MG v R

Criminal Appeal Act 1912 (NSW) LEGISLATION CITED: Legal Profession Act (1987) NSW Legal Profession Act 2004 (NSW) Director of Public Prosecutions Act 1986

Cannon & Anor v Tahche (2002) 5 VR 317 Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 Grimwade v Meagher (1995) 1 VR 446 House v R (1936) 55 CLR 499 Jago v The District Court of NSW 168 CLR 23 Kallinicos & Anor v Hunt & Ors (2005) 64 NSWLR 561 Livermore v R (2006) NSWCCA 334 Livesey v NSW Bar Association (1983) 151 CLR 288 CASES CITED: R v Apostilides (1984) 154 CLR 563 R v Khazaal [2006] NSWSC 1353 R v McCullough (1982) 6 A Crim R 274 R v TS [2004] NSWCCA 38 Regina v [MC], Regina v [MS], Regina v [MG], Regina v [BS] [2004] NSWCCA 36 Subramaniam v R (2004) 211 ALR 1 Szabo (2000) 112 A Crim R 215 Webb v Hay (1994) 181 CLR 41 Whitehorn v The Queen (1983) 152 CLR 657

PARTIES: MG (Appl) The Crown (Resp)

FILE NUMBER(S): CCA 2007/497 (CCA); 2007/40084(CA)

COUNSEL: C Waterstreet (Appl) D Frearson SC (Crown/resp)

SOLICITORS: Nyman Gibson Stewart (Appl) Director of Public Prosecutions (Crown/resp)

IN THE COURT OF APPEAL AND COURT OF CRIMINAL APPEAL 2007/497 (CCA) 2007/40084 (CA)

McCLELLAN CJ at CL BELL J HOEBEN J

MONDAY 5 MARCH 2007 MG v R Judgment 1 THE COURT: The applicant seeks leave to appeal pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) from an order by the trial judge dismissing his motion which sought the following orders:

1. A stay of the proceedings until further order of the court. In the alternative: 2. That the Crown Prosecutor be restrained from further representing the Crown in these proceedings. 2 The applicant has also filed a motion returnable in the Court of Appeal seeking the following orders:

A declaration that the District Court ought have exercised the powers sought in the notice of motion filed in the District Court of New South Wales and dated 21 February 2007.

An order staying the District Court of New South Wales in the matter of Regina v MG until a new Crown Prosecutor is briefed.

An order prohibiting the District Court of New South Wales from proceeding in the matter Regina v MG until the orders sought in the notice of motion (set out in paragraph 1) are made.

An order requiring the District Court of New South Wales to perform its duty and exercise the powers and make the orders sought in the notice of motion (set out in paragraph 1).

Such other orders as this honourable court sees fit. 3 The Chief Justice has appointed Bell and Hoeben JJ additional Judges of Appeal so that this bench may dispose of both matters. 4 The applicant's essential complaint is that a prosecutor other than Ms Margaret Cunneen should be appointed to prosecute his trial.

A brief chronology 5 On 30 August 2000 the complainant was subjected to a series of brutal sexual assaults over a lengthy period. The applicant was tried for his alleged participation in the assaults together with three others MC, BS, and MS. A further accused person TS was separately tried and convicted. 6 TS appealed his conviction and by majority, Mason P and Wood CJ at CL, the conviction was set aside and a new trial ordered (Regina v TS [2004] NSWCCA 38). 7 During the course of that appeal the Court examined the very considerable media publicity which had surrounded the trial of the applicant and his co-accused. The Court was made aware that the Crown Prosecutor, Ms Margaret Cunneen, who prosecuted TS's trial and who was appointed to prosecute the applicant at his first trial and has again been appointed to prosecute his retrial, spoke to the press, including radio and television journalists, immediately following the verdict in the trial of the applicant and his co-accused. She said to them: "I commend the quality of the police investigation and the fortitude of the victim." 8 These remarks were broadcast on both radio and television. This Court was critical of the prosecutor speaking to the media about the trial. In his reasons for judgment Sully J said at [113]-[114]: "I pause to note that the media transcripts indicate that the Crown Prosecutor in the first trial was heard both on radio and on television to say: "I commend the quality of the police investigation and the fortitude of the victim" . It is not entirely clear from the television transcripts whether the Crown Prosecutor actually spoke to camera, but it seems to be a fair inference that such was the case. For my own part, I would wish to say plainly that in my opinion a Crown Prosecutor ought never to make to the media any public comment about a trial which he or she has prosecuted; and that I understand that principle to have been, hitherto, well established. The reason for the principle lies in the unique role of the Crown Prosecutor in ensuring that the machinery of criminal justice functions with a proper objectivity and impartiality." 9 The other members of the Court expressly approved the remarks of Sully J saying at [3]: "We also agree with Sully J's remarks about the inappropriateness of Crown Prosecutors making comments to the media about trials they are prosecuting or have prosecuted." 10 The present applicant and his other co-accused also appealed their convictions to this Court. On 7 April 2004 the applicant's appeal was upheld, his conviction was quashed and a new trial was ordered (see Regina v [MC], Regina v [MS], Regina v [MG], Regina v [BS] [2004] NSWCCA 36). The appeals of MS and BS and MC were dismissed. The applicant succeeded in an argument in this Court that evidence of a phone call he had with MC, shortly after the latter had been interviewed by police in relation to the alleged assaults, should not have been admitted at his trial. The trial judge had admitted the evidence of the telephone call but ruled that it was not admitted as evidence of consciousness of guilt, but was available to show "close association" or "deep interest in what MC is talking about or had talked about" or "an association between two people having an interest in the matter which is the subject of the trial." The difficulties created by the admission of the evidence were compounded by the address of the Crown Prosecutor, Ms Cunneen, when she told the jury: "And the arrangement of course is [MC] doesn't have to tell [MG] what happened, [MG] knows, and obviously the conversation once he arrives is to get the heads together to make sure what is said is the same thing." 11 The Court of Criminal Appeal accepted that this sentence misrepresented the text of the intercepted conversation. No direction correcting that problem was made by the trial judge. In fact, the Court held that the directions which the trial judge gave exacerbated the situation created by the admission of the evidence against the applicant. 12 Preliminary hearings in relation to the new trial of the applicant commenced in the District Court on 23 August 2004. Following a pre-trial voir dire hearing the trial judge rejected the tender of a photograph of the applicant taken by the police when they were searching his residence. The Crown challenged the trial judge's ruling and an appeal was heard by this Court on 9 February 2005 when the decision was reserved. On 25 August 2005 the court gave judgment reversing the decision of the trial judge. 13 On 10 March 2005 Ms Cunneen gave the Sir Ninian Stephen Lecture for 2005 to the Newcastle University Law School. We shall relate relevant parts of her address later. The address was reported in the Daily Telegraph and The Australian newspapers of 11 March 2005. Significant portions of the address were repeated with Ms Cunneen stated to be the author in the Weekend Australian published on 12 March 2005. Given the significance of the occasion of the Sir Ninian Stephen Lecture and the controversy associated with the trials about which Ms Cunneen chose to speak, it was inconceivable that her comments would not attract widespread publicity. This occurred. 14 The applicant's solicitor complained about Ms Cunneen's address to the Director of Public Prosecutions, The New South Wales Bar Association and the Legal Services Commissioner. The response from the Director of Public Prosecutions, which was dated 18 May 2005, was to note the expressed concerns. The Director indicated that he was "satisfied that Ms Cunneen remains in a position to prosecute this matter and other matters fairly and professionally and I do not propose to alter her briefing arrangements in the [MG] matter." The Director reminded the applicant's solicitor of the opportunity for the applicant to make applications to the court. 15 The Legal Services Commissioner determined the complaint and provided that determination to the applicant's solicitor on 19 June 2006. We shall deal with the detail of the determination later. A copy of the Commissioner's determination was tendered to the trial judge at which time the confidentiality which would otherwise attach to it pursuant to s 171 of the Legal Profession Act (1987) was waived by Ms Cunneen. 16 Apart from the matters to which we have referred, the trial and appeals of the applicant and his co-accused, including matters of sentence, have attracted considerable publicity. As recently as January and February this year significant publicity was given to the production of a film with the title "Wrong Girl" reported under colourful headlines including "Gang rape film outrage" and "Horror rating for gang rape film's message."

The Sir Ninian Stephen Lecture 17 A copy of Ms Cunneen's lecture was in evidence. She commenced by reminding the audience of the great contribution which Sir Ninian Stephen has made to the law. This is followed by a short autobiographical account followed by encouragement to young lawyers to meet the challenges which the law will bring them. 18 Ms Cunneen told the audience that she had been a Crown Prosecutor since 1990 usually prosecuting crimes where there is a complainant, or complainants, who also have families. She remarked on the injury and trauma which crime can occasion to complainants saying that: "For some victims the anguish continues in a justice system which can give the impression that it is increasingly focussed on the rights of the accused person to the complete exclusion of the right of the victims, many of whom, on any view of the evidence, have been victims of someone's crime and have found themselves bound up in the criminal justice system through absolutely no fault of their own." 19 Ms Cunneen acknowledged that a Crown Prosecutor is not the representative of the complainant and referred both to the Director of Public Prosecution Guidelines and the New South Wales Bar Rules, both of which provide that the prosecutor is to assist the court in arriving at the truth by a full and firm presentation of the case; the objective being to do justice between the community and the accused. 20 Ms Cunneen also referred to the New South Wales Charter of Victims Rights - appended to the DPP Guidelines and extracts as the first and foremost of these rights: "A victim should be treated with courtesy, compassion and respect for the victim's rights and dignity." 21 She then said: "While New South Wales, which started off as a gaolhouse, has now reached the civilised position of achieving a myriad of protections for the rights of the accused person, the course of some cases through the criminal justice system may leave you to ponder when the undoubtedly innocent (as opposed to the merely presumed innocent), the victims, will have their liberty restored." 22 These words preface a detailed account of the trial of the men accused, including the applicant, some of whom have been convicted, of the sexual assault of Ms C. Understandably, any account of the facts of the assault would evoke great sympathy for Ms C in the terrible ordeal which she suffered. 23 After introductory remarks which acknowledged the increasing sophistication and complexity of the investigation of crime and the consequential increase in the complexity and length of trials, Ms Cunneen proceeded to canvass, in some detail, the facts of the alleged assaults. She included a discussion of the trial of the applicant and the miscarriage of justice which arose from the tender and admission of evidence of the phone call with MC. She said of this evidence: "The admission, and use made, of one piece of evidence was to have a disastrous effect for the unfortunate complainant, whom, on any view of the evidence, had been subjected to an unspeakable ordeal. The police arrest MC and interviewed him about several of the Bankstown rapes, A telephone intercept warrant had been obtained and his mobile phone was being monitored. During the interview, MC was given a break and left the police station to obtain some lunch. He telephoned MG and his calls were intercepted and recorded. He is heard to say: 'G…, they've f…ed me brother. They know your name, I've seen B's name, everyone's name. They know everything bro.' MG replies: 'So what's gunna happen?' MC says: 'I'm at the cop shop.' They then made arrangements to meet urgently at the library nearby. The trial judge ruled that this evidence was admissible to show consciousness of guilt on the part of MC but that it could not be used for this purpose against MG. Nevertheless the evidence was available to show 'close association' or 'deep interest in what MC was talking about' or 'an association between two people having an interest in the matter which is the subject of the trial.' All four accused were found guilty by the jury. All four appealed on numerous grounds each. Of the 7 grounds in MG's appeal he was successful in establishing that the trial judge had erred in allowing telephone intercept evidence against him and erred in his directions about that evidence. The Court of Criminal Appeal held that MG had not, in the phone call, adopted MC's inculpatory statements or otherwise implicated himself and further, that the judge should have directed the jury, with emphasis, that this was the case and warned them against using the call as indicating MG's consciousness of guilt." 24 Ms Cunneen's discussion of the proceedings with respect to the applicant does not conclude with the phone call. She continued with an account of the process of retrial and included a discussion of the Crown appeal to this Court in relation to the identification evidence. She said: "A psychiatrist was called by the defence to challenge the accuracy of the complainant's recollection. This necessitated the complainant being required to be examined by a psychiatrist called by the Crown, whose opinion was that there was nothing to suggest that her accounts would be inaccurate. The trial judge ruled that the evidence of the psychiatrists as to the reliability of her recollection would be admissible, thereby, it could be thought, taking the emphasis from the credibility of the complainant and casting it upon the relative charisma of the two doctors, who will of course have to be called at the two opposite ends of the trial. The last word, in terms of evidence, will go to the defence psychiatrist who has not examined the complainant either at the time she was raped or at any time since, who will say that in his opinion she should not be believed in relation to her identification of the accused. The second new defence application raised, for the first time, at retrial, concerned the notes of the counsellor who had spoken to the complainant at the hospital to which she was taken soon after she was assaulted. The hospital counsellor, who accompanied the complainant during the medical examination arranged by investigating police, followed up with several brief phone calls to the complainant in the weeks that followed. The defence sought access to the notes and the Department of Health briefed counsel to oppose the access on the basis that as they were records of 'a sexual assault communication', they were privileged under the relevant provisions of the Criminal Procedure Act 1986. After argument, the trial judge permitted the release, to the defence, of some of the material which he ruled may have been relevant to the timing of her recollection of the many events she had related to the police. I understand from Ms C's father that Ms C will not now attend any medical practitioner or other health worker for any reason whatsoever, fearful that her private medical records will be subpoenaed and come into the hands of the accused. The third new defence application raised for the first time in 2004 concerned the photograph of the accused used by police in the photoboard. The photo was not used for the photoboard identification process until several weeks later, after the accused's legal representative had advised the police that the accused would not take part in an identification parade. On 20 October 2004 the trial judge ruled that he would not permit the photograph (and therefore the identification process which used it), to be admitted in the trial. He ruled that the accused, in standing still while the photograph was taken, was making an admission or representation and therefore should have been cautioned before it was taken and told of any purpose for which it may be used in the future. The judge ruled that the photograph was unfair pursuant to section 90 of the Evidence Act 1995, improperly obtained pursuant to sections 138 and 139 of the same Act and that the photographing should have been videotaped (as an interview is) pursuant to section 281 of the Criminal Procedure Act. The Crown had submitted that posing for the photograph did not constitute an admission and that the accused was merely supplying a particular of identification. Interestingly the judge said that if the police had merely extracted a still photo of the accused from the video of the search of the premises and used that, there would have been no problem. For my part I must say that as the accused was wearing a peaked cap with a large jacket hood over the top throughout the search, it may not have provided a very useful image." 25 The detailed discussion concluded with the following passage: "As the identification evidence (which had not been found to be deficient in the earlier appeal to the Court of Criminal Appeal) is the lynchpin of the Crown case, the decision has been appealed against by the Crown and the Court of Criminal Appeal is yet to deliver its judgment. This issue is of even greater importance because of the fact that the same photograph was used to identify the accused in a separate earlier trial concerning the gang rape of two other young women taken from Chatswood and assaulted in a Greenacre Park. Even though the accused's appeal against conviction in that matter was not successful, one can envisage that he may re-open that matter on the strength of the ruling about the photograph in the other case if the Crown appeal in this case fails. So G's matter limps on." 26 In this passage Ms Cunneen told her audience of the Crown appeal in respect of which the decision was reserved and also spoke of another matter where the applicant was convicted of sexual assault. Viewed in the context of the total address she was complaining that the appeal process may enable the applicant to reopen the other matter and challenge the legitimacy of his conviction. 27 After completing her discussion of the trial and appellate proceedings in relation to the applicant and his alleged co-offenders, Ms Cunneen embarked on a discussion of the adversary system and criminal trials. She firstly drew upon the remarks of Sir Daryl Dawson in Whitehorn v The Queen (1983) 152 CLR 657 at 682. Ms Cunneen said: "Our criminal trials in New South Wales are conducted under the adversary system. Unlike the inquisitorial system of the European model, the object of which is to ascertain the truth, the adversarial system is an enquiry into whether the prosecutor has discharged the burden of proof beyond reasonable doubt. Sir Daryl Dawson in a judgment of the High Court in Whitehorn v The Queen (1983) 152 CLR 657 at 682 said: 'A trial does not involve the pursuit of truth by any means. The adversary system is the means adopted, and the judge's role in that system is to hold the balance between the contending parties without himself taking part in their disputations. It is not an inquisitorial role in which he seeks himself to remedy the deficiencies in the case on either side. When a party's case is deficient, the ordinary consequence is that it does not succeed. If the prosecution does succeed at trial when it ought not to and there is a miscarriage of justice as a result, that is a matter to be corrected on appeal." His Honour said nothing about the fact that if the prosecution does not succeed at trial when it ought to have, there is no appeal. Nor does he address the fact that many criminal appeals result in orders for retrials due to very minor matters which seem most unlikely to have made any difference to the verdict of the jury, the tribunal of fact, which does, after all, have the advantage of seeing the witnesses give their evidence in person. Then the witnesses, including the victims themselves, and the accused, have to endure the whole ordeal again, except that it is longer, because there is cross-examination on any variation in even the most irrelevant detail if it varies even slightly from the way it was described in the first trial. If justice, in the criminal jurisdiction, means that the innocent are acquitted and the guilty are convicted, the adversarial system may seem routinely to achieve the former but rather often to fail with the latter. Its methods often seem, to observers, incompatible with justice. Helen Garner, in her latest book, Joe Cinque's Consolation said, (at page 159): 'One of the props of the adversarial system, I began to see, is a curious charade that memory is a clear, coherent narrative, a stable and unchanging source of information, so that any deviation from a witness's original version of an event can be manhandled to look like unreliability, or the intent to deceive … Thus I saw how a Crown witness of what seemed to be transparent sincereity and desire to do right … could go to water under the sustained onslaught of a defence cross-examination.' The most fundamental aphorism of our criminal law is that it is better that 100 guilty men go free than one innocent man stands convicted. In this I believe whole-heartedly. Wrongful conviction is truly a prosectuor's worst nightmare. The good news is that there has never been a time when it has been less likely to occur in this State." 28 There can be no doubt that these remarks by Ms Cunneen related to the circumstances of the complainant in the applicant's trial. She had already remarked on the "disastrous effect for the unfortunate complainant" of the decision by this Court to quash the applicant's original conviction. Her comment on the need for retrials "due to very minor matters which seem most unlikely to have made any difference to the verdict of the jury" can only be understood as a comment, inter alia, on the retrial of the applicant. 29 Ms Cunneen continued with a discussion of the complexities of a modern criminal trial and the need for prosecutors to exercise care in the evidence which they tender. In that discussion she raised the question whether some of the rules as to the admissibility of evidence mean that "public confidence in the courts is now being eroded by the perception that the pendulum has swung rather too far in the direction of the protection of the rights of the accused person." She questioned whether fairness in the criminal process equates "increasingly, in the courts, to a decision in favour of the defence and against the community." She illustrated her point by reference to an informal exchange with counsel outside a court room in the precincts of the courts at Darlinghurst. 30 By reference to other matters she has prosecuted, that is matters not involving the applicant, Ms Cunneen emphasised the important part which she believes a plea of guilty can play in the restoration of the health of complainants and their families and the rehabilitation of offenders. 31 She concluded her address with the following: "The investigating and prosecuting authorities of this State have endured decades of refinement and have assumed stringent controls to ensure absolute transparency, full disclosure and, at every level, fairness towards accused persons. Yet I am informed that in some law schools the teaching of criminal law revolves around the supposed epidemic of the conviction of the innocent. This is very old-fashioned teaching. What I wish to challenge you to do, in your practice of the criminal law, is to bring your sense, your humanity and your conscience with you. Justice isn't achieved by ambush, trickery, dragging proceedings out in a war of attrition with witnesses. It's achieved by honesty, balance and proportion. As lawyers, you have a power. Be good with it."

Further publicity 32 We have already referred to the fact that Ms Cunneen's address attracted significant publicity. The newspaper articles were tendered. One of those articles identified its source as Australian Associated Press ("AAP")and is in the following terms: "She was raped 25 times by 14 men over six hours, but now the victim of one of Sydney's worst gang rapes refuses to seek any medical help. The victim, known only as Ms C, fears her records will fall into the hands of her accused rapists and the lawyers representing them, the case's Crown Prosecutor said last night. 'I understand from Ms C's father that Ms C will not now attend any medical practitioner or other health worker for any reason whatsoever,' said during her Sir Ninian Stephen Lecture at the University of Newcastle. '(Ms C is) fearful that her private medical records will be subpoenaed and come into the hands of the accused.' Ms Cunneen said the trial involving Ms C had been hijacked by technicalities in her attackers favour. 'Justice isn't achieved by ambush, trickery, dragging proceedings out in a war of attrition with witnesses,' she said. 'It's achieved by honesty, balance and proportion.' Ms Cunneen who rose to prominence during the gang-rape trials, said lawyers had become obsessed with helping criminals avoid jail by finding minor loopholes to appeal jury decisions. 'There seems to be a fashion among some in the criminal justice system for a kind of misplaced altruism that it's somehow a noble thing to assist a criminal to evade conviction,' Ms Cunneen said. 'What must not be lost in the rhetoric of the criminal law and our zeal to afford every possible protection to accused persons is the fact that every time a guilty person is acquitted, the law in a sense has failed the community it exists to serve.' She said appeals on minor matters that would have made little difference to the original verdict were frequently leading to retrials in which victims were forced to relive their ordeals. And she said cross-examiners were often too eager to pounce on the most minor variations of evidence. 'Perhaps it's time for us to consider whether public confidence in the courts is now being eroded by the perception that the pendulum has swung rather too far in the direction of the protection of the rights of the accused person,' she said." 33 On the same day an article was published in the Sydney Daily Telegraph which contained extracts from Ms Cunneen's address. On the following day, 12 March 2005, substantial portions of her address were published in the Weekend Australian. Under Ms Cunneen's "by-line", with the caption "Balance: Every time a guilty person is acquitted, Cunneen says, the law has failed the community," the following extracts were published: "The Weekend Australian Edition 1 - All-round CountrySAT 12 MAR 2005, Page 029 Just say not guilty, bro By Margaret Cunneen

Confidence in our courts could be eroded by a perception that the pendulum has swung too far towards protecting the rights of the accused at the expense of victims, argues … THE trials in which I am briefed involve people accused of murder, sexual assaults and armed robberies. They are trials involving crimes where there is usually a victim or victims. The victims have families who are also victims. This is particularly so in cases of homicide but is also manifestly the case when someone has been seriously injured or traumatised. For some victims, the anguish continues in a justice system that can give the impression that it is focused on the rights of the accused to the exclusion of the rights of the victims. Conversely, defence counsel have a private duty in that they must seek to protect the interests of their clients to the best of their skill and diligence. May I bring you up to date on the plight of Ms C, the victim of gang rape in Bankstown [in southwestern Sydney] in August 2000 by 14 men. Ms C was sexually assaulted 25 times in four locations over six hours and was subjected to the gratuitous degradation of being hosed down in a dark, deserted industrial estate on a winter's night. The Crown case included covert physical and electronic surveillance, telephone intercepts, mobile telephone records giving precise locations of accused persons at relevant times and telephone records establishing association between suspects. The evidence gathered in the course of these areas is valuable because it can support the evidence of the complainant that a particular person was the person responsible for the sexual assault. More thorough investigations can, however, have the effect of increasing the complexity of trials. In each additional area of evidence there may be argument about whether it is fair to admit it, whether it has been illegally or improperly obtained and whether its probative value outweighs the danger of unfair prejudice to the accused. In joint trials, an area of contention will be whether a particular piece of evidence is admissible against only one, or more than one, of the accused, and what can be done to ensure that no prejudice flows to those against whom it is not admissible. Where more evidence is tendered and trial judgments made as to admissibility, more avenues of appeal inevitably arise. From a complainant's perspective, it must seem ironic when a successful appeal arises from an area of evidence that would not have existed in a sexual assault case that had been less thoroughly investigated. In the case of Ms C, four accused were tried together, BS, MS, MC and MG. One of the four accused tried together, MC, maintained he had sexual intercourse with Ms C, in the company of other men, on the day in question, but that it had been consensual. His car and the locations described by him were consistent with MsC's account. She claimed that the man in the passenger seat next to MC had a ponytail and had raped her too. She identified MG from a photoboard as "the passenger in the red car". MG and MC were close friends. There were mobile phone calls from relevant locations on the day of and shortly before the rapes. MG, whom police surveillance showed in the passenger seat of MC's red car, wearing a ponytail, on several occasions in the weeks after the rapes, denied any involvement in the offences. The admission, and use made, of one piece of evidence was to have a disastrous effect for the unfortunate complainant, who, on any view of the evidence, had been subjected to an unspeakable ordeal. The police arrested MC and interviewed him about several of the Bankstown rapes. His mobile phone was being monitored. During the interview, MC was given a break and left the police station for lunch. He telephoned MG and his calls were intercepted. He is heard to say: "G…, they've f…ed me, brother. They know your name, I've seen B's name, everyone's name. They know everything, bro." MG replies: "So what's gunna happen?" MC says: "I'm at the cop shop." The trial judge ruled that this evidence was admissible to show consciousness of guilt on the part of MC but that it could not be used for this purpose against MG. Nevertheless, the evidence was available to show "close association" between two people having an interest in the matter. All four accused were found guilty. All four appealed on numerous grounds. Of the seven grounds in MG's appeal, he was successful in establishing that the trial judge had erred in allowing telephone intercept evidence and erred in his directions about that evidence. The Court of Criminal Appeal held that MG had not, in the phone call, adopted MC's inculpatory statements or otherwise implicated himself. The retrial began in August 2004 when several issues were raised by the defence that had not been the subject of any concern in the previous trial or appeal. A psychiatrist was called by the defence to challenge the accuracy of the complainant's recollection. This necessitated the complainant being examined by a psychiatrist called by the Crown, whose opinion was that there was nothing to suggest that her accounts would be inaccurate. The trial judge ruled that the evidence of the psychiatrists as to the reliability of her recollection would be admissible, thereby, it could be thought, taking the emphasis from the credibility of the complainant and casting it on the two doctors. The last word, in terms of evidence, will go to the defence psychiatrist, who had not examined the complainant either at the time she was raped or at any time since, who will say that in his opinion she should not be believed in relation to her identification of the accused. The second new defence application raised at retrial concerned the notes of the counsellor who had spoken to the complainant soon after she was assaulted. The hospital counsellor followed up with several phone calls to the complainant in the weeks that followed. The defence sought access to the notes and the health department briefed counsel to oppose the access on the basis that, as they were records of "a sexual assault communication", they were privileged. After argument, the trial judge permitted the release, to the defence, of some of the material that he ruled may have been relevant to the timing of her recollection of the many events she had related to the police. I understand from Ms C's father that MsC will not now attend any medical practitioner or other health worker for any reason whatsoever, fearful that her private medical records will be subpoenaed and come into the hands of the accused. Each additional trial about the same events yields slight variations in accounts, particularly of complex events involving numerous individuals, cars, locations and offences. This leads to lengthier cross-examinations, particularly for the complainant. In this series of cases, Ms C may be able to look forward to the completion of her ordeal of giving witness to these events by the fifth anniversary of their occurrence. The appeals, of course, will go a lot longer. If justice, in the criminal jurisdiction, means that the innocent are acquitted and the guilty are convicted, the adversarial system may seem routinely to achieve the former but rather often to fail with the latter. Its methods often seem, to observers, incompatible with justice. Modern prosecutors are now constantly on their guard to ensure that no piece of evidence is of a type that may lead to the risk of wrongful conviction. The criminal law now has a patchwork of detailed controls on confessional evidence and evidence that is found to have been illegally or improperly obtained which has developed and been applied ever more rigorously over many years. These developments have been made in the spirit of the duty of courts to maintain public confidence in the administration of justice. It has often been said by the High Court, in decisions disallowing a portion or class of evidence in a criminal case, that it is contrary to the public interest to allow public confidence to be eroded by a concern that the court's processes may lend themselves to oppression and injustice. Perhaps it is time for us to consider whether public confidence in the courts is now being eroded by the perception that the pendulum has swung rather too far in the direction of the protection of the rights of the accused person. Should we question whether fairness equates to a decision in favour of the defence and against the community, which has a legitimate right to have criminal activity duly recorded, punished and the offender rehabilitated in his own interests and those of his fellow citizens? What must not be lost in the rhetoric of the criminal law and our zeal to afford every possible protection to accused persons is that every time a guilty person is acquitted the law, in a sense, has failed the community it exists to serve. Just to utter this unassailable proposition is almost a heresy because it involves looking behind that stalwart of the criminal law that one is innocent until proven guilty. This legal act of faith is in danger of becoming a legal fiction. There seems to be a fashion among some in the criminal justice system for a kind of misplaced altruism that it is somehow a noble thing to assist a criminal to evade conviction. What good does it do a person, in 2005, to get away with a serious crime? There is no remorse, no introspection, no rehabilitation. For some, there may be a feeling of relief and a determination never to find oneself in the same predicament again. What though of the rest, whose respect for the criminal law is now even lower, having seen it fail and who are emboldened by having defeated it? Obviously the community is in danger from these people. If they offend again, isn't someone accountable, apart from themselves? Fear of oppression by the state in criminal proceedings has an honourable and perfectly explicable history. Its genesis is a backlash against barbaric practices that have been gradually ameliorated over hundreds of years -- trial by ordeal, burning at the stake, capital and corporal punishment. Then, there were no second chances. Now there are. No court, and no prosecutor, wants to see an offender with any chance of leading a law-abiding life in the future being crushed by an onerous penalty that will leave no hope for the future.

.. is a NSW Crown prosecutor. This is an edited extract from her Sir Ninian Stephen Lecture at the University of Newcastle on Thursday. Caption: Balance: Every time a guilty person is acquitted, Cunneen says, the law has failed the community Mus: Photo Column: Inquirer Section: FEATURES Type: Feature"

The Bar rules and Prosecution Guidelines 34 The New South Wales Bar Rules were made under s 57A of the Legal Profession Act 1987 (NSW). They now derive from s 702 of the Legal Profession Act 2004 (NSW). They apply to any barrister who appears for the Crown in criminal proceedings. Under the heading, Advocacy Rules, are gathered a number of principles which must be followed by barristers, including Rule 20, which provides a prohibition on barristers expressing their personal views in relation to any material evidence or material issue in the case. 35 Under a general heading Integrity of Hearings Rules 59, 60 and 61 provide obligations of a general nature relating to all barristers. Rules 59 and 60 are relevant to the present proceedings. 36 Bar Rule 59 relates to publication by a barrister of material concerning current proceedings and is in the following terms: Rule 59 "A barrister must not publish, or take steps towards the publication of, any material concerning current proceedings in which the barrister is appearing or has appeared, unless: (a) the barrister is merely supplying, with the consent of the instructing solicitor or the client, as the case may be: (i) copies of pleadings or court process in their current form, which have been filed, and which have been served in accordance with the court's requirements; (ii) copies of affidavits or witness statements, which have been read, tendered or verified in open court, clearly marked so as to show any parts which have not been read, tendered or verified or which have been disallowed on objection; (iii) copies of the transcript of evidence given in open court, if permitted by copyright and clearly marked so as to show any corrections agreed by the other parties or directed by the court; (iv) copies of exhibits admitted in open court and without restriction on access; or (v) copies of written submissions, which have been given to the court, and which have been served on all other parties; or (b) the barrister, with the consent of the instructing solicitor or the client, as the case may be, is answering unsolicited questions from journalists concerning proceedings in which there is no possibility of a jury ever hearing the case or any re-trial and: (i) the answers are limited to information as to the identity of the parties or of any witness already called, the nature of the issues in the case and the nature of the orders made or judgment given including any reasons given by the court; (ii) the answers are accurate and uncoloured by comment or unnecessary description; and (iii) the answers do not appear to express the barrister's own opinions on any matters relevant to the case." 37 Bar Rule 60 is in the following terms: "60. A barrister will not have breached Rule 59 simply by advising the client about whom there has been published a report relating to the case, and who has sought the barrister's advice in relation to that report, that the client may take appropriate steps to present the client's own position for publication. 38 Particular provision is made by the Rules for the obligation of prosecutors. Under the heading "Prosecutor's duties" the Rules impose obligations on a prosecutor in the discharge of that role in a particular case. We have included them below. Some of those obligations relate directly to activities carried out in public in the court room, where they can be supervised by the judge. Others relate to activities and decisions made by the prosecutor in the course of the trial, but which may not take place in open court. Of these, the most significant is the obligation which a prosecutor has to ensure that the court is given the benefit of the "whole picture" and not just material which assists the Crown case. We have reproduced the relevant portions of the Rules: "62. A prosecutor must fairly assist the court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the court, and must seek to assist the court with adequate submissions of law to enable the law properly to be applied to the facts. [ Amended Gazette No. 66 of 20 June 1997 p 4558 ] 63. A prosecutor must not press the prosecution's case for a conviction beyond a full and firm presentation of that case. 64. A prosecutor must not, by language or other conduct, seek to inflame or bias the court against the accused. cf. Ex parte Bread Manufacturers, Re Truth and Sportsman (1937) 37 S.R. (N.S.W.) 242 per Jordan CJ at 248-50, and Attorney-General v. Times Newspapers [1974] A.C. 273 per Lord Diplock at 313 18 65 A prosecutor must not argue any proposition of fact or law which the prosecutor does not believe on reasonable grounds to be capable of contributing to a finding of guilt and also to carry weight. 66. A prosecutor must disclose to the opponent as soon as practicable all material (including the names of an means of finding prospective witnesses in connexion with such material) available to the prosecutor or of which the prosecutor becomes aware which could constitute evidence relevant to the guilt or innocence of the accused, unless: (a) such disclosure, or full disclosure, would seriously threaten the integrity of the administration of justice in those proceedings or the safety of any person; and (b) the prosecutor believes on reasonable grounds that such a threat could not be avoided by confining such disclosure, or full disclosure, to the opponent being a legal practitioner, on appropriate conditions which may include an undertaking by the opponent not to disclose certain material to the opponent's client or any other person. 66A. A prosecutor who has decided not to disclose material to the opponent under Rule 66 must consider whether: (a) the defence of the accused could suffer by reason of such non-disclosure; (b) the charge against the accused to which such material is relevant should be withdrawn; and (c) the accused should be faced only with a lesser charge to which such material would not be so relevant. see, e.g., Anderson (1991) 53 A Crim R 421 per Gleeson CJ at 449, 453 66B. A prosecutor must call as part of the prosecution's case all witnesses: (a) whose testimony is admissible and necessary for the presentation of the whole picture; (b) whose testimony provides reasonable grounds for the prosecutor to believe that it could provide admissible evidence relevant to any matter in issue; (c) whose testimony or statements were used in the course of any committal proceedings; (d) from whom statements have been obtained in the preparation or conduct of the prosecution's case; unless: (e) the opponent consents to the prosecutor not calling a particular witness; (f) the only matter with respect to which the particular witness can give admissible evidence has been dealt with by an admission on behalf of the accused; or (g) the prosecutor believes on reasonable grounds that the administration of justice in the case would be harmed by calling a particular witness or particular witnesses to establish a particular point already adequately established by another witness or other witnesses; provided that: (h) the prosecutor is not obliged to call evidence from a particular witness, who would otherwise fall within (a)-(d), if the prosecutor believes on reasonable grounds that the testimony of that witness is plainly untruthful or is plainly unreliable by reason of the witness being in the camp of the accused; and (i) the prosecutor must inform the opponent as soon as practicable of the identity of any witness whom the prosecutor intends not to call on any ground within (f), (g) and (h), together with the grounds on which the prosecutor has reached that decision. 67. A prosecutor who has reasonable grounds to believe that certain material available to the prosecution may have been unlawfully obtained must promptly: (a) inform the opponent if the prosecutor intends to use the material; and (b) make available to the opponent a copy of the material if it is in documentary form. 68. A prosecutor must not confer with or interview any of the accused except in the presence of the accused's representative. 69. A prosecutor must not inform the court or the opponent that the prosecution has evidence supporting an aspect of its case unless the prosecutor believes on reasonable grounds that such evidence will be available from material already available to the prosecutor. 70. A prosecutor who has informed the court of matters within Rule 69, and who has later learnt that such evidence will not be available, must immediately inform the opponent of that fact and must inform the court of it when next the case is before the court. 71. A prosecutor must not seek to persuade the court to impose a vindictive sentence or a sentence of a particular magnitude, but: (a) must correct any error made by the opponent in address on sentence; (b) must inform the court of any relevant authority or legislation bearing on the appropriate sentence; (c) must assist the court to avoid appealable error on the issue of sentence; (d) may submit that a custodial or non-custodial sentence is appropriate; and (e) may inform the court of an appropriate range of severity of penalty, including a period of imprisonment, by reference to relevant appellate authority."

The Prosecution Guidelines 39 The Prosecution Guidelines of the Office of the Director of Public Prosecutions are issued pursuant to s 13 of the Director of Public Prosecutions Act 1986. When furnished to a prosecutor, that prosecutor is "subject to the guidelines" s 15(2). They apply to any legal practitioner representing the interests of the Crown. 40 Guideline 2 provides a general statement of the Role and Duties of a Prosecutor. The Guideline stresses that "it is essential that it be carried out with the confidence of the community in whose name it is performed." 41 Guideline 3 provides that a prosecutor must "act impartially and fairly according to law." Guideline 18 provides obligation of disclosure. Guideline 19 provides for the relationship between prosecutors and victims of crime. 42 Guideline 32 provides for media contact. Relevant portions of the guidelines are: "The functions of the ODPP bring it into contact with the media (which expression includes public reporters and commentators of all kinds). This cannot and should not be avoided as the public have a right to (and should) know what is happening publicly in the criminal justice process. However, there is a need to ensure that prosecutors are aware of the limits of their professional obligations and of the rights of others and are sensitive to the way in which their comments and conduct may be reported. No public comment concerning matters referred to the ODPP for advice is to be made without the Director's approval. Jury trials require that the evidence be presented in a way that makes it (for the most part) immediately accessible to the media. In committal proceedings in the Local Court that usually will not be the case because of the use of written statements by witnesses. … All legal practitioners (solicitors and barristers) are bound by Bar Rule 59 of the Barristers' Rules (see Appendix B ) which provides as follows: … This rule should be read carefully and understood. For the purposes of Rule 59, in proceedings in which ODPP lawyers, Crown Prosecutors or private counsel appear, the Director is the "client". In special cases where particular sensitivity may be required (and legal practitioners should exercise judgment so as to identify such cases) there may be a need to refer to the Director for instructions on how to proceed; but generally the instructions are as follows. 1. There is no general obligation to provide information to the media. 2. There must be compliance with Bar Rule 59, except for the following matters. 3. Notwithstanding Bar Rule 59, the names and addresses of victims and addresses of other witnesses who are to be or have been called in court proceedings should not be supplied to the media. Information already given in open court (including names and addresses) may be confirmed. Care should also be taken in any case to ensure that the identities of witnesses such as prisoners, informers and others who are giving evidence at some personal risk are kept confidential (so far as is possible) and are not disclosed to the media. 4. Not withstanding Bar Rule 59, true copies of open exhibits (including paper Photographs and prints, but excluding videotapes and audiotapes of recorded interviews, re-enactments, demonstrations and identifications and digital photographs and recordings) may be inspected by the media after being admitted (if convenient ). It is permissible and appropriate if requested by the media for an officer to give his or her name and indicate that the prosecution is being conducted by the ODPP. It is not appropriate to discuss with the media the likely result of proceedings or the prospect of appellate proceedings being instituted, a matter being discontinued or an ex officio indictment being filed. It is not appropriate to comment to the media on the correctness or otherwise of any determination of a court. In trials, rulings on evidence and all matters in the absence of the jury (where one is to be or has been empanelled) should not be commented upon, other than to remind the media that they should not be reported during the trial. Discretion should be exercised in relation to sensitive material (eg. medical reports, pre-sentence reports) or material produced under compulsion, where it may be more appropriate to direct inquiries to the court. Medical (including psychiatric and psychological) reports on offenders and victims should not be made available to the media by the prosecution." 43 The obligation not to comment to the media on the correctness of any determination of a court is significant in this case

Ms Cuneen's address and the Bar Rules and Prosecution Guidelines. 44 During the course of her address Ms Cunneen referred to portions of the Bar Rules and DPP Prosecution Guidelines. She was clearly aware of them, and had brought them to mind when preparing her address. Notwithstanding that she was aware of the guidelines she either deliberately, or without sufficient reflection, breached them. 45 The combination of Bar Rule 59 and the Prosecution Guidelines prohibit publication by a prosecutor, or the taking of steps towards publication of any material concerning current proceedings in which the barrister is appearing or has appeared. Ms Cunneen breached the Rule both in relation to the first trial of the applicant, his appeal and subsequent retrial. Her address included an account of the telephone conversation admitted at the first trial but rejected on appeal. 46 When introducing the account of the applicant's trial and appeal process Ms Cunneen speaks of "the merely presumed innocent" (the full text is at [23] in which she includes the appellant, the inference being that he is in fact guilty. That inference is reinforced by her comments on the outcome of criminal appeals which she said "result in retrials due to very minor matters which seem most unlikely to have made any difference to the verdict of the jury." This remark follows soon after her discussion of the appellate process which ordered the retrial of the applicant, giving rise to the inevitable inference that the retrial was unnecessary and that the applicant is guilty. 47 The Prosecution Guidelines contain additional specific obligations concerning a prosecutor's relationship with the media. In particular "comment to the media on the correctness or otherwise of any determination of a court" is "not appropriate." During the course of her address (the passage is repeated in the publication in the Weekend Australian) and immediately following an account of the circumstances of the applicant's trial and retrial, Ms Cunneen says "If justice, in the criminal jurisdiction, means that the innocent are acquitted and the guilty are convicted, the adversarial system may seem routinely to achieve the former but rather often to fail the latter." This can only be construed as reflecting Ms Cunneen's view that the applicant is guilty. 48 When the applicant's solicitor's complaint was considered by the Legal Services Commissioner he found that Bar Rule 59 had been breached and that, if brought before the Tribunal, "it is reasonably likely that … Ms Cunneen would be found guilty of unsatisfactory professional conduct." The Commissioner accepted that Ms Cunneen did not provide the text of her address to AAP. The report in the Australian of 11 March 2005 shows AAP as the source. However, the position is otherwise in relation to the article in the Daily Telegraph. As we have indicated the article in the Weekend Australian of 12 March was published under Ms Cunneen's name. The Commissioner does not comment on the source of the material for the latter two publications. 49 On the hearing of this application the Crown submitted that the address by Ms Cunneen should be accepted as a legitimate attempt by her to raise serious matters of principle in relation to the administration of the criminal law in an academic forum. It was argued that Ms Cunneen was entitled to put her views on matters of public interest, supported by reference to decisions of the courts. It was submitted that her address was balanced, considering both sides of the issues which she raised. 50 We regret that we cannot accept this description of the address. There is no doubt that Ms C has suffered a terrible ordeal, the impact of which has been exacerbated by the trial and appellate process. Ms Cunneen is quite entitled on an appropriate occasion to draw attention to that ordeal and suggest systemic reform which may ameliorate the problems. But Ms Cunneen's address went considerably beyond those matters. As we have indicated in our view Ms Cunneen was telling the listener that in her opinion the applicant was guilty and that, although his appeal was successful, it succeeded on minor matters the jury having correctly determined the applicant's guilt. Although her address was made to an audience comprised of many law students, it was a public occasion on which she chose to speak about trials which attracted considerable publicity. It was inconceivable that, even if she herself took no steps to bring the address to the attention of the press, others would not do so. 51 We also accept that on an appropriate occasion Ms Cunneen was entitled to discuss the relative merits of the adversarial and inquisitorial system of justice. However, in her address she made plain that she was of the opinion that in the case of the applicant the adversarial system had failed, favouring the interests of the applicant over those of the complainant. 52 The Legal Services Commissioner determined that although Ms Cunneen had breached Bar Rule 59 it "was in no way deliberate, being a technical contravention of a complex rule deriving from an error of judgment." He determined to dismiss the complaint under s 155(3)(b) of the Legal Profession Act 1987. 53 It is not for this Court to review the decision of the Commissioner. However, in our opinion the Rule and Guideline which Ms Cunneen breached are not complex. Her obligations were clear. She was to refrain from publishing material concerning the appellant's trial, appeal or retrial. The Court of Criminal Appeal had reminded her that she was not to comment to the media on any trial. Notwithstanding that reminder she spoke out on an occasion when she must have realised that there was a real possibility that she would be reported. 54 The Bar Rules and Prosecution Guidelines embody the obligations of a prosecutor which have evolved over time. Although given statutory force they have been developed from practices sanctioned by the courts and have been designed to ensure that an accused person receives a fair trial. The overriding principle is that a prosecutor has a duty to act fairly. Any breach of the Rules or Guidelines by a prosecutor, particularly when the trial process is not complete, may bring into question the integrity of a trial prosecuted by that prosecutor.

The decision of the trial judge 55 The applicant originally applied to the trial judge for relief on 13 February 2007. However, his Honour declined to hear the matter and an application was made to this Court. That application was discontinued when the Crown indicated that it would join with the applicant in a submission that the trial judge had jurisdiction to deal with the matter. 56 A further application was heard by the trial judge. It was refused. His Honour gave detailed reasons. 57 The trial judge commenced by reciting the fact that the prosecutor (Ms Cunneen) had prosecuted the accused at his first trial and was later heard to comment on the quality of the police investigation and "the fortitude of the victim" on radio and television. This comment was made after the conclusion of the trial of alleged co-offenders. His Honour referred to Ms Cunneen's address to the University of Newcastle Law School and found that the "remarks of the present Crown Prosecutor were widely published", in particular her remarks about the misplaced altruism of some defence counsel received significant exposure in the media. 58 His Honour records the submissions of the applicant which in summary were: · The Crown Prosecutor has shown such a lack of objectivity that the impartiality of the criminal justice system based on anonymous crown prosecutors presenting on behalf of the State would be compromised if the prosecutor continued to prosecute the trial. · Because the Crown Prosecutor has effectively given a "public character reference" to the police and the complainant and furthermore is recognised as an "expert commentator in the field" the applicant may because of the pre-trial publicity be denied a fair trial. The balance between the interests of the accused and the community had been irreparably upset by the pre-trial publicity given to the Crown Prosecutor's remarks (see Jago v The District Court of NSW (1989) 168 CLR 23). 59 It was agreed before his Honour that a trial judge in the District Court has the power to order a stay of a trial in the exercise of an implied power to prevent an abuse of process. 60 Having recited counsel's submissions his Honour turned his mind to the test which should be applied when determining the application. His Honour said: "I consider that the test to be applied in the present circumstances is whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice requires that the present Crown Prosecutor should be prevented from prosecuting the accused, see Regina v Khazaal 2006 NSW SC 1353. There is a duty on a court once an indictment is presented to try any accused person. Section 7 of the Director of Public Prosecutions Act of 1986 provides that the principal function and responsibilities of the Director of Public Prosecutions are, inter alia, to institute and conduct on behalf of the crown prosecutions (whether on indictment or summarily) for indictable offences in the Supreme Court and the District Court. The function of the Director of Public Prosecutions so far as conducting prosecutions, are conducted by a crown prosecutor. Section 5 of the Crown Prosecutors Act of 1986 states that the functions of a crown prosecutor are to conduct and appear as counsel in proceedings on behalf of the Director. In considering an implied power of the court I have taken into account what was stated by the Court of Appeal in John Fairfax Publications Pty Limited and Anor v District Court of New South Wales 2004 New South Wales Court of Appeal at 324, where it was said that the test of implication is a test of necessity. It was stated by the Court of Appeal that the court has powers which are necessary to enable it to act effectively. The court does not have power in relation to appointing a crown prosecutor to conduct proceedings on behalf of the Director of Public Prosecutions. That is a power which the Director of Public Prosecutions has. The court, as previously stated, has a duty and is obliged to try an accused person on an indictment presented against that person. It is for the crown to adduce evidence in any trial of an accused person upon which a jury, properly directed, can find whether the crown has proved the case against an accused person beyond reasonable doubt. It is for the trial judge to ensure that an accused person has a fair trial. The trial judge, and as I have stated the trial is at present listed before me, has the power, and I consider ought to address the jury in this case, that a fair trial can only occur if the jury determines whether or not the crown has proved the case beyond reasonable doubt on evidence properly adduced before it." 61 His Honour then proceeded to consider the matters relevant to the application of the test which he had formulated. After recognising the role of a Crown Prosecutor in adducing evidence at the trial sufficient for a jury properly directed to prove the case against an accused person beyond reasonable doubt, his Honour stated that "it is for the trial judge to ensure that an accused person has a fair trial." His Honour then said: "I consider that a jury ought be warned at the commencement of a trial that they ought not take into account any information they may have gleaned from any pre-trial publicity in relation to an accused person, and are to determine whether or not the crown has proved its case on evidence before it, and that evidence alone. In the circumstances of this case I also consider that a jury ought be advised that they should not connect the accused with any offences on 30 August of 2000 by reason of the racial origin of the accused or the nature of the offences, or of any prior association with other persons in relation to events on 30 August 2000. Bearing in mind what the Court of Appeal stated in John Fairfax Publications Pty Limited and Anor v District Court of New South Wales I do not consider that it is necessary in the effective administration of justice to stay the proceedings for the limited time, that is until such time as the Director of Public Prosecutions appoints another Crown Prosecutor. I consider that any perceived problems in relation to a fair trial can be properly addressed by me, the trial judge. Whilst, because of pre-trial publicity, members of the jury might become aware of the actual name of the Crown Prosecutor, I am not satisfied that a fair minded reasonably informed members of the public would conclude that the proper administration of justice requires that the present Crown Prosecutor should be prevented from prosecuting the accused. The court will at all times endeavour to retain the anonymity of the Crown Prosecutor. I consider that the direction that would have to be given in relation to submissions by the crown and in opening address, that that is not the evidence upon which the crown relies, and the jury must determine whether or not the crown has proved its case beyond reasonable doubt on the evidence and evidence alone adduced before them, would obviate any risk arising if perchance the name of the Crown Prosecutor came to the knowledge of the jury. That would be the case I consider even if a member of the jury was aware of the name of the Crown Prosecutor although again I will be careful to indicate to the jury in waiting that if any member has knowledge of any personality in the court, including the Crown Prosecutor or representatives of the defence, or even myself, they should come forth and indicate same prior to any empanelling of the jury. I accordingly dismiss the motion before me." 62 His Honour also determined the second prayer in the motion finding that there had been no conduct by the Crown Prosecutor "in these proceedings to date before me which shows that it would be necessary for the court to restrain the Crown Prosecutor to enable the court to act effectively in the trial of the accused."

Submissions on this application 63 The applicant recognised that when rejecting the applicant's application the trial judge exercised a discretion. The applicant carries the onus of establishing that a stay or the other relief sought should be granted. His counsel accepted that the decision of the trial judge will only be set aside by this Court if error can be demonstrated: House v R (1936) 55 CLR 499. 64 The applicant submitted that his Honour erred. In summary the submissions were: · The applicant submitted that although his Honour considered whether the trial process could be effectively managed, and concluded that it could, the trial judge failed to consider whether the conduct of the Crown Prosecutor and the media reporting of her conduct and statements had the consequence that a reasonably informed member of the public would conclude that a trial of the applicant prosecuted by Ms Cunneen would not be fair. The applicant stressed that although his Honour was satisfied that by application of the conventional process and directions justice may be done nothing could cure the fact that the trial would not be seen to be just. By reason of the Crown Prosecutor's conduct it was submitted that a trial of the applicant which she prosecuted would be seen to lack the "objectivity and impartiality" identified by Sully J as fundamental to the proper functioning of the criminal justice process. · A fair minded observer would not only conclude that by reason of her conduct a trial prosecuted by Ms Cunneen would not appear to be fair but the situation was aggravated by the fact that the applicant, through his solicitor, had formally complained about her conduct to the relevant bodies. It was submitted that his Honour failed entirely to have regard to this fact. · The trial judge accepted that there was a risk that the trial may be unfair but that it was a risk which his Honour could manage. It was submitted that rather than rely on the management of the trial, with the risk that a miscarriage of justice may occur requiring yet another trial another prosecutor should be appointed. The trial would inevitably be attended by strong emotional tensions accompanied by constant and sensational media reporting demanding particular discipline of counsel if that atmosphere was not to infect the trial itself. · His Honour erred by determining that the decided cases including civil trials were of no relevance. The applicant submitted that if the court could exercise control over counsel appearing in a civil proceeding in order to ensure a fair trial, that power was more readily available to protect the fair trial of a citizen charged with an indictable criminal offence.

Discussion 65 It is fundamental to our legal system that an accused person is entitled to a fair trial according to law: see Jago v District Court (NSW) (1989) 168 CLR 23 at 56. As Deane J, in Jago, recognised the notion of fairness "which has inspired much of the traditional criminal law of this country defies analytical definition." Although relevant general propositions may be formulated and examples from past experience identified, an "essentially intuitive judgment" is involved. In Subramaniam v R (2004) 211 ALR 1 the High Court in a joint judgment said: "It may now also be accepted however that the categories of factual situations which may call for a consideration of the possibility of abuse of process in criminal proceedings are not closed Walton v Gardiner (1993) 177 CLR 378 at 393; 112 ALR 289 per Mason CJ, Deane and Dawson JJ; see also Jago v District Court (NSW) (1989) 168 CLR 23 at 31; 87 ALR 577 at 581-2; Barton v R (1980) 147 CLR 75 at 95-6; 32 ALR 449 at 458-60. As Mason CJ, Deane and Dawson JJ said in Walton v Gardiner (1993) 177 CLR 378 at 393; 112 ALR 289 at 298, the inherent power of a superior court to stay proceedings on the ground of 'abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness.' Fairness or unfairness has been said to defy "analytical definition" and to "involve an undesirably, but unavoidably, large content of essentially intuitive judgment" Jago v District Court (NSW) (1989) 168 CLR 23 at 57; 87 ALR 577 at 601. Deane J in Jago (1989) 168 CLR 23 at 57; 87 ALR 577 at 601 posed some examples of unfairness: default or impropriety on the part of the prosecution in pre-trial procedures, or the concealment of evidence from an accused person that may have assisted his or her defence. Others may include conviction on evidence truly not probative; compulsion upon an accused to incriminate himself or herself; the exaction of involuntary confessions or R v Swaffield (1998) 192 CLR 159; 151 ALR 98 failure to hold committal proceedings Barton v R (1980) 147 CLR 75 at 100-1; 32 ALR 449 at 462-4; the absence of legal representation of an indigent person facing serious criminal proceedings Dietrich v R (1992) 177 CLR 292; 109 ALR 385; and, unreasonable delay." 66 There is more than one interest involved in the trial of a person accused of committing a crime. The Crown has an interest in prosecuting an alleged breach of the law, the accused has an interest in being tried according to law and, as Toohey J said in Jago, there is a "public interest that charges of serious offences be disposed of but that they be disposed of at a hearing which is fair and not oppressive to the person charged" (p 72). 67 An accused is entitled to be tried by a tribunal that is both independent and impartial. The origin of this principle was explained in the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 where their Honour's said: "Fundamental to the common law system of adversarial trial is that it is conducted by an independent and impartial tribunal. Perhaps the deepest historical roots of this principle can be traced to Magna Carta (with its declaration that right and justice shall not be sold ( Holdsworth, A History of English Law , 6th ed (1938), vol 1, pp 57-58)) and the Act of Settlement 1700 (UK) (12 and 13 Wm 3, c 2) (with its provisions for the better securing in England of judicial independence (cf as to the colonies Terrell v Secretary of State for the Colonies [1953] 2 QB 482 at 492-493, per Lord Goddard CJ)). It is a principle which could be seen to be behind the confrontation in 1607 between Coke CJ and King James about the supremacy of law (Holdsworth, A History of English Law , 2nd ed (1937) vol 5, p 430). It could be seen to be applied when Bacon was stripped of office and punished for taking bribes from litigants (Holdsworth, A History of English Law , 2nd ed (1937) vol 5, p 430). Many other examples could be drawn from history. It is unnecessary, however, to explore the historical origins of the principle. It is fundamental to the Australian judicial system." 68 Application of the principle is relatively uncomplicated when the suggestion is of actual bias in a judicial officer or juror. It is more complicated when the suggestion is that the judicial officer or juror is affected by apprehended bias. In that case "the governing principle is that … a judge is disqualified if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done" p 344. 69 The joint judgment said of the principle "that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined" p 345. 70 A fair trial requires that not only must justice be done but it must be seen to be done. The appearance of a just trial is as important as its actuality. Without the community's confidence the system of justice will be diminished to the detriment of the rule of law. 71 Courts have on occasions intervened in a civil trial to deny a party counsel of their choice in order to protect the integrity of the judicial process. In Grimwade v Meagher (1995) 1 VR 446 Mandie J restrained counsel from appearing for a plaintiff in a civil trial when he had previously appeared to prosecute the defendant in separate criminal proceedings. Mandie J concluded that there was "a real and sensible risk of a lack of objectivity" by counsel which gave rise both to a risk of unfairness to the defendant in the civil trial and concern for the integrity of the judicial process and the administration of justice. His Honour concluded that: "A fair minded reasonably informed member of the public would conclude that the proper administration of justice required that the first defendant be prevented from appearing in the said action because of the real risks of lack of objectivity and of conflict of interest and duty … " p 455 72 The relevant principles were comprehensively considered by Brereton J in Kallinicos & Anor v Hunt & Ors (2005) 64 NSWLR 561. In that case his Honour restrained a solicitor who was likely to be a witness on a controversial issue from acting for a defendant in a civil suit. After a review of the authorities his Honour identified the inherent jurisdiction of a superior court to control its processes in aid of the administration of justice. His Honour determined that: "The test to be applied in this inherent jurisdiction is whether a fair minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice [76]." 73 In R v Khazaal [2006] NSWSC 1353 Whealy J was required to consider the application of these principles in relation to defence counsel at a forthcoming criminal trial. Whealy J said: "There is ample authority to support the proposition that the Court has an inherent jurisdiction to protect the integrity of the judicial process. The principle has often been called in aid in circumstances where a solicitor has acted for two parties on a previous occasion, and is then called upon to act for one of those parties against the other. More often than not, it will arise because of the fact that the solicitor possesses confidential information which may be used adversely to the interests of the former client. Other instances have turned, not so much on the protection of confidential information, but on the Court's concern to ensure that justice and appearance of justice be done ( Black v Taylor (1993) 3 NZLR 403). In Kallinicos & Anor v Hunt & Ors [2005] 64 NSWLR 561, the Court ordered that a solicitor cease to act for the defendants in a civil suit. This was because the solicitor was likely to be a material witness on a controversial issue of substance; and his evidence and the propriety of his conduct would come under scrutiny, such that he would be in a position in which his interests, the interests of his former client and his obligations to the Court might well be in conflict. In that case, Brereton J made a thorough review of the authorities on the point. After examining differences between authorities in New South Wales, Victoria and the United Kingdom, his Honour summarised the current position in New South Wales at para 76 (citations omitted). s However, the Court always had inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its processes in aid of the administration of justice. s The testimony to be applied in this inherent jurisdiction is whether a fair minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice. s The jurisdiction is to be regarded as exceptional and is to be exercised with caution. s Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause. s The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief. See also Spincode v Look Software Pty Limited [2001] 4 VR 501 at [58]. The categories may overlap because in some cases the possession of confidential information may give the lawyer an unfair or improper advantage such that it would compromise the integrity of the judicial process for him to continue to act. A case which may be more useful in the context of the present motion is Grimwade . The first defendant had been retained as senior counsel to prosecute the plaintiff in relation to certain alleged criminal offences involving commercial dishonesty. The prosecutor appeared in the committal proceedings, during an aborted first trial and in a second trial of exceptional and unusual length. The plaintiff was convicted at the conclusion of this trial but successfully appealed to the Court of Criminal Appeal where it was decided that a third trial should not be ordered. In handing down its judgment, the Court of Criminal Appeal was critical of the conduct of the prosecutor at the second trial. The first defendant was retained as senior counsel for the plaintiffs in civil proceedings involving related issues. Sir Andrew Grimwade sought an order restraining the first defendant from appearing for those other persons in the civil proceedings. After collecting and discussing the principles in a number of earlier authorities, Mandie J said at 452: - 'I would respectfully adopt all of the above quoted statements of principle. In my view it cannot be doubted that this Court likewise has an inherent jurisdiction to ensure the due administration of justice and to protect the integrity of the judicial process and as part of that jurisdiction, in an appropriate case, to prevent a member of counsel appearing for a particular party in order that justice should not only be done but manifestly and undoubtedly be seen to be done. The objective test to be applied in the context of this case is whether a fair minded reasonably informed member of the public would conclude that the proper administration of justice required that counsel be so prevented from acting, at all times giving due weight to the public interest that a litigant should not be deprived of his or her choice of counsel without good cause.' Mandie J came to the conclusion that a fair-minded and informed observer would apprehend a real risk that the former prosecutor would, albeit unintentionally, lack the objectivity required of counsel in order to perform his duty to his client and to the Court. His Honour held that, "in the unique, extraordinary and highly exceptional circumstances", the former prosecutor should be restrained from appearing. It is agreed between the parties that the Grimwade test should be applied to the circumstances of this matter." 74 In Szabo (2000) 112 A Crim R 215 the Court of Appeal in Queensland considered an appeal from a person convicted after trial of burglary and rape. Defence counsel had not disclosed to the appellant that he had previously had an intimate relationship with the prosecutor for which there was a reasonable possibility of renewal. 75 Thomas JA records the submission by the appellant that the principles of the test of apparent bias should be applied, not only to decision makers but also to counsel appearing for a party at the trial. However, his Honour comments that the authorities dealing with apparent bias "do not automatically accommodate" to the case the court was required to consider. Instead his Honour looked to the power of the court to set aside a conviction when it considers that there had been a miscarriage of justice. De Jersey CJ agreed with the reasons of Thomas JA. 76 Davies JA differed from the majority accepting that the appropriate test was "whether a fair minded person, in the position of either the appellant or a member of the public, might reasonably apprehend, that because of defence counsel's relationship with the prosecutor or its consequences, the appellant was deprived of a fair trial Livesey v NSW Bar Association (1983) 151 CLR 288 at 294-295; Webb & Hay v The Queen (1994) 181 CLR 41 at 53; 265 [15]". 77 All members of the court agreed that the appellant's conviction should be quashed. Although hesitant to intervene, Thomas JA ultimately concluded that the "importance of maintaining full confidence in the integrity and impartiality of those entrusted with the administration of justice, and in particular counsel" should inform the test to be applied [80].

Resolution of this application 78 In this state trials on indictment are prosecuted by barristers appointed by the Director of Public Prosecutions to perform that role in a particular case. In order to protect the integrity of the trial process and ensure that it is not only fair, but seen to be fair, evidentiary and procedural rules have been provided by statute and adopted by the courts. They include discrete obligations which are imposed upon a crown prosecutor. We have already discussed those obligations. 79 In Whitehorn v The Queen (1983) 152 CLR 657 Deane J exposed the independent nature of the prosecutor's function in a trial under the adversary system. One important element of that role is that it is for the prosecutor to decide which witnesses should be called. Deane J said: "Under the adversary system which operates in a criminal trial in this country, it is for the Crown and not the judge to determine what witnesses are called by the Crown. That is not to say that the Crown is entitled to adopt the approach that it will call only those witnesses whose evidence will assist in obtaining a conviction. Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to except that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one. The consequence of a failure to observe the standards of fairness to be expected of the Crown may be insignificant in the context of an overall trial. Where that is so, departure from those standards, however regrettable, will not warrant the interference of an appellate court with a conviction. On occasion however, the consequences of such a failure may so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial. As a general proposition, that will, of itself, mean that there has been a serious miscarriage of justice with the consequence that any conviction of the accused should be quashed and, where appropriate, a new trial ordered (Criminal Law Consolidation Act, s. 353; Reg. v. Clewer (1953) 37 Cr App R 37, at pp. 39-40). If there be exceptions to that general proposition, they do not presently occur to me." 80 The duties of a prosecutor were considered by the Court of Appeal of Victoria in Cannon & Anor v Tahche (2002) 5 VR 317. 81 It will be apparent that there are two interests which the law must consider. One is the right of an accused person or litigant to a fair trial. That interest will be protected so that the trial is conducted according to law and is decided by a tribunal free of bias. The law will also ensure that the trial process appears to the ordinary fair minded person to be fair. Justice must not only be done but must be seen to be done. 82 This Court has recently had occasion to consider the appropriate behaviour of a crown prosecutor in the course of a trial. Many of the decisions are collected in Livermore v R (2006) NSWCCA 334. Central to the obligations of a crown prosecutor during a trial is that he or she "fairly and impartially exhibit all the facts to the jury" R v McCullough (1982) 6 A Crim R 274. 83 However, because of the special role of crown prosecutors in the criminal justice system they are subject to obligations beyond the court room, both before and after any trial. The relevant Bar Rules and Prosecution Guidelines have been made with the object of ensuring that crown prosecutors conduct themselves in a manner which will ensure the integrity of the criminal justice system. A breach of them may diminish public confidence in that system. In an exceptional case it may be necessary for the courts to intervene to ensure that public confidence is maintained. 84 The trial judge said that he would apply the test of whether a fair minded reasonably informed member of the public would consider that the proper administration of justice required that Ms Cunneen be removed as the prosecutor. However, his Honour did not, in our opinion, consider all of the factual matters which required consideration in the application of that test. We accept that the trial judge does have a capacity to control the course of the trial and, to some extent the conduct of counsel including the prosecutor. However, as recent experience in this Court demonstrates, there have been occasions when prosecutors have fallen short of the standard of conduct required of them in court, resulting in a miscarriage of justice, requiring an order for a new trial. These problems usually have their source in the excessive zeal of the prosecutor, who in an endeavour to persuade the jury of the accused's guilt leaves aside the fairness and detachment required. 85 We have previously concluded that Ms Cunneen breached both Bar Rule 59 and the Prosecution Guidelines. She both published material concerning a current trial and commented in a forum, where the media would be likely to take up her comments, on the correctness of judgments of the court. The breaches were either deliberate or made without adequate reflection as to the obligations of a crown prosecutor. 86 The statements which Ms Cunneen made have a number of consequences. They demonstrate a lack of detachment from the case she was required to prosecute. There is no difficulty in Ms Cunneen privately holding the view that the applicant is guilty. However, her public expression of that view displayed partiality and potentially compromised her capacity to fairly prosecute on behalf of the Crown. It had the consequence that a fair minded person might reasonably conclude that her conduct of the prosecution would be directed to vindicating her publicly expressed view. When a prosecutor on a public occasion expresses the view that a person is guilty, although they have not been tried according to law, the later prosecution of that person by that prosecutor tends toward oppression which is the antithesis of a fair trial. 87 The difficulty created by a breach of Bar Rule 59 when an advocate publicly speaks of the merit of a client's case before trial may not be so acute in ordinary civil litigation. Even then the Rule prohibits such statements in order to ensure the appearance of detachment and objectivity. The position is significantly different when a prosecutor breaches the Rule. As we have outlined a crown prosecutor is afforded a unique role in a criminal trial. He or she has the carriage of the Crown case and has the responsibility of making decisions as to the evidence which is placed before the court. Unlike some other jurisdictions, and in particular, the inquisitorial system a judge has little if any role to play in the evidence produced at the trial see R v Apostilides (1984) 154 CLR 563. 88 That responsibility must be approached with fairness and detachment with the objective of establishing the truth. If, by reason of their prior conduct, a crown prosecutor has demonstrated that in a particular case they may not be able to discharge their obligations in that manner the legitimacy of the prospective trial will be compromised. This is not to say that in a particular case those obligations will not be appropriately discharged, but a reasonable observer would conclude that they may not be. 89 That risk is more acute in this case. As we have indicated the applicant's solicitor complained, inter alia, to the Legal Services Commissioner about her conduct. Although the complaint was dismissed and described as an error of judgment, the Commissioner found that, if the matter came before the Tribunal, Ms Cunneen would be likely to be found guilty of unsatisfactory professional conduct. 90 There could be no doubt that a judge who had been the subject of a serious complaint by a litigant to the NSW Judicial Commission could not sit in judgment of a case brought by that person. Similarly as the obligation resting upon a prosecutor is one of fairness and detachment, the fact that a complaint was made to the Commissioner which was not frivolous or vexatious, would give rise to a concern in the mind of a reasonable person that the Crown Prosecutor may not maintain the detachment required if the accused is to have a fair trial. 91 That is not to say that in any case where complaint is made about a prosecutor that person must stand aside. Spurious complaints made for ulterior purposes must always be a possibility. Each case requires its own consideration. 92 There are further matters. By speaking publicly as she did Ms Cunneen revealed her considerable sympathy for the complainant in her ordeal. That Ms Cunneen, or any person, should hold those views is understandable. However, by publicly expressing them, and at the same time mounting an argument that the criminal justice system was both weighted inappropriately in favour of accused persons and imposed unacceptable burdens on complainants, Ms Cunneen discarded the prosecutor's obligation of detachment. 93 In the course of argument in this Court the Crown submitted that it was imperative that Ms Cunneen prosecute the applicant's retrial. The complainant was said to be "still psychologically vulnerable and thus still needs to maintain the continuity of the prosecutor at the trial." Later it was submitted that the complainant's "well being might be dependent on the confidence she has in the particular Crown Prosecutor." 94 There are various mechanisms by which the community seeks to ameliorate the harm occasioned to victims of crime and restore their health if it has been damaged. These include the Witness Assistance Service in the Office of the Director. The need for those mechanisms cannot be underestimated or their contribution to the lives of victims undervalued. However, it is not for the Crown Prosecutor to take a public role in supporting the complainant as against the accused at a criminal trial. Where this occurs any reasonable person would seriously doubt whether the process is fair. 95 This case cannot be determined by consideration of the trial judge's ability to control the actions of the Crown Prosecutor in court. It requires consideration of whether a reasonably informed fair minded person would conclude that, if prosecuted by Ms Cunneen, the trial of the applicant would be fair. In our opinion, because of her public statements that person would inevitably conclude that she may not discharge her obligations with appropriate fairness and detachment. Accordingly, in the unusual circumstances of this case if Ms Cunneen were to prosecute the applicant's trial, justice would not be seen to be done. 96 It is not without significance that if Ms Cunneen does not prosecute the applicant's trial the Director will be able to appoint another prosecutor from any number of experienced and competent prosecutors. The evidence before this Court indicates that the complainant will not give oral testimony. The transcript of her evidence at the previous trial will be tendered. If we had any doubt whether the present circumstances justified the intervention of this Court these further matters would lead us to resolve them in favour of intervention.

Relief 97 The Court of Criminal Appeal exercises an appellate jurisdiction with respect to any interlocutory judgment or order (s 5F(3)). An order with respect to a stay of proceedings in a criminal trial is such an order. Whether the District Court has power to restrain a prosecutor from appearing at a trial and, if so, whether the exercise or failure to exercise that power is reviewable by the Court of Criminal Appeal raises questions of some difficulty which need not be determined. An order staying the trial, unless prosecuted by a different prosecutor, is all that is necessary in the present case. 98 Although the nature of any relief available from the Court of Criminal Appeal exercising jurisdiction pursuant to s 5F may be unclear the jurisdiction of the Supreme Court to control the process of any trial to ensure that it is fair is undoubted. We have previously discussed the relevant authorities. 99 If it were necessary we are of the opinion that, exercising the powers of the Court of Appeal, this Court could restrain a crown prosecutor from prosecuting a particular trial. Before that could be considered the prosecutor should be joined as a party to the proceedings. 100 However, the concern of this Court is confined to ensuring that the trial of the applicant is fair and will be seen to be fair. That object can be achieved by a temporary stay of the trial.

1. Leave to appeal granted and the appeal upheld. 2. Order that the trial of the applicant be stayed until a Crown Prosecutor other than Ms Cunneen is appointed to prosecute the trial. **********

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