R v Jamal [2008] NSWCCA 177 | Case summary

Tuesday 22 July 2008 Regina v Saleh Jamal Judgment 1 SPIGELMAN CJ: This is a Crown appeal pursuant to s 5F of the Criminal Appeal Act 1912 from an interlocutory judgment of Sweeney DCJ. Her Honour made an order staying criminal proceedings against the respondent "until the Crown consents to Mr Jamal's trial proceeding by judge alone". 2 The respondent is charged with maliciously discharging a loaded firearm with intent to inflict grievous bodily harm, contrary to s 33A(1) of the Crimes Act 1900. There is an alternative count of firing a firearm with reckless disregard for the safety of another person contrary to s 93GA(1) of the Crimes Act. 3 The particular incident involved a group of persons undertaking a scheme by which some of them fired a number of bullets at Lakemba Police Station which was then occupied by police officers. The Crown case is that the respondent participated in a joint criminal enterprise by driving a vehicle in the course of the getaway of the persons who did the shooting. 4 The matter was listed for trial on 6 February 2008. Her Honour made the order of a stay on 8 February 2008. 5 Her Honour had before her details of publicity about the respondent including, but not limited to, the shooting at Lakemba Police Station. Various allegations were made in the media about the respondent including allegations of being a terrorist, the latest of which was published in December 2007. Many of the media reports are available on websites capable of being accessed and which would reveal many past publications upon the respondent's name being searched. 6 Section 132 of the Criminal Procedure Act 1986 provides for a trial by judge alone in criminal proceedings. However, subs (3) of that section requires that: "An election may be made only with the consent of the Director of Public Prosecutions". 7 It has been held that a refusal to grant such consent is not subject to judicial review. (See M v Director of Public Prosecutions (Supreme Court of New South Wales, Dunford J, 6 March 1996, unreported).) 8 It appears that her Honour was referred to only two relevant cases, The Queen v Glennon (1992) 173 CLR 592 and R v K [2003] NSWCCA 403; (2003) 59 NSWLR 431. They are the only such authorities referred to in her judgment. 9 During the course of judgment her Honour said: "… I am of the view that the sustained, repeated and accumulated nature of the reporting, the subject matter of the reports and its terms, often intemperate, sometimes quite florid, over the time period from May 2004 to December 2007, with material still now available on the internet, means that what is being considered here is of more significance than the material considered in Glennon or in Re K [sic]. I must proceed on the basis that a jury would be directed to not make any inquiries about the accused on the internet and to ignore any prior media publicity. Juries are presumed to follow directions given to them and I have to proceed on that basis. However, I am concerned that because of the sheer volume of the material, its availability on the internet, and the nature and terms of some of it, that there is a risk of the material becoming known to jurors and having an impact which is prejudicial to the accused having a fair trial. Due to, at least in part, media demonisation, the allegation of 'terrorism' carries with it in the community emotive and prejudicial weight. I appreciate that the High Court in Glennon said I must not conjecture or speculate that that would occur, but I do have a concern that there is that real risk. Are there measures available to ameliorate the risk? That is an issue I must consider. The lapse of time to date has not been sufficient since the last reporting in December 2007. Nor am I of the view that a further short adjournment would change that position." 10 Her Honour then said: "I do not think a permanent stay is required, based on the test in Jago , because in my view there is a course available which would meet the risk of potential prejudicial effect on jurors by the material exhibited on this application. Mr Jamal sought a judge alone trial but the Crown did not consent. The Crown's consent is required under the provisions of the Criminal Procedure Act which provide for a judge alone trial. Having heard submissions on this application and indicated by preliminary views along the lines of the judgment I have just given, I gave the Crown an opportunity to further consider its position on that issue. Mr Crown has informed me this morning that the Director will not consent to a judge alone trial. Therefore it is my view, adopting the tests in the cases to which I have been referred, that at present Mr Jamal cannot receive a fair jury trial due to the prejudicial material put before me on this application, and therefore the only course available to me is to stay the trial temporarily until the Crown consents to a judge alone trial. As I understand the Criminal Procedure Act , I cannot force the Crown or order the Crown to consent to a judge alone trial, but it seems to me that the interests of justice and the interests of a fair trial require that I make that order. Therefore, I make the order that the proceedings are stayed until the Crown consents to Mr Jamal's trial proceeding by judge alone." 11 Several aspects of her Honour's reasoning have been highlighted in the Crown's submissions in this Court. In particular, it was submitted that her Honour's reference to "the only course available to me is to stay the trial temporarily until the Crown consents" was an error of principle because her Honour had an alternative available, namely an adjournment. This Crown submission is only partially accurate. Her Honour stated earlier in her judgment that she did not believe that "a further short adjournment would change" the position with respect to a fair trial. 12 It is not clear what her Honour had in mind by a "short adjournment". However, it does appear that her Honour did not have regard to the possibility of a longer adjournment. In this regard, the Crown submission, that her Honour erred by characterising her conditional stay as "the only course available", should be upheld. As the Crown submitted, she could have ordered a stay for a "limited period", being a period that was not "short". 13 There were good reasons for considering a longer adjournment in the present case. 14 First, the respondent had been convicted of an unrelated shooting and had been sentenced to nine years imprisonment with a non-parole period of five years and six months commencing on 17 August 2007. The recent publicity was directed to this trial or occurred in the context of this trial. A stay for a lengthy period will often raise questions about unfairness to the accused particularly, when he could not be released on bail. This is not such a case. The respondent will remain in gaol for a lengthy period in any event. 15 Secondly, the attack on Lakemba Police Station occurred on 1 November 1998. The case has been delayed for a number of reasons including a trial being aborted because of the respondent's ill health and, then, by the respondent absconding overseas. He was not extradited until September 2006. The adverse effects of lengthy delay on a criminal trial have already occurred. A further delay would not significantly add to those effects. 16 This Court has had occasion to assess adverse pre-trial publicity in a number of cases, being publicity of a character, of a duration and of an intensity which was at least equal, in many cases, to the publicity in the present case. Applications for a permanent stay have failed in the most sensational of cases: Anita Cobby, Ivan Milat, Phillip Bell, the Childers Backpacker Hostel fire, Lucy Dudko, William D'Arcy, Bruce Burrell. (See Murphy v The Queen (1989) 167 CLR 94; R v Milat (Court of Criminal Appeal, 26 February 1998, unreported); R v Bell (Court of Criminal Appeal, 8 October 1998, unreported); Long v R [2002] QSC 54; (2002) 128 A Crim R 11; affirmed on appeal [2003] QCA 77; (2003) 138 A Crim R 103; R v Dudko [2002] NSWCCA 336; (2002) 132 A Crim R 371; R v D'Arcy [2003] QCA 124; (2003) 140 A Crim R 303; R v Burrell [2004] NSWCCA 185.) 17 I have had occasion to summarise the relevant case law in the following manner, applicable to the present case, in John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344: "[103] There are now a significant number of cases in which the issue has arisen as to whether or not an accused was able to have a fair trial in the light of substantial media publicity, indeed publicity much more sensational and sustained than anything that occurred here. Those cases have decisively rejected the previous tendency to regard jurors as exceptionally fragile and prone to prejudice. Trial judges of considerable experience have asserted, again and again, that jurors approach their task in accordance with the oath they take, that they listen to the directions that they are given and implement them. In particular that they listen to the direction that they are to determine guilt only on the evidence before them." 18 There are now numerous judicial statements as to the validity of such an approach. 19 Going back, for example, as Gleeson CJ said in R v VPH (Court of Criminal Appeal, 4 March 1994, unreported) at 7: "The jury will be given appropriate directions to confine their attention to the evidence that is put before them. Our entire system of the administration of criminal justice depends upon the assumption that jurors understand and comply with directions of that character." 20 Furthermore, as McHugh JA said in Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 at 425: "[31] … Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials." 21 The perspective that jurors properly perform their task, are true to their oaths and comply with a trial judge's directions has repeatedly been applied in appellate courts over recent years. (See R v Milat; R v Bell; Long v R; R v Richards [1999] NSWCCA 114; (1999) 107 A Crim R 318; R v Dudko; R v D'Arcy; R v Burrell supra.) 22 The issue in the present case is slightly different in the sense that what is sought is not a permanent stay but an order to stay until such time as the Director grants his consent. 23 In my opinion, an order interfering with a statutory discretion of this character is not an appropriate exercise of a court's jurisdiction to prevent an abuse of its own processes. (See Jago v District Court of New South Wales (1989) 168 CLR 23.) The Parliament has deliberately excluded the court from the determination of the mode of trial. The court should not circumvent this legislative choice, particularly as that choice reflects the long established separation of powers with respect to the institution of criminal proceedings. 24 The central significance of the jury in the administration of criminal justice in Australia is such that the courts should be, on any view, exceptionally reluctant to insist that the system be bypassed, even when seeking to implement the principle of a fair trial. For serious crimes a fair trial in our system of criminal justice is a trial by jury, subject to statutory exception. The community has a right to participate in the administration of criminal justice, and public confidence in that system turns to a significant degree upon that participation. Furthermore, it must not be forgotten that a fair trial is not only a trial fair for the accused, it is also a trial fair to the community represented by the prosecution. 25 The determination of the mode of trial - often made in the decision to present an indictment or to proceed summarily - is an executive function. Indeed, if such a power were conferred on a court, in a Commonwealth constitutional context it could well give rise to a separation of powers issue. A question would arise as to the independence and impartiality of the judiciary. 26 As Gaudron and Gummow JJ said in such a context in Maxwell v The Queen (1996) 184 CLR 501 at 534 (citations omitted): "It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what." 27 Although this Court has not heard full argument on the matter, particularly with reference to the separation of powers in the State system, I am of the view that the reasoning of Gaudron and Gummow JJ is applicable to the mode of trial. What, one may ask, would happen if the present order were to stand but the Director refused to give his consent? The stay would remain in effect, but would an accused be entitled to be released on bail and, if so, when and what conditions? Such interaction between the judiciary and the executive, including on occasions leading to a standoff, may affect the integrity of the judicial process. 28 Mr P Byrne SC, who appeared for the respondent, accepted that this stay would operate subject to any subsequent application that it be lifted, assuming that the Director's consent was not forthcoming. In my opinion the court should not make an order which imposes a condition which the executive can ignore. 29 It may be that all her Honour had in mind in the order she actually made was to create a situation in which, if the Crown wished to proceed immediately or in the short term, it could only do so by judge alone. However, in the absence of any consent being forthcoming or indicated to her Honour at that stage, an order in the form it was made ought not have been made. What ought to have been done, if the Director maintained his position that no consent would be forthcoming, is that her Honour should have exercised her power, on the factual findings she made, to stay the proceedings for a defined period. In the circumstances to which I have referred that period did not have to be a short period. 30 Looking at the matter which her Honour took into account, clearly access to information on the internet is of a more permanent character and remains accessible, so that a long period of stay does not necessarily avert the possibility of juror access to such information. However, since the decision of R v K, to which her Honour referred, the practice of directing juries not to access the internet has become standard and, indeed, it has been reinforced by legislation making it a criminal offence for a juror to do so. Juries are regularly instructed that this is the case. Indeed, Sweeney DCJ herself recognised that the possibility of internet access was not determinative in the present case. 31 If a power to make such a discretionary order existed contrary to the above reasoning, it would be a judgment of a character with which, as Mr Byrne properly submitted, the Court is reluctant to intervene. However, even on this basis, in my opinion, her Honour made an error by failing to consider the possibility of a lengthier adjournment. The fact that the respondent will remain in prison for a lengthy period meant that her Honour should not have confined her analysis to merely a "short adjournment", as the only alternative to the order she made. A lengthier adjournment should have received consideration and, in my opinion, should have been given determinative weight. 32 Even if this option were open, accordingly, in my opinion, it would not have been an appropriate exercise of the discretion to make the particular order in a case such as the present, where the accused will be in gaol for a lengthy period and there has already been a long period of delay, for reasons to which I have referred. Such further delay as is appropriate to reduce the effect of recent publicity can readily be accommodated on the facts of the present case. 33 Accordingly, in my opinion, the appeal should be allowed and the order made by her Honour should be set aside. 34 SIMPSON J: I agree. 35 PRICE J: I agree with the Chief Justice. 36 SPIGELMAN CJ: The orders are as I have indicated. **********

R v Jamal

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