R v Macdonald; R v Maitland

Decision

1. The principles to be applied on a separate trial application under s.21 Criminal Procedure Act 1986 are well settled. There are strong reasons of principle and public policy why persons charged with committing an offence jointly should be tried together: Webb and Hay v The Queen [1994] HCA 30; 181 CLR 41 at 88-89. These public interest concerns include conserving costs, avoiding inconvenience to witnesses and the desirability of common enterprises being jointly tried so as to avoid inconsistent verdicts: Symss v R [2003] NSWCCA 77 at [68]. The third concern is particularly important where one accused may try to cast blame on the other accused: Webb and Hay v The Queen at 88-89.
2. Mr Maitland bears the onus of establishing the reasons for the making of an order granting a separate trial: R v Bikic [2000] NSWCCA 106; 112 A Crim R 300 at 305 [21]. To succeed, the applicant for a separate trial must demonstrate that there is a real risk that a positive injustice would be caused to him as a consequence of a joint trial: R v CE [2005] NSWCCA 326 at [4].
3. In R v CE, Grove J (Hall J and Smart AJ agreeing) continued at [5], citing the well-known statement of Hunt J in R v Middis (unreported, 27 March 1991, BC9102181): "It is inevitable that an application must be considered prospectively. In R v Middis NSWSC, unreported 27 March 1991, Hunt J observed: 'I do not believe that the Court of Criminal Appeal in Oliver intended an applicant for a separate trial to demonstrate that positive injustice would more likely than not be caused by a joint trial (as it was suggested in argument); nor do I accept that a mere possibility of prejudice is sufficient (as it was also suggested in argument). In my view, what the Court of Criminal Appeal was saying was that as some prejudice to one or other accused is inevitable in any joint trial, it must be shown by an applicant for a separate trial that the particular prejudice upon which reliance is placed by him would - if it arises - result in positive injustice to him in a joint trial'."
4. The single basis advanced in support of this separate trial application is the suggested prejudice that may flow, in a derivative fashion, to Mr Maitland as a result of adverse media publicity concerning Mr Macdonald some years ago.
5. There is no closed category of circumstances which may give rise to an order for separate trials. Exercise of the relevant discretion may be considered, in an appropriate case, where the basis of the application is adverse media publicity concerning a co-accused. However, what is required is an assessment, in the particular case, of the nature and strength of the evidence of publicity, and its proximity to the trial.
6. Here, the headlines of the articles in question suggest the flavor of the articles themselves: 1. an article on 15 July 2009 in "The Sydney Morning Herald" under the heading "Minister Defends $150,000.00 on wining and dining" (Annexure C, Whyburn affidavit); 2. an article on 17 July 2009 in "The Sydney Morning Herald" under the heading "The extraordinary reach of Sir Lunchalot" (Annexure D, Whyburn affidavit); 3. an article on 5 June 2010 in the "The Sydney Morning Herald" under the heading "Macdonald sacked for expenses rort" (Annexure E, Whyburn affidavit); 4. an article on 10 June 2010 in the "The Sydney Morning Herald" under the heading "Corruption watchdog to investigate Macdonald's expenses" (Annexure F, Whyburn affidavit); 5. an article on 24 November 2011 in the "The Sydney Morning Herald" under the heading "Tiffanie and the minister: Macdonald accepted sexual services arranged by Medich, inquiry hears" (Annexure G, Whyburn affidavit); 6. an article on 25 November 2011 in the "The Australian" under the heading "Ian Macdonald was offered pick of prostitutes; ICAC told" (Annexure H, Whyburn affidavit); 7. an article dated 25 November 2011 in the "The Daily Telegraph" under the heading "Prostitute Tiffanie tells ICAC that former minister Ian Macdonald kissed her roughly" (Annexure I, Whyburn affidavit); 8. an article dated 29 November 2011 in the "The Sydney Morning Herald" under the heading "Driver says he organised prostitute for MP" (Annexure J, Whyburn affidavit); 9. an article dated 29 November 2011 in the "The Australian" under the heading "Ian Macdonald seen as a 'soft point' to business" (Annexure K, Whyburn affidavit); 10. an article on 30 November 2011 in the "The Daily Telegraph" under the heading "Boxer Lucky Gattellari lined up prostitutes for minister Ian Macdonald, ICAC inquiry hears" (Annexure L, Whyburn affidavit); 11. an article dated 2 December 2011 in the "The Sydney Morning Herald" under the heading "I couldn't see properly: Macdonald's two-bot night with Tiffanie" (Annexure M, Whyburn affidavit); 12. an article dated 2 December 2011 in the "The Daily Telegraph" under the heading "Plonk, prostitutes, a paranoid pollie: former NSW Minister Ian Macdonald appears before the ICAC inquiry" (Annexure N, Whyburn affidavit); 13. an article on 7 February 2013 in the "The Australian" under the heading "Ian Macdonald 'offered $4m' in mining deal" (Annexure O, Whyburn affidavit); 14. an article on 15 March 2013 in the "The Sydney Morning Herald" under the heading "In his inner sanctum, where the state was run" (Annexure P, Whyburn affidavit); 15. an article dated 18 May 2013 in the "The Sydney Morning Herald" under the heading "Labor's nightmare without end" (Annexure Q, Whyburn affidavit); 16. an article dated 31 July 2013 in the "The Sydney Morning Herald" under the heading "Eddie Obeid, Ian Macdonald, Moses Obeid engaged in corrupt practices: ICAC" (Annexure R, Whyburn affidavit); 17. an article dated 1 August 2013 in the "The Sydney Morning Herald" under the heading "Sir Lunchalot was always hungry" (Annexure S, Whyburn affidavit); and 18. an article on 12 November 2013 in the "The Sydney Morning Herald" under the heading "Ian Macdonald asked about water licences before Obeid bought land" (Annexure T, Whyburn affidavit).
7. The date range of these 18 articles is from 15 July 2009 to 12 November 2013, with the majority (13) published between 2011 and 2013. The articles relate to Mr Macdonald's alleged corrupt conduct and matters which were the subject of investigation by the ICAC.
8. From time to time, this Court considers the suggested impact of media publicity in the context of an application for trial by Judge alone under s.132 Criminal Procedure Act 1986. Statements made in judgments of that type concerning the robust nature of jurors and the jury system have application, as well, in the context of this application.
9. In R v Jamal [2008] NSWCCA 177; 72 NSWLR 258, Spigelman CJ emphasised at 261 [17] that the Courts "have decisively rejected the previous tendency to regard jurors as exceptionally fragile and prone to prejudice". The Chief Justice observed, as well, in R v Jamal at 262 [21] that the "perspective that jurors properly perform their task, are true to their oaths and comply with a trial judge's directions has repeatedly been applied in appellate courts over recent years".
10. It has been emphasised that the risk of jurors conducting internet searches for previously published material is mitigated by s.68C of the Jury Act 1977 and standard judicial directions: R v McNeil [2015] NSWSC 357 at [67]-[69], [79].
11. The Courts have recognised, as well, that the lapse of time between media publicity and the trial itself is a significant factor: Montgomery v HM Advocate [2003] 1 AC 641 at 673; R v McNeil at [66], [75].
12. There was a period of fairly regular adverse media publicity with respect to Mr Macdonald, in particular, in the period 2011 to 2013. It may be noted that Mr Maitland is mentioned once only (and in passing) in one article (Annexure Q to the Whyburn affidavit, referred to above at 16).
13. Further, and importantly, the last article complained of appeared on 12 November 2013, some two years and four months before the scheduled trial date. The passage of time is a significant factor in assessing the possible impact of adverse media publicity.
14. It should be noted, as the Crown submits, that there has been no publicity in more recent times of the type relied upon in support of this application.
15. Insofar as counsel for Mr Maitland submitted that there was a prospect of publicity emerging between now and the time scheduled for the trial, it is appropriate to have regard to the different context existing now as compared with that up to 2013, when Mr Macdonald was before the ICAC. The media will be well aware of the law of contempt of court, and its capacity to apply with respect to adverse publicity concerning accused persons in the period preceding and during a criminal trial: R v McNeil at [73]. Considerations of this type did not apply at the time of the investigatory processes of the ICAC with respect to Mr Macdonald. I note the Crown submission (which is correct) that should publicity arise concerning the forthcoming trial, there are other mechanisms available to the Court.
16. With respect to the risk of jurors accessing adverse material on the internet, the provisions contained in s.68C Jury Act 1977 and expected judicial directions from the trial Judge are fundamentally important aspects to be taken into account on this application.
17. Mr Maitland has not demonstrated that there is a real (as opposed to a theoretical) possibility that the past media reporting concerning Mr Macdonald will cause prejudice at a joint trial of the kind that would result in positive injustice to him.

Conclusion

1. Mr Maitland has not made good his application for a separate trial. I make the following orders: 1. I decline the application by John William Maitland to be tried separately from Ian Michael Macdonald; 2. Mr Maitland's Notice of Motion filed 7 September 2015 is dismissed.

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