326 at [4].

3. [13]

   In R v CE, Grove J (Hall J and Smart AJ agreeing) continued at [5], citing the well-known statement of Hunt J in R v Middis (unreported, 27 March 1991, BC9102181):

4. [14]

   The single basis advanced in support of this separate trial application is the suggested prejudice that may flow, in a derivative fashion, to Mr Maitland as a result of adverse media publicity concerning Mr Macdonald some years ago.

5. [15]

   There is no closed category of circumstances which may give rise to an order for separate trials. Exercise of the relevant discretion may be considered, in an appropriate case, where the basis of the application is adverse media publicity concerning a co-accused. However, what is required is an assessment, in the particular case, of the nature and strength of the evidence of publicity, and its proximity to the trial.

6. [16]

   Here, the headlines of the articles in question suggest the flavor of the articles themselves:

7. [17]

   The date range of these 18 articles is from 15 July 2009 to 12 November 2013, with the majority (13) published between 2011 and 2013. The articles relate to Mr Macdonald’s alleged corrupt conduct and matters which were the subject of investigation by the ICAC.

8. [18]

   From time to time, this Court considers the suggested impact of media publicity in the context of an application for trial by Judge alone under s.132 Criminal Procedure Act 1986. Statements made in judgments of that type concerning the robust nature of jurors and the jury system have application, as well, in the context of this application.

9. [19]

   In R v Jamal [2008] NSWCCA 177; 72 NSWLR 258, Spigelman CJ emphasised at 261 [17] that the Courts “have decisively rejected the previous tendency to regard jurors as exceptionally fragile and prone to prejudice”. The Chief Justice observed, as well, in R v Jamal at 262 [21] that the “perspective that jurors properly perform their task, are true to their oaths and comply with a trial judge’s directions has repeatedly been applied in appellate courts over recent years”.

10. [20]

    It has been emphasised that the risk of jurors conducting internet searches for previously published material is mitigated by s.68C of the Jury Act 1977 and standard judicial directions: R v McNeil [2015] NSWSC 357 at [67]-[69], [79].

11. [21]

    The Courts have recognised, as well, that the lapse of time between media publicity and the trial itself is a significant factor: Montgomery v HM Advocate [2003] 1 AC 641 at 673; R v McNeil at [66], [75].

12. [22]

    There was a period of fairly regular adverse media publicity with respect to Mr Macdonald, in particular, in the period 2011 to 2013. It may be noted that Mr Maitland is mentioned once only (and in passing) in one article (Annexure Q to the Whyburn affidavit, referred to above at [16](o)).

13. [23]

    Further, and importantly, the last article complained of appeared on 12 November 2013, some two years and four months before the scheduled trial date. The passage of time is a significant factor in assessing the possible impact of adverse media publicity.

14. [24]

    It should be noted, as the Crown submits, that there has been no publicity in more recent times of the type relied upon in support of this application.

15. [25]

    Insofar as counsel for Mr Maitland submitted that there was a prospect of publicity emerging between now and the time scheduled for the trial, it is appropriate to have regard to the different context existing now as compared with that up to 2013, when Mr Macdonald was before the ICAC. The media will be well aware of the law of contempt of court, and its capacity to apply with respect to adverse publicity concerning accused persons in the period preceding and during a criminal trial: R v McNeil at [73]. Considerations of this type did not apply at the time of the investigatory processes of the ICAC with respect to Mr Macdonald. I note the Crown submission (which is correct) that should publicity arise concerning the forthcoming trial, there are other mechanisms available to the Court.

16. [26]

    With respect to the risk of jurors accessing adverse material on the internet, the provisions contained in s.68C Jury Act 1977 and expected judicial directions from the trial Judge are fundamentally important aspects to be taken into account on this application.

17. [27]

    Mr Maitland has not demonstrated that there is a real (as opposed to a theoretical) possibility that the past media reporting concerning Mr Macdonald will cause prejudice at a joint trial of the kind that would result in positive injustice to him.

Conclusion

1. [28]

   Mr Maitland has not made good his application for a separate trial. I make the following orders: