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[2009] VSC 342
Supreme Court of Victoria
2009-08-14
KAYE J
Original judgment source is linked above.
CRIMINAL LAW - Murder trial - Application by accused for permanent stay on basis of pre-trial publicity.
1 The accused, Antonios Mokbel, is charged on presentment with the murder of Lewis Moran at Brunswick in the evening of 31 March 2004. The trial has been listed to start before me shortly. Application has been made on behalf of the accused for a permanent stay of the proceeding against him. That application has been made on the basis that substantial adverse publicity about the accused, over the last decade, has been such as to deprive the accused of a fair trial of the charge against him.
2 Before I outline the nature of the publicity relied on by the accused, it is relevant first to set out, briefly, the nature of the Crown case against the accused, and thus to identify the principal issues in it.
3 In essence, the prosecution case is that the accused, together with one Carl Williams, counselled and procured AB to murder Lewis Moran. The murder took place in the evening of Wednesday 31 March 2004 at the Brunswick Club in Sydney Road, Brunswick. The Crown alleges that on that evening, AB, a lifelong criminal, his brother YZ and Evangelos Goussis, drove to Sydney Road. While AB remained next to the getaway car, Goussis and YZ entered the club. YZ stood guard at the door, while, it is alleged, Goussis approached Lewis Moran, who was then drinking at the club with a friend, Herbert Wrout. Goussis chased Moran, who sought to flee from the scene, and fatally shot him at close range. In the meantime, YZ shot, and seriously wounded, Wrout. The three men then made their escape. Subsequently, AB was charged with the murder of Lewis Moran, and also with the murder of another underworld identity, Lewis Caine. AB pleaded guilty to the murder of Lewis Moran. He will be the key Crown witness in the forthcoming trial.
4 In its case against the accused, the prosecution intends to lead evidence as to the background to the shooting of Lewis Moran. In particular, evidence will be called that, in the years leading up to 2004, there had been a spate of violent incidents between members of two rival groups of individuals in Melbourne. On the one hand, there was a group affiliated with Carl Williams. On the other, was a group known as the "Carlton Crew", which included members of the Moran family, including Lewis Moran. A number of murders on both sides had occurred in the years leading up to 2004. Jason Moran and Mark Moran, the son and stepson respectively of Lewis Moran, had been murdered during that time.
5 The prosecution intends to lead evidence that, for some years before 2004, Williams harboured a hatred of members of the Moran family. The Crown will seek to establish that the accused, Mokbel, was a very close friend and associate of Williams, and that in the early months of 2004 they were in regular contact with each other. AB will give evidence that, in the period leading up to the murder, he had been living in Geelong, and that Goussis was living in his house. In early 2004, he was contacted by Williams and asked to meet with him. AB will say that in a meeting at the Grove Café with others, Williams took AB aside, and offered to pay AB to kill Moran on behalf of the accused and himself. Subsequently, AB accepted that proposal in a meeting which he had with Williams at a hotel in Brunswick. AB will give evidence that he arranged with YZ and Goussis to commit the crime together. Subsequently, a few days before the killing of Lewis Moran, AB and Goussis attended in Melbourne, and went to the Grove Café, where they met with the accused. AB will state that the accused told Goussis and himself that the killing of Moran was to proceed, and that payment for it would be guaranteed by him. At that meeting, or possibly in an earlier conversation, the accused told AB that he had previously been set up, and bashed, by members of the Carlton Crew, and he was unhappy about that occurrence.
6 AB will give evidence that within a few days after the murder of Lewis Moran, he received a telephone call from Williams, offering his congratulations. In later calls between AB and both Williams and the accused, arrangements were made for AB and Goussis to come to Melbourne to receive their payment. AB will give evidence that Goussis and he met the accused in the car park of Bridey O'Reilly's Hotel in Brunswick. The Crown case is that the likely date of that meeting was Saturday 3 April 2004. AB will state that the accused met him, and handed him a large envelope containing cash. Subsequently, after AB and Goussis left the hotel and returned to Geelong, they found that they had been paid $140,000, which was $10,000 short of the "contract fee".
7 It is evident that the Crown case would depend almost entirely on the credibility of AB. The Crown will tender some telephone records concerning the making and location of telephone calls on 2 April and 3 April 2004, and will submit that those calls are capable of corroborating the evidence of AB. On the other hand, it will be submitted on behalf of the accused that those records are "intractably neutral", and are not capable of corroborating the evidence of AB. For present purposes, it is sufficient to note, as I stated, that the success of the Crown case will depend on the jury being persuaded, beyond reasonable doubt, as to the truth of the allegations made by AB against the accused.
8 It is necessary to set out some matters of background relating to the accused, particularly as they relate to some of the matters, raised in the publicity, which are the basis of this application.
9 In August 2001, the plaintiff was arrested by the Victorian police, and charged with one count of trafficking in a drug of dependence in a quantity not less than a commercial quantity, and two further counts of trafficking in a drug of dependence. On 15 February 2005, after a committal proceeding in the Melbourne Magistrates' Court, the accused was committed for trial in the Supreme Court on each of those three charges, and was released on bail.
10 In October 2005, the accused was arrested by the Australian Federal Police, and charged with two counts of urging the commission of an offence against s 233E(1) of the Customs Act 1901 by another person, namely, importing a commercial quantity of the drug MDMA. In November 2005, he was granted bail on those charges. In December 2005, the committal proceeding in respect of those charges was adjourned to July 2006.
11 Subsequently, in February and March 2006, the plaintiff was tried in the Supreme Court on one count of importation into Australia of a prohibited import, namely cocaine, in November 2000, contrary to s 233B(1)(d) of the Customs Act 2001. After the conclusion of evidence, and during the Crown prosecutor's address, the accused absconded while still on bail. The trial judge decided to continue the trial. After hearing the completion of the prosecutor's address, the jury convicted the accused. On 31 March 2006, the trial judge sentenced the accused to a term of 12 years' imprisonment, and fixed a minimum non-parole period of nine years' imprisonment.[1]
12 In the meantime, on 29 March 2006, the Victorian Director of Public Prosecutions filed in the Supreme Court a presentment in respect of the three charges of trafficking in a drug of dependence, on which the accused had been committed for trial in February 2005. Gillard J ordered that the trial of that presentment be adjourned to be a date to be fixed, and that a warrant be issued for the apprehension of the accused. In July 2006, the Melbourne Magistrates' Court adjourned the committal proceedings against the accused, in respect of the two Commonwealth charges against him, sine die.
13 Between February and June 2007, the Victorian police filed in the Magistrates' Court a further 15 charges against the accused. Those charges included two charges of murder, and five charges of trafficking in a large commercial quantity of a drug of dependence. The two murder charges were in respect of the killing of Lewis Moran, and in respect of the death of Michael Marshall in 2003.
14 The accused was arrested in Greece on 5 June 2007. The Commonwealth Attorney-General made an application to the Hellenic Republic seeking the extradition of the accused to Australia to answer the outstanding charges against him. Those proceedings were conducted before the Council of Appeals Court of Athens on 17 and 24 July 2007. On 26 July 2007, that Court ordered that the accused be extradited to Australia. The accused appealed from that order to the Supreme Court of Greece. On 18 March 2008, that Court ordered that the plaintiff be extradited to Australia on all but two of the outstanding charges against him. On 16 May 2008, the accused was surrendered by Greece into the custody of the Australian Federal Police to be escorted to Australia. The accused arrived in Melbourne on 17 May 2008.
15 The application to stay the proceeding is based on three affidavits sworn by the accused's solicitor, Grace Morgan, on 1 April, 17 July and 6 August 2009 respectively, and on an affidavit sworn by another solicitor, Stephen Andrianakis, on 17 July 2009. Some further materials were tendered in the course of submissions. The principal affidavit is Ms Morgan's second affidavit. It is a very long and detailed affidavit, to which there are exhibited a large number of publications and articles, comprising ten lever-arch folders. In her second affidavit, Ms Morgan has helpfully extracted the references to the accused, which it is submitted are prejudicial to him. She has divided those references into fourteen sections, each section dealing with a different category of reference which it is submitted is prejudicial to the accused. In summarising the material, I shall utilise the same categories as Ms Morgan. As I stated, the material in support of the application is voluminous, and I shall only briefly summarise it.
16 The first category of reference relied on by the accused (in paragraph 2 of Ms Morgan's second affidavit) concerns references in the media publication to the accused's previous convictions. Those publications occurred on television stations 2, 7, 9 and 10, on ABC Local Radio, and in each of the three daily newspapers, the Herald Sun, the Age and the Australian. The majority of the references to the accused's previous convictions were contained in the newspaper articles, rather than in the live media publications. The references to the accused's prior convictions occurred in publications, the earliest of which was 10 March 2007, and the latest of which was on 2 July 2008.
17 The earlier references to the accused's convictions related to the fact that the then Federal Shadow Attorney-General had provided a character reference in relation to the accused, notwithstanding that he had long standing previous convictions. They included previous convictions for assault and threatening to kill in 1986, a previous conviction for possessing a pistol in 1989, and a conviction for attempting to bribe a County Court judge in 1992. In October 2007, the Australian newspaper also published an article concerning a reference given by a senior loans officer of the National Australia Bank in respect of the accused. That article referred (inter alia) to the accused's previous convictions for obtaining property by deception and handling and receiving stolen goods, and for attempting to bribe a County Court judge.
18 Apart from those references, some other publications refer to the fact that the accused had been convicted of smuggling a large quantity of cocaine into Victoria from Mexico in 2006. The publications also variously described the accused as a "convicted drug trafficker", a "convicted drugs boss", a "convicted drug lord", a "convicted drug smuggler", a "convicted drug baron", and a "convicted cocaine smuggler". They also referred to the fact that the accused absconded during his trial, and also described him as a "drug fugitive" or "fugitive drug dealer".
19 In total, Ms Morgan has referred to some 50 different publications which, in one form or another, referred to the previous convictions of the accused. A substantial number of the articles concerned the capture of the accused in Greece, the application by the Australian Government for his extradition to Australia, and the accused's opposition to that application. A number of the other articles, although not directly reporting on the accused's capture and extradition, were clearly indirectly the result of it, because the public interest in the subject matter of the articles derived from the fact that they referred to the accused.
20 In paragraph 3 of her second affidavit, Ms Morgan refers to 14 publications which relate to offences for which the accused has not been charged, but which contain a reference to the accused. All but one of the publications were articles in the Age, the Herald Sun or the Australian newspaper. Most of them were in the Age newspaper. The earliest article was on 1 July 2004. Otherwise, the other 13 articles were published between 1 May 2007 and 25 September 2008. In particular, three articles were published between 1 May and 10 October 2007, and 10 articles were published between 9 May and 25 September 2008.
21 The 2004 article alleged that the accused, who was then facing State and Federal charges over an alleged $2 billion drug empire, was arrested and locked up for being drunk in a public place.
22 An article in the Age dated 1 May 2007 reported on the plea made on behalf of Carl Williams in respect of three murders to which he had pleaded guilty. One of those murders was the killing of Lewis Moran. The article reported that Williams gave evidence in the course of his plea, in which he denied that the accused was involved in that killing. It further reported that police allege that Williams and "the fugitive drug baron" (ie the accused) both offered others $150,00 to have Moran killed.
23 The next article was published in the Herald Sun on 14 June 2007 under the heading "Mokbel faces new kill charge". The article reported that the accused would face two murder charges in Melbourne, if he failed to avoid extradition from Greece, where he was then in custody. The article proceeded to quote from the then Victorian Police Chief Commissioner, Christine Nixon, who stated that the accused would "perhaps" be charged with two murders. It reported that Purana detectives had investigated the accused over the 2003 murders of Michael Marshall and Nik Radev. I interpolate that the accused was charged with the murder of Michael Marshall, and that in April of this year, the Crown entered a nolle prosequi in respect of that charge. The article then proceeded to report that after the accused had absconded from bail and fled Australia, he was charged in his absence with the murder of Lewis Moran, and that the accused had publicly denied any involvement in killing Moran.
24 Ms Morgan's affidavit then refers to a broadcast on the Ten Network, on 10 October 2007, referring to an escape plot in respect of the accused, who was then in custody in Greece, and reporting that it was believed that the accused had been moved to a more secure prison and was now in solitary confinement.
25 The next nine articles, dated from May 2008 to September 2008, concern the murders of Christine and Terence Hodson in May 2004. Some of them (Exhibits GM 3.4, 3.5, 3.8) alleged links between the accused and a policeman, Detective Paul Dale, against whom Hodson was to give evidence. Some of the articles (Exhibits GM 3.1, 3.2, 3.3, 3.5, 3.6, 3.7, 3.8, 3.9) also alleged links between the accused and one Rodney Charles Collins, who had been charged with the double murder of Raymond and Dorothy Abbey in 1987, and who was also suspected of the murder of Terence and Christine Hodson. Two of the articles, each published in the Age on 15 May 2008 (Exhibits GM 3.8, 3.9), alleged that the accused had advance knowledge of plans to kill Mr and Mrs Hodson. One article, published by the Australian on 17 June 2008 (Exhibit GM 3.3), also alleged that Collins was suspected of involvement in three other murders. That article stated that Collins had a relationship with the woman who was the mother of the accused's girlfriend.
Comment or actions taken by significant public figures
26 In paragraph 4 of her second affidavit, Ms Morgan exhibits 68 publications under the heading "Prejudicial comment or actions taken by significant public figures". She also refers to a further article (published in the Age newspaper on 7 June 2007) in her third affidavit. All of those publications occurred in the print and live media between June 2004 and 17 June 2008.
27 The first group of publications occurred between June 2004 and May 2005, reporting on the banning of the accused, and other "underworld identities" from Crown Casino. In October 2006, there appeared two newspaper articles suggesting links between corrupt policemen and the underworld, including the accused. In November 2006, there were two newspaper articles reporting on the seizure of assets of the accused under the Proceeds of Crime Legislation.
28 In March 2007, there were some 24 publications (Exhibits GM 4.31 to GM 4.54) reporting on a character reference which had been given by the Opposition Shadow Attorney-General, Mr Kelvin Thompson, for the accused. Each of those publications were in the print media. The articles primarily focussed on the conduct of Mr Thompson, and on the political difficulties caused to him arising from the provision of the reference. In most of them, the main criticism of Mr Thompson arose from the accused's later status as a fugitive. In April 2007, there were three publications, relating to the offer by the State Government of a reward for information in respect of a murder, in which it was suspected that the accused was implicated.
29 There then occurred a spate of articles following the arrest of the accused in Greece in early June 2007. The articles, published at about that time, reported on the recapture of the accused, and contained other allegations. Three of the articles alleged that he had been implicated in a large syndicate involved in the production and distribution of drugs. Another article reported that the Federal Commissioner for Taxation had served an assessment of $4,000,000 for tax outstanding by the accused, arising from the manufacture and traffick by him of illegal drugs, before the accused fled Australia.
30 On 14 June 2007, there appeared articles, in both the Age newspaper and the Australian newspaper, stating or suggesting that it was likely that the accused would also be charged with the murder of Michael Marshall which took place in October 2003. Between that date and March 2008, there were a number of publications relating to the extradition proceedings in respect of the accused. In May 2008, there were some seven publications, exhibited in Ms Morgan's affidavit, which reported on the return of the accused to Victoria on 17 May 2008. In June 2008, there were two publications alleging links between the accused and the racing industry. One of the publications (by the Age newspaper) alleged that the accused had laundered millions of dollars through the racing industry.
31 In paragraph 5 of her second affidavit, Ms Morgan exhibits 31 publications between 2002 and 18 May 2008, which it is submitted refer to an association between the accused and Carl Williams. Twelve of the publications occurred before 5 March 2005, fourteen between 1 March 2007 and 12 July 2007, and five in 2008.
32 On analysis most, but not all, of the publications referred to and suggested an association between Williams and the accused. Some of the articles suggested the implication of Williams and the accused in the murder of Michael Marshall. A number of other articles, particularly in 2007, referred to the allegation that the accused and Williams paid $150,000 for the murder of Lewis Moran. A number of those articles appeared at the time of the plea made on behalf of Carl Williams, and also reported Williams' denial that the accused was involved in Moran's murder.
33 In May 2004, there were a group of articles published concerning the banning of Williams and the accused from Crown Casino, and an application to ban them from other venues. In April 2004, there was a report on the funeral of slain underworld hitman Andrew Veniamin. Those articles suggested a relationship between the accused and Williams.
34 One of the articles, referred to in this section of Ms Morgan's affidavit, was an article in the Age newspaper dated 1 March 2007 entitled "Williams confesses". That article (inter alia) referred to the murder of Michael Marshall, and the allegation that the accused had paid for that murder to take place. It also alleged that Williams and the accused had agreed to pay $150,000 to arrange the murder of Lewis Moran. During the course of interlocutory proceedings before me in this matter, it emerged that a copy of that article was on display, outside the Banco Court, in the Supreme Court, as part of a presentation entitled "Ned Kelly to Underbelly". The existence of that display was brought to my attention shortly after the completion of a directions hearing in this matter on 25 June 2009. The display was quite inappropriate, and I immediately gave an instruction for it to be removed. Pursuant to that direction, the display was removed within ten minutes. At a subsequent directions hearing on 1 July, I informed counsel of what had occurred. The existence of that display is referred to in the affidavit of Ms Morgan.
35 Inquiries made by me reveal that the display was apparently first placed outside the Number 1 Court on 8 May 2009 for the purposes of "Law Week". However, it seems it remained at that location until I learnt of it, and directed its removal, on 25 June.
36 Paragraph 6 of Ms Morgan's second affidavit is entitled "References to the Mokbel Crime Family". It refers to 66 publications between August 2002 and 17 December 2008.
37 The large majority of the articles and publications in this section relate to proceedings against the accused's sister in law, Renate Mokbel, who stood $1,000,000 surety for the bail of the accused in respect of the charges for which he was on trial when he absconded. Most of those articles were published between 2006 and later 2007, in the period in which the accused was a fugitive. They related to the successful application by the Crown for Mrs Mokbel to pay the $1,000,000 surety, and to the jail sentence imposed on her for failing to do so. They also referred to criminal proceedings brought against Mrs Mokbel for conspiracy to pervert the course of justice and perjury, arising out of the affidavit sworn by her in support of her surety.
38 In addition, the publications in this section referred to various proceedings relating to drug charges against the accused's brother Horty Mokbel, and other proceedings against his other brother Milad Mokbel. In nearly all those publications, those two persons were referred to as the accused's "brother". In addition, there were some articles referring to another sister in law of the accused, Zaharoula Mokbel, and to charges brought against her for obtaining financial advantage by deception in connection with obtaining more than $2,000,000 of illegal loans.
39 In August and September 2006, there were a series of articles reporting that an uncle of Renate Mokbel had been handed cash and jewellery worth more than $1,000,000 by members of the accused's family, before the accused absconded on bail. The uncle was reported to have buried that "booty" in his back yard. It was stated that police had recovered the cash and jewellery which they had found buried in the back yard of the uncle's home in Parkdale.
40 Ms Morgan's affidavit also referred to a number of publications in 2003, concerning drug charges against the accused's other brother, Kabalan Mokbel. In November 2003, it was reported that those charges were withdrawn because of the involvement of investigating police in criminal corruption.
41 In paragraph 7 of her second affidavit, Ms Morgan refers to nine publications, between May 2004 and August 2008, which relate to the links between the accused man and the gambling industry. In fact, one of the nine articles did not refer to that subject matter, but to the jailing of an associate of the accused in Greece in respect of drug charges.
42 The publications in this section of Ms Morgan's affidavit referred to the accused's involvement in racing and gambling, to the fact that associates of his had been granted a licence to operate poker machines, and to the use of gambling venues and betting on the horse races in order to launder money. In addition, the articles alleged that the accused used other persons to gamble on his behalf, and that he also used a businessman and race horse owner to act as a "stooge" for his ownership of a race horse.
43 In paragraph 8 of her second affidavit, Ms Morgan exhibits 32 publications between June 2002 and 11 June 2008, which either alleged or suggested the involvement and connection of the accused with corrupt policemen.
44 One half of the publications in this section occurred in the period June 2002 to March 2004. The main thrust of those publications was that the implication of a number of members of the Drug Squad in corrupt activities had compromised the prosecution of drug charges against the accused. Some of the articles reported that one of the police officers, Detective Rosenes, had been involved in deals to purchase ecstasy, which was linked to the accused. Subsequently, in October 2006 there occurred some articles concerning the trial of Senior Sergeant Strawhorn of the Drug Squad, and which alleged that there had been some connection between Strawhorn and the accused. Between January 2007 and June 2008, there were a number of articles alleging a connection between the accused and corrupt police.
45 During that period, six of the publications (Exhibits GM 8.1, 8.4, 8.9, 8.10, 8.11, 8.12) referred to the link between former Detective Paul Dale and the accused, in the context of the murder of Terence Hodson and his wife in 2004. The most recent publication, on Radio ABC on 11 June 2008 (Exhibit GM 8.1), referred to the link between Dale and the accused in respect of the deaths of Hodson and his wife. It alleged that the accused knew in advance about plans to murder the Hodsons. It then stated that the police had arrested an associate of the accused, Rod Collins, who was charged with another double murder more than two decades ago. It stated that "as with the Hodsons, Ray and Dorothy Abbey were shot execution style in their home in July 1987". During the broadcast it was also stated that Collins was part of the accused's "wider family", as he was living with the mother of the accused's partner. Two of the publications (Exhibits GM 8.4, GM 8.9) comprised a television broadcast and a radio broadcast, in each of which a commentator speculated whether the accused might have knowledge which might assist the police to solve the murders of the Hodsons. One publication (Exhibit GM 8.10), an article in the Age newspaper of 24 March 2007, was a lengthy article focussing on Sergeant Paul Dale. In a short passage more than halfway through the article, brief reference was made to the fact that the accused had had access to stolen police files relating to the Hodsons. On the same day, the Age published another article (Exhibit GM 8.11) focussing on the alleged links of Dale to the murders of the Hodsons. In one line of that article it was said "investigators have examined Dale's links with Tony Mokbel". The other article (Exhibit GM 8.12) was an article in the Australian published on 13 January 2007, alleging that the accused had held internal police documents identifying informants almost two years before one of them was executed in a double murder "linked to corrupt officers".
References to Mokbel as drug lord, drug baron, drug boss etc
46 In paragraph 9 of her second affidavit, Ms Morgan sets out 227 publications between September 2001 and 15 August 2008, in which the accused was described in terms denoting that he had been involved in drug trafficking in a significant manner. The most common description in the publications was of the accused as a "drug baron", "drug boss", or "drug lord". As a variant, he was also referred to as a "drug Tsar", "drug supremo", "drug king", "drug tycoon", "drug trafficker", "drug importer", "drug smuggler", "drug dealer" or a "drug runner". On some occasions those various descriptions were proceeded by the adjective "fugitive", "runaway", or "convicted". On other occasions he was referred to as a "crime boss" or "crime king pin". Some of the articles referred to him being involved in a "drug cartel", "drug syndicate", "drug empire", or "drug manufacturing business".
47 In paragraph 10 of her second affidavit, Ms Morgan sets out some 81 publications, between 3 June 2004 and 28 October 2008, which alleged or inferred a connection between the accused and the "underworld". Thus, he was commonly described as an "underworld figure", or, alternatively, as a "underworld identity", "underworld boss", "underworld fugitive" or "underworld king pin". Other publications referred to him in connection with the "underworld", and alleged that he had been charged over "underworld murders" or that he was an "underworld murder suspect" or "accused underworld killer".
Articles stating that the accused is a gangland figure
48 In paragraph 11 of her second affidavit, Ms Morgan refers to 43 publications between 6 June 2004 and 13 August 2008, which she has collected together under the heading "articles stating Mokbel is a gangland figure".
49 In some of the publications, the accused was directly described as a "gangland figure", a "gangland identity", a "gangland fugitive", a "gangland kingpin", or an "accused gangland killer". He was also described as a "gangster".
50 However, in about one half of the publications relied on, the reference to the accused as being a member of the "gangland" was more indirect or implied. For example, some articles appeared under a heading which uses the word "gangland", and in the course of the article the accused was referred to in a manner which, in most cases, convey the inference that he was a member of the gangland. In other publications, the connection between the reference to the accused, and the use of the word "gangland", is more remote and, to that extent, debatable.
References to accused as a murderer or crime boss
51 In paragraph 12 of her second affidavit, Ms Morgan refers to 33 publications between 26 June 2002 and 21 May 2008, under the heading "reference as to Mokbel as a murderer or crime boss". In fact, one of the publications (Exhibit GM 12.5) does not appear to contain any reference to the accused at all.
52 On my reckoning, 15 of the publications referred to the accused as a "crime boss" or "drug boss". In a number of the publications referred to by Ms Morgan in this section, the accused was not the primary focus of the article, but the reference was made to him in passing in a broader context (for example Exhibits GM 12.1, 12.14, 12.19, 12.23, 12.27, 12.28). Further, a number of the publications directly related to the accused's flight from Australia, his capture, and his extradition proceedings (Exhibits GM 12.15, 12.16, 12.17, 12.20, 12.29).
53 On 29 March 2006, the Herald Sun published an article (Exhibit GM 12.29) alleging that the accused had absconded when he learnt that he was being investigated for at least two gangland murders. The article alleged that the accused had paid for Nik Radev to be killed, and that he was also a suspect in the murder of another drug dealer later that year. Subsequently, on 9 January 2007, the Herald Sun published an article (Exhibit GM 12.26) stating that underworld sources had claimed that the accused had paid for a "hit" on Mario Condello, and that police had rejected a suggestion that Mokbel had been murdered in revenge. The article stated that police sources were "one hundred percent sure" that the accused was still alive.
54 On 2 March 2007, the Herald Sun published an article (Exhibit GM 12.22) stating that the widow of Lewis Moran wanted the death penalty for Carl Williams who pleaded guilty to the murder of Lewis Moran. The article quoted Ms Moran as stating that "Tony Mokbel and Carl Williams put a bounty on the three of us ... they wanted to wipe out the whole entire Moran family". At about the same time, there were four publications in the media, alleging involvement of the accused in the murder of Michael Marshall. In March 2007, the committal proceeding of Goussis, for the murder of Lewis Moran, took place. One article was published at that time alleging the involvement of the accused in that murder.
55 On 19 March 2008, in a broadcast televised at 7.00 pm on ABC Network, it was stated that "Victoria Police say Tony Mokbel was one of the country's biggest drug traffickers and was a man who ordered some of the most high profile killings in Melbourne's gangland war". In April 2008, the trial of Goussis, for the murder of Lewis Moran, took place in the Supreme Court. Ms Morgan's affidavit exhibits six publications, at that time, reporting on the trial, which contained reference to the allegation that the accused was involved in the murder of Lewis Moran. At that time there was also a separate article describing Mokbel as an "accused murderer".
Publications referring to the accused absconding or to his extradition proceedings
56 In paragraph 13 of her second affidavit, Ms Morgan exhibits 34 publications, between 22 March 2006 and 13 March 2009, referring to the accused absconding or to his extradition proceedings. Of those publications, two occurred in 2009 (on 19 February and 13 March) and four in 2008. The more recent publications referred to the charging of two persons in connection with the accused's flight from Australia. Two of the publications in 2008 concerned an application made by the accused to this Court to stay the committal proceedings which were then on foot against him. Three of the publications took place between the time of his arrest in Greece in June 2007 and his extradition to Australia in May 2008, and related to that topic. The balance of the publications (26 in number) concerned the flight of the accused from Australia, attempts to find him, speculation as to his whereabouts, and similar matters.
Articles promoting or reporting on the "Underbelly" series
57 In paragraph 14 of her second affidavit, Ms Morgan refers to 28 articles, published between 1 July 2007 and 9 September 2008, concerning the "Underbelly" television series.
58 The exhibits include four publications between July 2007 and January 2008 relating to the series before it was screened. In each of them, the accused was referred to, but in the context of a reference to a number of other personalities who, in the various materials before me, have otherwise been referred to as "gangland identities". In some of the remaining 24 publications, the accused was similarly referred to in respect of the Underbelly series in a context of references to many other such identities (Exhibits 14.24, 14.22, 14.20, 14.18, 14.15, 14.11). In 12 other publications (Exhibits 14.21, 14.19, 14.17, 14.16, 14.14, 14.13, 14.12, 14.6, 14.5, 14.4, 14.3, 14.2) the article or broadcast concerned applications for, or the making of, a suppression order in respect of the series to protect the trial of another identity. In the course of those publications, reference was made to the fact that the depiction of the accused might also need to be suppressed or otherwise protected in the series. In four other publications (Exhibits 14.10, 14.9, 14.8 and 14.7), the articles or broadcasts referred to a potential application made on behalf of the accused to suppress publication of the Underbelly series.
59 The most recent article was published on 9 September 2008 in the Australian newspaper (Exhibit GM 14.1). That article reported on proceedings in the Practice Court before Vickery J in September 2008 to suppress publication of those parts of the Underbelly series which may adversely affect the rights of the accused in this case. The article reported that Vickery J permitted the Nine Network to screen the first five episodes (in edited form).
The material currently available on the internet "prejudicial to Tony Mokbel"
60 In paragraph 15 of her second affidavit, Ms Morgan refers to and exhibits 140 extracts from the internet of material which the accused claims is prejudicial to him.
61 The first 44 exhibits consist of extracts from a web log entitled "Melbourne Underworld News" between 3 May 2005 and 8 August 2006. With due respects to the contributors to that publication, most of the items could be best described as rather mindless and illiterate chatter, much of it apparently tongue in cheek. Many of the comments, apparently posted by "public users", seem to be poor attempts at witticisms concerning personalities such as the accused, Carl Williams and others.
62 The next 17 items have been extracted from the "Crikey" website and relate to items published on their website between 26 June 2007 and 20 January 2009. The "articles" appearing on that website relate to the application by the Australian Government to extradite the accused to Australia, the question whether parts of the forthcoming series of "Underbelly" needed to be edited after the accused's arrest, and the accused's return to Australia. An article published on 10 December 2008 stated that the accused was expected to appear in the Supreme Court next week for the murder of Michael Marshall in South Yarra in October 2003.
63 The next 26 extracts contain comments by public users on various internet sites, the quality of which equates approximately to those on the "Melbourne Underworld News" web log. Exhibit 15.89 is a "profile" of the accused which refers to his arrest in Greece and the charges which he would be facing. Exhibit GM 15.91 is a lengthy extract containing (inter alia) an account of the events relating to the arrest of the accused in Greece and his return to Australia.
64 The next nine publications are extracts from items on the "Crime Underworld News" comprising "timelines" which contain entries referring (inter alia) to the accused.
65 The next 26 publications exhibited to paragraph 15 of Ms Morgan's affidavits (Exhibits GM 15.100 to TR 16.126) comprise various articles extracted from the website "Wikipedia". They refer to various criminals and their associates, and also to some lesser notorious crimes. The majority of them do not refer to the accused. The extract relating to AB (Exhibit 15.110) alleges that AB was reportedly paid $150,000 by the accused for the murder of Lewis Moran. The extract relating to Lewis Moran (Exhibit 15.112) contains a similar allegation about the accused. The extract entitled "Melbourne Gangland Killings" (Exhibit GM 15.115) includes a reference to the arrest of the accused in Greece in June 2007, and his extradition to Australia. An extract concerning Naomi Robson (Exhibit 15.118) alleges that Robson had a relationship with a drug dealer, who had been dealing drugs with the accused and corrupt police, and who was supposed to testify against the accused when he fled Australia. There are also two extracts containing articles concerning the accused (Exhibits 15.123 and 15.127). The first article states that the accused was reported to have paid AB and Evangelis Goussis $150,000 for the murder of Lewis Moran, and that the accused had laundered over $2 million in a Melbourne CBD brothel which he had bought. The second article contains similar allegations. In addition, another extract (Exhibit GM 15.124) concerns the "Underbelly" television series, which alleges that the accused had responsibility for the killing of Michael Marshall. The remaining 12 extracts in this section contain articles which have some references to the accused, and also miscellaneous comments posted on various websites.
66 In paragraph 16 of her second affidavit, Ms Morgan exhibits the whole of the "Underbelly" series one program, together with a number of books and publications. The program and publications contain a number of references to or concerning the accused which, it is submitted, are prejudicial to his right to a fair trial in this case.
67 On 12 February 2008, King J of this Court made orders suppressing the publication of that series in Victoria, on the basis that its broadcast would prejudice the fair trial of Evangelos Goussis for the murder of Lewis Moran.[2] On 26 March 2008, the Court of Appeal, subject to some variations to the breadth of the order, affirmed King J's decision.[3] On 3 September 2008, application was made before Vickery J, in the Practice Court, for an injunction preventing the broadcast of an edited version of episodes 1 to 6 of the "Underbelly" series in Victoria. On 8 September 2008, his Honour made orders allowing the broadcast of the edited episodes 1 to 5, but suppressing the broadcast of episode 6 of the series in Victoria.[4] In the present application, the accused submits that the edited versions of episodes 1 to 5 of the Underbelly series 1, screened in Victoria in September 2008, contained matters prejudicial to him. Further, the whole of the original episodes of series 1 of "Underbelly" screened in all other states in February 2008 and onwards, and the DVD box set is also available for sale in all other states. The accused relies on the allegedly prejudicial effect of the whole of the series.
68 In her third affidavit, Ms Morgan exhibits correspondence from the lawyers for Channel 9, which demonstrate that the Melbourne metropolitan ratings for the first five episodes of Underbelly, which were screened between 14 and 23 September 2008, ranged between 416,000 viewers (for episode 5) and 593,000 viewers (for episode 2). Ms Morgan also exhibits correspondence demonstrating that 466,630 units of the "Underbelly" series 1 DVD have sold nationally in states other than Victoria.
69 At the party's behest, I watched the whole of the 13 episodes of the Underbelly series 1. At this time it is pertinent to make some brief remarks. First, it is clear that during the whole of the 13 episodes, the accused is portrayed as playing only a very limited role in the events depicted in the series. The central theme of the series concerns the emergence of Carl Williams in the "Underworld", his bitter falling out with the Morans and other members of the "Carlton Crew", and his fierce rivalry with, and hatred for, the Morans and the Carlton Crew. The spate of killings depicted or referred to in the series were, in one way or another, connected to the background of the murderous hatred between Williams and the Morans. The first series culminates in the emergence of Williams as a psychopathic killer, whose hubris ultimately lead to his downfall. The program describes the development of the Purana Taskforce, and the ultimate breakthroughs achieved by that taskforce, eventuating in the arrest of Williams in 2004.
70 Secondly, as I have stated, in that context the accused only plays a small part in the events depicted in the program. In paragraph 16 of her affidavit, Ms Morgan refers to some of the parts of the program, in which the accused is either portrayed, or in which he is referred to. However, his role, even in episode 10 (which I shall refer to below), could be described as "benign" when contrasted with the repeated brutal violence and other events shown in the program. The third relevant aspect of the program is that the Morans, and particularly Jason and Mark Moran, are portrayed as being particularly unsavoury characters. To a lesser extent, the same observation can be made about Lewis Moran. Certainly, the program does nothing to excite any feelings of sympathy in the viewer towards the Moran family. Fourthly, a central theme of the program is Williams's hatred of the Morans. The effect of the program is that Williams had a powerful motive to murder Lewis Moran, without any assistance or encouragement from anyone else. Fifthly, in episode 12, Lewis Moran is murdered; there is no allegation, or insinuation, in the program that the accused played any part in that killing at all. Sixthly, in the last two episodes of the program, AB is introduced, and plays a role in the death of Lewis Moran. He is depicted and described in a most unflattering manner. On two occasions, he is referred to, by the commentator, as "the veteran maggot". His physical appearance, his behaviour, and his manner of speaking, justify the attribution to him of that description in the program. Any person who watched episode 12 could be left with none other than a most powerful feeling of dislike for AB.
71 In the context of the present case, there are two episodes which have some relevance to the present application. Near the end of episode 6, the accused is depicted as attending a meeting with an interstate gangster called "The ferret", at which he is meant to apologise to the "ferret" for calling him a "dog". However, the accused, while apologising, appears to countermand it. Thereupon, he is brutally assaulted. During the assault some members of the "Carlton Crew" are present, but do not assist him. The accused is then taken by Andrew Veniaman to a hotel, where Carl and Roberta Williams then attend. That part of the program is relevant, because it may be argued as showing some motive by the accused to dislike the Morans, and also as depicting the development of his relationship with Williams. However, it must be borne in mind that that excerpt from episode 6 occurred after a number of other events portrayed earlier in episode 6, including: the introduction of Veniaman (who plays a prominent role in the next five episodes); an attack by gunmen on the house of Williams; Williams's expressed desire to kill Lewis Moran as a pre-emptive strike; an offer made by Williams to Dino Dibra to kill Lewis Moran; and of the murder of Dibra by Andrew Veniaman. Further, the beating of the accused in the presence of the Carlton Crew is not the subject of any further mention in the remaining seven episodes.
72 The other relevant part of the Underbelly series occurs in episode 10. In that episode a drug trafficker, Willy Thompson, is murdered at the behest of Williams. The accused is incensed by that murder, because he went to school with Thompson. He is then depicted as speaking to Williams at a restaurant, in which he blamed Michael Marshall for the killing of Thompson. In the next scene, Williams is shown leaving the restaurant with two associates, and offering them $100,000 each to kill Marshall. Most of the program then focuses upon the killing of Marshall by Brincat, and his arrest. Those events occupy most of episode 10 and are dramatically portrayed. In the episode, the Purana Taskforce plays a significant role, in tracking the movements of Brincat and Hentschell, and arriving at the scene shortly after the murder, and in the chase of and arrest of Brincat and Hentschell at the scene. There is no further mention of the accused in the episode after his meeting with Mokbel at the restaurant.
73 Returning to paragraph 16 of Ms Morgan's affidavit, Ms Morgan also refers to the book "Underbelly 10", by John Sylvester and Andrew Rule. She notes that, in one part, the book refers to the conviction and sentence of the accused, in 2006, for cocaine trafficking. She also notes that another part of the book contains comments by the then Federal Treasurer that the Federal tax authorities would assist in tracking and taxing the flow of money which sustained the lifestyles of "drug barons".
74 Ms Morgan then refers to a number of episodes of series one of the "Underbelly", television program in which the accused is depicted as having a close relationship with Carl Williams. That relationship is depicted in the context of criminal activity involving both the manufacture and trafficking of illicit drugs, and the murder of both Nick Radev and Michael Marshall. Ms Morgan refers to the part of episode 11, in which the accused was angry at the murder of his friend, Willy Thompson, and in which Williams offers two underworld figures a sum of money to kill Marshall.
75 Ms Morgan also refers to sections of a book "Crimes that Shocked Australia" by Ian Ferguson, of the book "Bigshots" by Adam Shand, the book "Crimes and Murders that Shocked Australia" by Ian Ferguson, and the book "Underbelly 11" by John Sylvester and Andrew Rule, which also describe the relationship between Williams and the accused.
76 Ms Morgan then refers to sections of the books, to which I have just referred, which mention the accused's links to the gambling and racing industry. In particular, reference is made to parts of those books which allege that the accused "fixed" races. Ms Morgan refers to parts of three of the books which allege that the accused was involved in corrupt dealings with members of the then Drug Squad.
77 Ms Morgan also refers to excerpts from the "Underbelly" series and the books, which suggest that the accused was involved in large scale drug manufacture and trafficking, that he was an underworld or gangland figure, or that he was a "crime boss". Ms Morgan also refers to the section of the book "Underbelly 10", which states that six murdered "gangsters" (named by the book) could be regarded as having been amongst the accused's associates at one time. Reference is made to the section of the book "Bigshots" that claims that, before his murder, Terence Hodson was planning to give evidence against both the accused and Senior Sergeant David Miechel from the Drug Squad. Reference is also made to the section of the book "Underbelly 10", in which the authors detail how witness "C" claimed that the accused and another person were to pay his "team" $150,000 to murder Lewis Moran. Finally, Ms Morgan refers to extracts from two of the books, which relate to the accused's flight overseas.
78 In his submissions in support of the stay, Mr P Morrissey, who appeared with Ms R Shann for the accused, placed particular emphasis on two of the books exhibited to Ms Morgan's affidavit. First, he referred, in some detail, to the book entitled "The Gangland War" written by John Sylvester and Andrew Rule, and published in January 2008. Between February 2008 and May 2009 210,000 copies of that book have been sold in Australia and New Zealand. The majority have been sold outside Victoria. Mr Morrissey particularly referred to the following parts of the book: parts which alleged that the accused had been involved in, or responsible for, a number of killings (pages 31 to 32, 50); allegations in the book that the accused was the head of a large "drug empire" (chapter 2 and in particular pages 38 to 42, 49 to 50; also pages 400 to 401); allegations that the accused had ordered and paid for the killing of Michael Marshall in 2003 (pages 56 to 57, 81, 223, 229); the claim by AB that the accused had paid for the murder of Lewis Moran (page 62, 289); and links between the hitman who murdered Mr and Mrs Hodson and the "Mokbel Williams Camp" (page 329).
79 Secondly, Mr Morrissey placed particular emphasis on the book entitled "Big Shots: The Chilling Inside Story of Carl Williams and the Gangland Wars" by Adam Shand, published in 2007. Sixty-one thousand copies of that book have sold throughout Australia, 8,400 of which retailed in Victoria. Mr Morrissey pointed out that, according to the dust cover, Mr Shand claimed to have "inside knowledge" of the workings of the "Underworld" in which he claimed of developing some friendships. In particular, Mr Morrissey referred to the allegations in the book: which linked the accused and Carl Williams in killings (pages 28, 32); which linked Williams and the accused in drugs (page 30); which alleged that the accused was responsible for the murder of Marshall (pages 54 to 55); which alleged the involvement of the accused with corrupt police (page 95); which suggested that the accused had offered AB $400,000 to kill Gatto (page 252); and which alleged that Williams and the accused paid $140,000 to AB to kill Lewis Moran (pages 337 to 338). Mr Morrissey also referred to a photograph in the middle of the book, alongside which it was stated that the accused "financed Lewis Moran's murder as pay back" (for Veniaman's death).
80 Finally, in her third affidavit, Ms Morgan exhibits excerpts from another book, entitled "True Crime", written by James Morton and Susanna Lobez, which was first published in 2007, and was reprinted twice in 2008. The main reference to the accused in that book occurs at pages 337 and following. There the book refers to the accused as an "amphetamine dealer". It outlines his previous convictions, his absconding on bail while he was on trial, the charges which were outstanding against him at the time of his flight, his conviction in his absence, the further charges brought against him in his absence (including the charge of murdering Lewis Moran), and the attempts to recapture the accused. The book (p 330) also refers to the accused's alleged beating in the presence of the "Carlton crew", and (at p 331) states that "it was suggested" that the accused paid for the murder of Radev in April 2003.
81 In addition, the accused relies on a report commissioned of, and prepared by, Roy Morgan Research, dated 4 June 2009, which is exhibited to Mr Andrianakis's affidavit. I shall refer further to that report later. However it is relevant to note that of the 606 respondents interviewed by the research, 61 percent stated that they did not see any of the edited version of the "Underbelly" series, in which the first five programs were screened on free to air television in September 2008 in Victoria. Twenty five percent stated that they did see some of that version, and 14 percent stated that they saw all or nearly all of it. Of the same group, 62 percent stated that they did not see any of the uncut version of the Underbelly series which was sold in the rest of Australia; 13 percent stated that they saw some of it, and 25 percent stated that they had seen all, or nearly all, of it.
82 The court has the power, in a rare and exceptional case to permanently stay the prosecution of an accused person, on the basis that antecedent publicity concerning either the accused, or the issues in the trial, has been such as to render it impossible that the accused receive a fair trial. However, as the High Court has made clear in R v Glennon[5], such a case must be truly exceptional[6], and a stay would only be justified in a case which could be properly considered as "extreme".[7]
83 In determining whether to grant a stay, the court must balance two competing interests.[8] On the one hand, it is fundamental that each accused person has a right to a fair trial. The individual accused, and the community, have a legitimate interest in securing to each accused that basic right. It is self-evident that an accused may not receive a fair trial, where the nature and extent of publicity about the accused or the issues in the trial has been such that, notwithstanding their oaths of office, and the directions given to them, the jurors empanelled on the accused's trial may decide the case, not by a judicial analysis of the evidence before them, but on the basis of prejudice against the accused engendered by antecedent publicity to the case. On the other hand, there is a substantial public interest that persons charged with criminal offences should be tried on those charges, and that their trials should proceed in an appropriate and orderly manner.[9]
84 In nearly every case, any potential prejudice occasioned to an accused arising out of previous publicity can be sufficiently dispelled, or allayed, by the provision of appropriate directions by the trial judge to the jury. In some cases, particularly where the adverse publicity has been quite recent, the trial judge may consider it necessary to adjourn the trial for a short time, or to grant a temporary stay of the proceeding, in order to enable the effluxion of time to erode the impact of the prejudicial material on the minds of any potential jurors.[10] Thus, so far, there is only one recorded case in this country of the grant of a stay arising out of previous prejudicial statements about an accused, namely, the case of Tuckiar v R[11], a case which was described as "unique" by Mason CJ and Toohey J, in their joint judgment, in R v Glennon[12]. As their Honours explained in a footnote to their judgment, in Tuckiar, after the prisoner was convicted, his counsel made a public statement in court that a confession by the accused was true. After the accused's appeal was allowed, a verdict of acquittal was entered because, in the view of the High Court, the accused could not be subjected to another trial at Darwin, and no other venue was practicable.
85 In the modern age, the advent and predominance of the live media, and the proliferation of sources of public information, has presented a particular challenge to the administration of criminal justice in our courts. The problem has been made more difficult by the pervasive reach of the internet, and by the rapid growth of new technologies, which make accessible to our community information and statements of opinion on a significantly greater scale than in previous generations. Thus, in recent times there have come before the courts, on a number of occasions, cases in which the accused, or the subject matter of the case, have been the subject of extensive and quite emotive publicity. In each of those cases, the courts have declined an application on behalf of the accused to stay his or her trial, notwithstanding the highly prejudicial nature of the publicity which has preceded the trial. In each case, the courts have concluded that appropriate directions given by the trial judge to the jury would be, or had been, adequate to offset or allay the prejudicial effect of the publicity, so as to enable the accused to have a fair trial.
86 The weight given by the courts to the effect of judicial directions to juries has been based on a number of considerations. First, it is fundamental to our criminal justice system that we assume and expect that juries will faithfully and carefully adhere to directions given to them by the presiding trial judge. That assumption is the basic underpinning of each criminal trial before a jury. As McHugh J stated in Gilbert v R[13]:
"The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one - accused, trial judge or member of the public - could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. 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."
87 In a similar vein, in R v Milat[14] Gleeson CJ (with whom Meagher JA and Newman J agreed) stated:
"The criminal justice system, of which trial by jury is an integral part, often has to function in circumstances of intense publicity potentially prejudicial to an accused person. Various mechanisms, including, where necessary, proceedings for contempt of court, are available to protect the integrity of the system. Ultimately, however, it is the capacity of jurors, properly instructed by trial judges, to decide cases by reference to legally admissible evidence and legally relevant arguments, and not otherwise, that is the foundation of the system."[15]
88 The trust reposed by our system of justice in the integrity of juries is reinforced and buttressed by the formal atmosphere of a criminal trial, and by the rigid procedures and discipline by which a trial is conducted before a jury. In Montgomery v HM Advocate[16], Lord Hope stated:
"The principal safeguards of the objective impartiality of the tribunal lie in the trial process itself and the conduct of the trial by the trial judge. On the one hand, there is the discipline to which the jury will be subjected of listening to and thinking about the evidence. The actions of seeing and hearing the witness may be expected to have a far greater impact on their minds than such residual recollections as may exist about reports about the case in the media."[17]
89 Similarly, in R v Ferguson[18] the Queensland Court of Appeal, consisting of McMurdo P, Keane and Muir JJA, stated:
"Jury deliberations take place in an environment peculiarly conducive to the unbiased assessment of evidence with a view to determining guilt or innocence. An empanelled juror does not commence his or her role as a person undertaking a novel or foreign role. Jurors are aware consciously or subconsciously of the long tradition in this country of criminal trials in which 12 impartial men and women are the deciders of fact, of the unquestioned integrity of the process and its importance to society's fabric. The solemnity and social significance of the jurors' role is reinforced by the formality of the trial and the court room setting. As we have noted, jurors are sworn or make an affirmation to give a true verdict according to the evidence. The trial judge's opening remarks are calculated to reinforce instructions already received by the jury panel."[19]
90 In addition, it has long been the experience of trial judges in this State, and in this country, that jurors in criminal (and indeed civil) trials are particularly astute and conscientious in adhering to directions given to them as to their role, and as to the principles which they are to apply in determining their verdicts. It is important not to overlook, nor to under estimate, the capacity of juries and the increasing sophistication of them. The recorded cases are replete with statements by judges reflecting the experience of the common law courts that juries have consistently, for many decades, been particularly rigorous in the performance of their judicial roles.[20] Thus, in R v Bell[21], Spigelman CJ quoted with approval the following remarks of Kirby ACJ in Yuill v R[22]:
"Courts will assume that jurors, properly instructed, will accept and conform to the direction of the trial judge to decide the case solely on the evidence placed before them in the court ... There is an increasing body of judicial opinion, lately expressed, to the effect that whatever pre-trial publicity exists, jurors when they take on the solemn responsibility of the performance of their duties in the court room, differentiate between gossip, rumour, news and opinion which they hear before the case and the evidence which they hear in the court in the trial for which they are empanelled."
91 It is for that reason that the courts accept that notwithstanding that there has been substantial previous publicity about a case, so that the jury may hold some opinion about it, nevertheless that circumstance does not of itself have the effect that the accused will be deprived of the right of trial before an impartial and unbiased jury. In Murphy v R[23], Mason CJ and Toohey J stated:
"But it is misleading to think that, because the juror has heard something of the circumstances giving rise to the trial, the accused has lost the opportunity to an indifferent jury. The matter was put this way by the Ontario Court of Appeal in R v Hubbert (1975) 29 CCC (2d) 279, 291: 'In this era of rapid dissemination of news by the various media, it would be naïve to think that in the case of a crime involving considerable notoriety, it would be possible to select twelve jurors who have not heard anything about the case. Prior information about a case, and even the holding of a tentative opinion about it, does not make partial a juror sworn to render a true verdict according to the evidence'."[24]
92 On the other hand, in determining whether to stay a criminal proceeding because of adverse publicity given to the accused or to the case, the courts attach very substantial weight to the public interest that persons charged with criminal offences be tried on those charges, and their trials should proceed in an appropriate and orderly manner. In R v Glennon[25] Brennan J stated:
"... it does not follow that, where a punishable contempt of court has been committed, the trial must be aborted. If that were the consequence of punishable contempt, the penalties imposed for contempt would be far harsher than those presently imposed, for the contempt would totally defeat the enforcement of the criminal law and penalties for contempt would have to reflect that fact. Administration of the criminal law cannot be made hostage to conduct amounting to contempt of court, even if the contempt be flagrant. If it were otherwise, the perpetrators of crimes which shock the public conscience ... would oftentimes go untried and unpunished, for pre trial publicity prejudicial to an accused is stimulated by the notoriety of the accused and the heinousness of the crime. Yet it would undermine the criminal laws protection of society and its members to refuse to allow the law to take its ordinary course in these cases. The administration of criminal justice by the courts, which proceeds inextricably to its conclusion in each case, would be adventitious if trials could be halted by a punishable contempt. In cases where a punishable contempt is committed - at least where the contempt is flagrant - public obloquy would be substituted for jury verdict and trial by media would supersede trial according to law. No community governed by law could acknowledge that persons outside the control of the State could possess such a capacity for disrupting the administration of criminal justice."
93 Furthermore, and allied to that consideration, is the important principle that the decision to prosecute a criminal offence lies solely in the discretion of the prosecuting authorities.[26] In determining whether to stay a proceeding, the court must be astute not to usurp the proper role of the prosecution in determining which cases should come for trial.[27] Thus, a court is only justified in staying a criminal proceeding instituted by the prosecuting authorities, in a singular and exceptional case, where there is a real likelihood that there will be a substantial miscarriage of justice to the accused, because the case may be determined by the jury not solely on its merits, but rather as a result of prejudicial publicity given to the case for the accused.
94 As I have stated, in recent times there have been a number of cases in which the courts have held that the accused is not entitled to a stay, notwithstanding that either the accused, or the issues in the trial, have been subjected to substantial prejudicial publicity. Some of those cases were noted by Spigelman CJ in the recent decisions in R v Dudko[28] and R v Jamal[29]. In each of the cases, the application for the stay failed, because of the abiding trust and confidence which the courts have in the integrity of juries, and in their ability to differentiate between the prejudice engendered by the antecedent publicity, and the evidence adduced in the trial of the accused. In my view, that confidence has not been misplaced. It is possible to call to mind jury verdicts of acquittal in modern times, in cases in which the accused had been exposed to significant and highly prejudicial publicity before his or her trial. Furthermore, it is the common experience of trial judges that questions asked by juries, and potential probity issues raised by them with the trial judge through the judge's tipstaff, regularly reflect a firm understanding by juries of their judicial function, and the seriousness with which juries regard and adhere to directions given to them by the trial judge.
95 It is useful to consider, briefly, some of the more recent cases, in which the courts have held that the accused was not entitled to a stay, notwithstanding very substantial prejudicial publicity given to the accused or the facts of the case before trial.
96 The leading authority is R v Glennon, to which I have already referred. In that case, the accused was a Roman Catholic priest. In 1985, the accused was cross-examined, in a case in which he was a witness, about a previous conviction which he had for indecent assault with a girl, and also about an alleged homosexual rape of one of the parties. Extensive publicity was given to that allegation in the Melbourne media. The accused was subsequently charged with a number of sexual offences against children, and appeared before the Melbourne Magistrates' Court in November 1985. Thereupon, over the next four months, a prominent radio commentator launched a vitriolic attack on the accused in three broadcasts. He alleged serious criminal conduct and sexual impropriety against the accused, and mentioned his previous conviction. Subsequently, the commentator was convicted of contempt of court arising out of those broadcasts. The contempt proceedings, and his appeals, received extensive coverage in the media. He was ultimately imprisoned, and publicly assumed the mantle of a martyr in doing so. The commentator was released from prison in October 1987. Two months later, the accused was charged with 17 sexual offences against young people. His trial was listed for August 1988. The trial judge dismissed an application on his behalf for a permanent stay of proceedings which had been made on the basis that he would be unable to receive a fair trial because of the effect of the pre-trial publicity. An originating summons seeking a stay was instituted in the Supreme Court. It was dismissed by Crockett J. The trial then proceeded in May and June 1991. The trial judge again refused a further application for a stay. The accused was convicted on five counts, and acquitted on the remaining twelve. The Court of Criminal Appeal (by a majority) allowed the accused's appeal, on the grounds that he should have been granted a stay. The Crown applied to the High Court for special leave to appeal. That application was successful by a majority, with three justices dissenting.
97 The nature of the publicity in Glennon is set out in the joint dissenting judgment of Deane, Gaudron and McHugh JJ, in which their Honours extracted part of the judgment of Nathan J of the Court of Criminal Appeal[30]. It is important to note some aspects of that publicity. First, the pre-trial publicity had included reference to the accused's previous convictions. Secondly, the allegations made by the commentator were cast very much in terms of a strong moral judgment condemning the accused. As Nathan J observed, the commentator purported to act as a "protector of public morals" who was "exposing a child molester". Thirdly, the adverse publicity was highly emotive and sensational. Fourthly, the adverse publicity was strongly sympathetic to the alleged victims of the accused, and antipathetic to him. Fifthly, the adverse publicity clearly inferred, if not stated, the guilt of the accused on the very charges for which he was tried in the County Court in 1991. It is significant that, notwithstanding those features of the publicity, the High Court held that the Court of Criminal Appeal had erred, by failing to give adequate weight to the right of the community to expect that a person accused of a serious criminal offence would be brought to trial, and, further, by failing to give adequate weight to the effect of instructions and directions given by the trial judge which were designed to focus the jury on the evidence, and to ensure that the jury would not be affected by the pre-trial publicity. It is worth noting that, although the Court's decision was by a narrow majority, nevertheless in their joint dissenting judgment, Deane, Gaudron and McHugh JJ did not express agreement with the view of the Victorian Court of Criminal Appeal; rather, their Honours held that the assessment by that Court of the effect of the pre-trial publicity was essentially a question of fact, peculiarly appropriate for determination by a State Court of Criminal Appeal, such as not to justify the grant to the Crown of special leave to appeal from a verdict of acquittal entered by that Court.
98 In R v Bell[31], the accused was charged with 38 counts involving sexual offences against five minors. The accused was a notorious paedophile, who had been subjected to a considerable amount of publicity. Indeed, the Court of Criminal Appeal of New South Wales considered that the amount of adverse publicity to which the accused had been exposed was more substantial than the accused in Glennon. Nevertheless, the court upheld the trial judge's decision to refuse to stay the prosecution of the charges. In doing so, Spigelman CJ, who delivered the leading judgment, placed significant weight on the capacity of jurors to adhere to their oaths of office, and to distinguish between the adverse publicity and the evidence called in the trial.[32]
99 A similar decision was reached by the High Court in Murphy v R[33]. In that case, a number of young men were convicted of the murder of a young woman, Anita Cobby. Ms Cobby had been murdered in circumstances of appalling brutality and callousness. As a result, there had been an extremely large amount of media publicity given to that killing, much of it sensationalist. On a number of occasions, the publicity referred to the fact that one accused, Michael Murphy, was an escapee from Silverwater Jail at the time of the offence. That allegation was repeated by the media near the commencement of the trial. Notwithstanding the amount and nature of the publicity, the High Court unanimously upheld the refusal of the trial judge to grant a stay. Again, the reasoning of the Court was grounded substantially in the Court's acceptance that properly instructed juries are able to reach rational and objective decisions, notwithstanding that they had, before the trial, been exposed to publicity which was highly prejudicial to the accused.
100 The decision of the Queensland Court of Appeal in R v Long[34] is another instance of the confidence of the courts in the capacity of a jury to disregard highly inflammatory and prejudicial material concerning an accused in a particularly serious case. In that case, the accused was charged with 15 counts of murder, arising from the tragic fire at the Palace Backpackers Hostel at Childers on 23 June 2000. Following the fire, the media published allegations about the accused, which were not only gravely prejudicial to him, but indeed were not the subject of admissible evidence at his trial. They included: that the accused had an extensive criminal history of violence; that the accused had convictions for the attempted murder of his former defacto's six year old daughter; that the accused was alleged to have deliberately set on fire a caravan while his defacto wife was asleep inside it; that witnesses had reported seeing the accused near a burning bin just before the fire at the Backpackers Hostel broke out, and standing in the crowd watching the fire; and that before the fire the accused had alerted two English backpackers to expect a fire in the building hours before it began. The publicity included an interview with the accused's ex-defacto wife, in which she gave details as to how the accused attempted to murder her, and her three young daughters, by setting their caravan on fire, and how he attempted to murder her six year old daughter by strangling her. Jerrard JA, who delivered the leading judgment of the Queensland Court of Appeal, acknowledged the gravity of the complaint made by the appellant as to the nature of the publicity to which he had been exposed, stating that it would "be difficult, if challenged, to conceive of publicity more prejudicial ... ".[35] Nevertheless, the Court of Appeal considered that the directions given by the trial judge to the jury were adequate to sufficiently dispel the prejudice occasioned to the accused, and to ensure that he have a fair trial. [36]
101 Finally, I should refer to the recent decision of the New South Wales Court of Criminal Appeal in Skaf & Anor v R[37]. In that case, the two accused, who were brothers, were charged on three counts of rape, which were alleged to have been committed in company with a number of other males. They were both of Middle Eastern origin, and of the Muslim faith. The accused were convicted at their trial. Ultimately, on appeal they were granted a re-trial. Before the re-trial took place, a violent altercation occurred at Cronulla. In a television program, the events were discussed, and one of the accused, Bilal Skaf, was mentioned by name. Shortly thereafter, the re-trial of the two accused commenced. The trial judge refused an application for a stay of the trial. Following an article in the Sydney Morning Herald, a further application was made for a stay, but refused by the trial judge. The New South Wales Court of Appeal noted that the two accused had been subjected to very considerable publicity, all of which was unfavourable to them. The documentary material, tendered to the trial judge in support of the application for the stay, was contained in five folders. The Court of Appeal noted that the publicity "was extensive, prominent and continued for a significant period of time", and "that it came to be associated with the discussion of issues relating to the behaviour of Lebanese Muslim males towards Anglo Saxon females".[38] Once again, the Court of Appeal held that notwithstanding the nature and extent of the publicity, nevertheless that publicity was not such as to have diverted the jurors from their proper consideration of the evidence in the trial.[39]
102 To the above cases may be added other examples in which the refusal of a stay to an accused has been upheld on appeal, notwithstanding that, before trial, the accused has been subjected to substantial and highly prejudicial publicity.[40] It is relevant to note a number of features common to most of those cases. First, in each of the cases the accused had been subjected to very substantial, and mostly sensational, publicity. Secondly, in a number of the cases, the publicity reflected particularly adversely on the character, probity and tendencies of the accused. Thirdly, in a number of the cases the publicity had referred to the prior convictions of the accused; in some of them, those convictions were for the same type of offence for which the accused was on trial.[41] Fourthly, in a number of cases - and in particular the cases in which the accused had been charged with sexual offences - the allegations in the publicity gave rise to the inherent risk of impermissible tendency reasoning by the jury. Fifthly, in a number of the cases, the adverse publicity contained allegations concerning the accused, and his or her antecedents, which could not be proven by admissible evidence in court. Sixthly, in nearly each case, the publicity reflected on the particular issues in the case, in a manner which was adverse to the accused. In a number of the cases, the publicity was calculated to infer the guilt of the accused on the charge against him or her.
103 As I have stated, notwithstanding those features, the courts have, consistently, declined to order a stay of the particular proceeding. It is evident from the reasoning of the courts that significant faith is placed on the integrity of juries, on their capacity to understand and adhere to directions, and on the powerful aura and discipline with which a criminal trial is conducted before a jury. The courts also recognise the reality that, because of the daily barrage of publicity to which the public are subjected, often in sensational terms, recollections of particular allegations rapidly fade, and are replaced by the latest piece of publicity to which the public is subjected. The publicity given to a particular accused, or to the case in question, must be placed in the context of the type of issues which have confronted the public in the meantime. Thus, it is recognised, as a matter of reality, that recollections fade, at least to the point that the more prejudicial thrust of the previous publicity against an accused may be sufficiently diluted in order to allow the accused a fair trial.[42]
104 In determining the application by the accused for a stay, weight must also be given to the processes by which juries are empanelled in large criminal cases in this State.[43] In recent times, in a number of cases this Court has had the occasion to undertake the empanelment of juries from a very large panel, because of the adverse publicity given to the case and to the accused. In such cases, the practice is for the trial judge to explain to the members of the panel that it is important that they exclude themselves from service in the forthcoming trial, should any of them feel that, because they had been exposed to previous publicity, or because they know anything about the case, they may not be able to bring to bear an independent and impartial mind in adjudicating the issues in the case. It is the experience of this Court that members of jury panels have been astute to identify to trial judges matters of which they are aware, or of experiences in their life, which may make them unfairly prejudiced against one or other party in the proceeding. In R v McGee & Anor[44], Doyle CJ has made similar observations about the practice in South Australia. I agree with the observations of his Honour, in that case, that the preliminary screening of the jury panel does go a long way to eliminating a risk of an unfair trial, in cases in which the accused has been exposed to substantial and prejudicial publicity.
105 It is clear that, in taking those considerations into account, the courts have given full weight to the requirement that such a case must be demonstrated as being truly "singular" or "extreme". Thus, the courts have accepted the requirement, stated by Wilson J in Barton v R[45], that to justify a permanent stay of criminal proceedings, there must be a "fundamental defect which goes to the root of the trial, of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve of its unfair consequences". In R v Glennon[46], Mason CJ and Toohey J, in their joint judgment, expressed the view that an appellate court should only set aside a conviction, on the basis of the exposure of the accused to adverse publicity, where there was a likelihood, or substantial or serious risk, that the pre-trial publicity had deprived the accused of a fair trial. In their joint dissenting judgment, Deane, Gaudron and McHugh JJ[47] expressed the test in similar terms, namely, that an accused was entitled to be protected from "an unacceptable and significant risk that the effect of pre-trial publicity will preclude a fair trial". Thus, in the recent decision of the Court of Criminal Appeal of South Australia in R v McGee & Anor[48], Doyle CJ (with whom Gray J and White J agreed) stated the test in the following terms:
"Glennon establishes that when the case for a stay is balanced against the public interest in the trial proceeding, there must be a finding of a serious risk that the McGees will not get a fair trial because of the effect of the publicity, which must give rise to 'an unacceptable and significant risk' that a fair trial is precluded."
106 Mr Morrissey presented a thorough and skilful submission in support of his application for a stay of the proceeding on behalf of the accused. He placed particular emphasis on the breadth, extent and duration of the publicity and materials published about the accused. He pointed out that the materials had been published repetitively over a long period of time. The material itself was unusually voluminous. The publicity about the accused occurred in a wide range of media, including the print media, the electronic media, "true crime" books, entertainment media, and internet "blogging". The prejudicial comment was made by an unusual range of persons including leading public figures, "bloggers", entertainment industry personalities, and "crime commentators". Mr Morrissey submitted that each of the categories of prejudice, identified in Ms Morgan's principal affidavit, had been established. Thus, the accused had been depicted as: a person of bad character with previous convictions; a person involved in criminality for which he had not been charged; a person who had been publicly criticised by public figures; a person who was criminally linked to Carl Williams; a member of a crime family; a person linked to gambling crime and police corruption; a "drug lord"; an underworld and gangland figure; a "crime boss"; a fugitive; and a senior drug dealer. In particular, the accused has been depicted as a person involved in high level drug trafficking, a leader of organised crime, a member of the group run by Carl Williams, and a murderer. Mr Morrissey submitted that while a number of the categories of prejudice, identified by Ms Morgan, might have also applied to the types of prejudice which were the subject of the reported cases to which I have referred, this is the only case in which all the categories, identified by her, exist.
107 Further, Mr Morrissey sought to distinguish the present case from all the other reported cases because of the role of the entertainment industry in disseminating prejudicial material about the accused, and also in elevating his public profile. He submitted that the "Underbelly" television series has significantly excited public interest in the events which were the subject of that series, including events relating to the accused. The "true crime" books referred to by Ms Morgan, and the Underbelly series, blurred the dividing line between fact and fiction and in doing so made more florid the type of allegations which were at large about the accused. In addition, Mr Morrissey submitted that there was a strong element of derision and ridicule of the accused in some elements of the media. He particularly referred to the interview of the journalist John Sylvester at the time of the accused's extradition to Australia, and to a number of items published on "You Tube". He also referred to the internet comments (in paragraph 15 of Ms Morgan's affidavit) reflecting a strong hostility by those who made the comments towards the accused.
108 Mr Morrissey submitted that the extent and nature of the publicity, adverse to his client, has been unprecedented. He contended that the type of publicity, which has been given to the accused, marks a new low in the decline, over the last three or so decades, in the level of respect by the media for the presumption of innocence and for the right of each accused person to a fair trial. Mr Morrissey submitted that, ultimately, the courts must take a "stand" against the continued degradation of the standards applied by the media in their respect for the right of accused persons to a fair trial. He submitted that in this case the fragilities of our legal system, in preventing prejudice to an accused, have been mercilessly exploited by the entertainment industry, and only the grant of the stay of the prosecution in this case will reinstate and protect the integrity of our criminal justice system.
109 Mr Morrissey's primary submission was that the accused has been so vilified and disparaged in Victoria that he could not receive a fair trial in this State. Mr Morrissey submitted that, taking all the publicity into account, the accused is a man who is publicly hated, and is known as a drug dealer, a murderer, a manipulator, a corruptor of the police in the system of justice, a man who hires thugs and hit men, and a man who has committed a number of criminal acts for which he has not been brought to justice. Mr Morrissey submitted that the materials published about the accused have not, on any occasion, exhibited any caution or respect for the presumption of innocence. Rather, the accused has been publicly vilified, for profit, by the entertainment industry. He submitted that no person has been subjected to such derogatory and disparaging material. Thus, Mr Morrissey submitted it is not possible for the accused to receive a fair trial in this State at all.
110 Mr Morrissey further submitted that, in the alternative, there were five categories of publicity about the accused, or the killing of Lewis Moran, which were directly prejudicial of the right of the accused to have a fair trial of the charge that he counselled and procured the murder of Moran. First, he pointed to the publicity surrounding the accused which suggested that he had had a criminal relationship with Carl Williams, and that, in that capacity, he had played a role in the killings of Marshall, Radev and Condello. Secondly, Mr Morrissey pointed to direct assertions, in the previous publicity, that the accused had been involved in the murder of Lewis Moran. Thirdly, Mr Morrissey relied on the reporting of the account given by AB, in the trial of Goussis, in which AB alleged that Williams and the accused had funded the murder of Moran. Fourthly, Mr Morrissey submitted that the publicity about the accused as a high level drug trafficker gave rise to the risk of impermissible "propensity" reasoning by the jury, namely, that drug traffickers are likely to indulge in murder in the course of a "turf war" between them. Fifthly, Mr Morrissey submitted that the reference to the previous alleged assault of the accused in the presence of Gatto would "illicitly corroborate" the Crown proposition that the accused had a motive to vent his hatred of the Carlton Crew on a senior and leading figure in it, namely, Lewis Moran.
111 Mr Morrissey submitted that the empanelment procedures, and judicial directions given to juries, would be inadequate in this case to offset the prejudice occasioned to him by the previous publicity. He submitted that if a stay of the proceeding was not granted, then it would be undesirable for me to descend to any specifics in instructing the jury panel as to the basis upon which its members should seek to exclude themselves on the grounds of pre-judgment. Similarly, in giving directions to a jury, he submitted that it would be undesirable to give a direction which mentions or refers to any of the previous publicity given to the accused in specific terms. Mr Morrissey submitted that, therefore, in seeking to alleviate the prejudice against the accused, the court would be limited to giving general directions to the jury panel and to the jury, and that those directions would be inadequate to dispel the effect of the range and type of prejudicial material published about the accused.
112 Finally, Mr Morrissey submitted that I should not temporarily adjourn or stay the trial to enable further time to pass. He advised me that his specific instructions were that if I were not minded to grant a permanent stay, then the accused would oppose the further adjournment of the proceeding. He submitted that any adjournment would be ineffective to deal with the crime books, and the Underbelly mini-series, which has already been published. Such a delay would also redound to the accused's disadvantage, since it would enable AB, on cross-examination, to explain any inconsistencies on the basis of a lapse of time affecting his memory. Mr Morrissey submitted that his client is on remand for a very serious crime, and that it would be contrary to his rights, both at common law and under s 25 of the Charter of Human Rights and Responsibilities Act 2006, for there to be any undue delay in the trial of the charge against him.
113 In response, Mr A Tinney, who appears to prosecute in this case, submitted that it is significant that there has been no case in the history of Australian law in which a permanent stay of proceeding has been granted on the basis of prejudicial publicity concerning the accused or the case. He submitted that this case is not an extreme or singular case in the sense described by the authorities.
114 Mr Tinney submitted that the accused largely has himself to blame for the vast bulk of the publicity of which he now complains. He submitted that by his public activities the accused has invited publicity relating to his relationship with Williams, his gambling, his opulent public lifestyle, and his drug trafficking for which he has been convicted. Further, and in particular, by choosing to abscond during a significant criminal trial, and by remaining at large as a fugitive for 15 months, and then by fighting his extradition to Australia from Greece over the next year, the accused drew attention to himself in a manner which was calculated to heighten his own public profile considerably. Thus, Mr Tinney submitted, the accused was largely responsible for the adverse publicity about himself and his conduct, and the prejudicial effect of which he now claims would be a basis upon which these proceedings should be stayed.
115 Mr Tinney further submitted that it is significant that in February 2006 the accused did not seek an order staying the trial of the charges then against him for importing illicit drugs into Australia. Thus, the accused did not consider, at that stage, that the prejudice to him resulting from antecedent publicity had been such as to adversely affect his right to a fair trial. Mr Tinney repeated that most of the publicity on which the accused now relies was that generated either directly or indirectly as a result of him becoming a fugitive in the course of that trial.
116 Mr Tinney contested the proposition made by Mr Morrissey that the accused is a "hated" figure in the Australian and Victorian community. Rather Mr Tinney submitted that he is an object of some fascination, and that, in a sense, he is something of a "celebrity". He submitted that the accused is not held in the type of contempt, and with the same hostility, as a number of accuseds who have been charged with sex offences against children, and with some alleged serial murderers, such as Dupas, Debs and Milat. He further submitted that the trials of each of those persons had not been stayed on the basis of apparent public dislike or distaste for the accused, because of the recognition by courts that juries are able to set aside any antecedent antipathy against an accused, in order to assess the case against the accused on its merits.
117 Mr Tinney further submitted that, on the other side of the equation, there is a high public interest that those charged with serious criminal offences should be duly tried. In this case, the allegation against the accused is particularly serious, involving a murder in a public place, allegedly by paid assassins, of a man whose two sons had been already murdered in the context of the "gangland war" which was then raging in Melbourne. Mr Tinney submitted that the murder of Lewis Moran shocked the Victorian public. Four of the five persons, alleged to have been responsible for the murder, had already been tried. In those circumstances, there is a particular public interest that the accused, also charged with that offence, should be tried for it.
118 Finally, Mr Tinney submitted that in giving directions to the jury panel, it would be appropriate to require to be excused from service as jurors in the case, anyone who has read the "true crime" books identified by Mr Morrissey, anyone who has viewed the unedited version of the television series "Underbelly", and anyone who has visited or viewed any internet material which contains information about the accused, the crime in question or any other matter touching on the trial. He submitted that such directions to the panel would be effective in disqualifying those who might have been exposed to the more enduring type of publicity about the accused. Further, he submitted that appropriate directions to the panel, and to the jury, would be sufficient to dispel any underlying prejudice against the accused or about the case.
119 It is clear from the material produced on this application that there has been a very substantial amount of publicity about the accused over the last decade. That publicity has, almost without exception, reflected adversely on the accused. In particular, I accept that the accused has been subjected to a significant amount of publicity and public materials which correspond with the various categories of prejudice identified by Ms Morgan in her second affidavit.
120 Thus, it is clear, beyond argument, that any person selected to serve on a jury in the forthcoming trial would have heard or read about the accused, and that the knowledge by that juror of the accused would be derived from the type of publicity which has been placed in evidence on this application. It is highly likely that the publicity about the accused has had the effect that any person selected as a juror in the trial would have an adverse impression of the accused's character, integrity and conduct.
121 In support of the application, Mr Morrissey referred to the report prepared by Roy Morgan Research dated 4 June 2009, which is exhibited to Mr Andrianakis's affidavit. According to that report, of the 606 persons who completed the survey, 72 percent stated that they personally believed that the accused was a drug trafficker; two percent believe that he was not; and 27 percent stated that they did not know. Of the same sample, 55 percent stated that they believed that the accused was closely involved with Carl Williams in criminal activity; two percent stated that they believed that the two men were not closely involved; and 43 percent stated that they did not know.
122 There are clear limits to the utility of the type of survey tendered in evidence. Some of those limitations have been described in the cases, including in R v Milat[49] and R v McGee[50]. However, the research by Roy Morgan does serve to reinforce that, in a general sense, the publicity about the accused is prejudicial about him, and in particular supports the submission made by Mr Morrissey that it is likely that those who would be selected to act as jurors in this case may well have a preconception about the type of relationship the accused had with Williams, and about the accused's involvement in drug trafficking.
123 The critical question is whether as a result of the publicity, it is likely that the accused would not receive a fair trial of the charge against him, notwithstanding the effect of appropriate empanelment procedures and judicial directions given to the jury. As I have stated, Mr Morrissey's primary proposition is that the widespread publicity about the accused has been such that he could not, in any case in Victoria, receive a fair trial. However, as I pointed out in argument, that is not the question which I must determine. Rather, the question is whether, notwithstanding the employment of appropriate procedures at the trial, it is likely that the accused's right to a fair trial, of the particular charge against him in this case, has been so adversely prejudiced that, notwithstanding the public interest in the trial of those proceedings, the justice of the case requires that I should stay the proceeding against him.
124 As I have just stated, the accused will come before the jury as a man whose public reputation and character has been significantly tarnished. However, I consider that Mr Morrissey substantially overstated the position by claiming that the accused has been the subject of significant public hatred. In my view, the publicity about the accused has not been such as to lead to the level of intense public opprobrium occasioned to the accused in the cases in which it was alleged that the accused had been guilty of a number of sexual offences against children, such as in the cases of Bell, Glennon, Ferguson and D'Arcy, to which I have already referred. Nor has the accused been portrayed as a homicidal and sadistic monster, as was the case in Von Einem and R v Dupas (No 3). In each of those cases, the Courts held that the public revulsion towards the accused, engendered by the adverse publicity, could be sufficiently allayed by judicial directions, so as to afford the accused a fair trial.
125 The previous convictions of the accused have been referred to, both specifically, and in a general sense, by the media on a number of occasions. However, as I have already pointed out, there are a number of cases in which a stay has been refused to an accused, notwithstanding that significant publicity has been given to that accused person's previous convictions. Indeed, in some of those cases, the publicity concerning the accused's previous convictions was far more prejudicial than in this case. This was particularly so where the previous convictions, which had been the subject of publicity, related to offences which were the same, or a similar type of, offence with which the accused was charged, such as in Von Einem, Burrell and Dupas (No 3). In a number of the cases, the publicity had referred to the previous offending of an accused charged with sexual offences against children. That publicity carried with it a high risk of impermissible tendency reasoning against the accused, based on the underlying proposition that the accused was a person driven by psychological or physiological impulses to offend in the manner alleged by the Crown. Notwithstanding that consideration, the courts, on a number of occasions, have considered that appropriate directions given to the jury panel, and to the jury, have been sufficient to negate the prejudice to the particular accused.
126 In the course of a criminal trial, it is not uncommon for a judge to be required to give directions to juries that they must not use particular admissible evidence, adduced against an accused, in a prejudicial or unfair manner. Those directions are particularly required, and given, where evidence, prejudicial to an accused, might be relevant to background or relationship issues, and where relevant evidence necessarily reveals unrelated and disreputable conduct by an accused. It is the experience of the courts that juries have been, and are, astute in following directions of that type, so that the evidence has been admitted, notwithstanding its prejudicial potential.
127 In this context, it is also relevant to observe that the present case does not have a particular element, which is commonly present in cases where there has been adverse publicity given to an accused charged with sexual offences against children. In those cases, the publicity has often had the effect of engendering powerful sympathy for the victims, who were the principal prosecution witnesses against the accused. Thus, the effect of the publicity in those cases had not only tarnished the accused, but had also significantly enhanced the credibility of the prosecution's main witnesses. By contrast, in this case, none of the publicity has been such as to create any sympathy for Lewis Moran. Indeed, it is fair to observe that the previous publicity has cast the Moran family, including Lewis Moran, in a poor light. Furthermore, none of the publicity has reflected well on the critical Crown witness in this case, namely AB. As I have already indicated, the last two episodes of the "Underbelly" series portrays him in a particularly unsavoury manner. As I have stated, he is twice described in the program as "the veteran maggot". In their publication, "The Gangland War", Sylvester and Rule also describe AB in particularly disparaging terms (pages 59 to 60).
128 It is also relevant that the previous publicity does not contain any suggestion that there is some "evidence", which will not be adduced in the forthcoming trial, which supports or corroborates AB's account of the involvement of the accused in this case. In particular, there is no suggestion, in any of the publicity, of any other evidence, which is not admissible in this case, which supports AB's claim that he spoke to the accused before the murder of Lewis Moran, and that, after the killing took place, the accused met with AB and paid him for it. In this respect, the case is starkly different to Long's case, in which the media prominently claimed that there was other evidence (which was not adduced at trial against the accused) which implicated the accused in the hostel fire.
129 Mr Morrissey drew my attention to some of the previous publicity which had been given to the trial of Goussis, and in particular to the evidence given by AB, in that case, that both Williams and the accused had procured him to organise the murder of Lewis Moran. The publicity, given to those allegations in that trial, is a matter of some concern. On the other hand, it is pertinent to note that there are a number of cases, in which the courts have held that the trial of an accused was not unfair, notwithstanding that there had already been publicity given to previous committal proceedings, a previous trial, or a public inquiry, which had publicly focused on evidence adverse to the accused. In this respect, it is noteworthy that the adverse effect of the evidence in the Goussis trial is by no means as substantial as the effect of the allegations against the particular accused, which had already been publicly ventilated in earlier proceedings in cases such as Lewis, D'Arcy, McGee and Thomas (No 3).
130 The allegations, in the materials, that the accused has previously been involved in other murders is, naturally, also a matter of some concern. Nevertheless, those allegations are not as prejudicial as the substantial publicity which had been given in some cases to the accused's previous convictions for murder, as in Von Einem, Dupas (No 3) and Burrell. Furthermore, while the allegation has been made on more than one occasion, it was not the most prominent allegation made about the accused. I accept, nonetheless, that those considerations do not exclude the realistic possibility that potential jurors may recall those allegations either in general or in specific form. Nevertheless, the position and thrust of the allegations, in the context of the publicity given to the accused, should not be overstated.
131 In the course of submissions Mr Morrissey told me that, if the case does proceed, the accused will make an admission that at the material time he had a close personal friendship with Carl Williams. However, he submitted that the flavour given to that relationship in the media has been such as to occasion incurable prejudice to his client. If I do not stay the proceeding, I shall direct the jury carefully as to the relevance of the admission made by the accused as to his relationship with Williams, and also direct the jury that they must not indulge in "guilt by association" reasoning as a result of that circumstance. As I have already noted, it is not unusual for judges to give such a direction to juries. That type of direction is readily comprehensible, and is given in the confident expectation that it will be followed by the jury.
132 In assessing the prejudicial effect of the publicity relied on by the applicant, it is important to bear in mind the period of time which has lapsed since the publication of the various matters relating to the accused. With one exception, the latest media publication, in each of the categories identified by Ms Morgan in paragraphs 2 to 14 of her affidavit, occurred about twelve months or more ago. As I noted in paragraph 56 above, there were two publications relating to the accused absconding in February and March of this year.
133 That time lapse is important, not just because of its effect on human memory, but also because it places the publicity about the accused into an appropriate contemporary context. The population, from whom a jury is selected, is presented by the media, on a daily basis, with a vast array of issues. Over the last year prominent publicity has been given to a significant range of global, international, national and local events. Commonly, some events assume a singular prominence for a short period of time, when they are subjected to an intense focus and analysis by the media, only to fade from public view just as quickly. In the meantime, members of the community are busy with their daily lives, coping with the challenges and issues which life presents to them.
134 Thus, commonly, we tend to forget issues which, at one time, assumed great prominence in the press. Some issues are ongoing, such as the global issues of the international financial crisis and recession, the swine influenza epidemic and climate change. Other international issues assume prominence, and have been largely forgotten. They include earthquakes in China and Italy, a devastating cyclone in Burma, terrorist attacks in Mumbai, the Zimbabwe elections and their tragic aftermath, the uprising in Tibet shortly before the 2008 Olympic Games, the war in Sri Lanka and the assassination of Benazir Bhutto in Pakistan. Nationally other issues have assumed temporary prominence, including the Prime Minister's apology to the Stolen Generation, the replacement of the Opposition Leader, the financial stimulus package, the proposed emission training scheme, the Prime Minister's utility vehicle, and, recently, the imprisonment (without charge) of an Australian citizen in China. Locally, Victorians have coped with a number of other issues, including the devastating bushfires of Black Saturday, the unsuccessful committal proceedings against a State Government Minister, the trials of alleged terrorists, the recent arrest of other members of the community on alleged terrorist charges, the proposed desalination plant, increasing violence on our streets, and the drought. Some of those issues are memorable, others are soon forgotten. However, the existence of those and other issues place the considerable volume of publicity concerning the accused into a more relevant context.
135 I am not suggesting that the passage of time, and the intervention of other such issues, has obliterated the effect of the publicity to which the accused has referred in this application. However, it has had an important effect, eroding the public's memory of the material, blurring the recall of details of it, and dulling its poignancy. I readily accept that the passage of time is not a complete panacea. However, it is a relevant factor to take into account in measuring the potential prejudice to the accused, and in assessing the potential efficacy of appropriate judicial directions to the jury panel and to the jury.
136 Mr Morrissey accepted that, in the main, the publicity in the media about the accused has occurred one or more years ago. However, he relied particularly on the effect of the continued publication of the "true crime" books, which contained prejudicial references to the accused, and to the continued availability, interstate, of the "Underbelly" series 1 DVD. As I have already noted, while the content of the "Underbelly' series does contain matters prejudicial to the accused, nevertheless I do not consider that that prejudice, itself, could not be appropriately offset by judicial direction. The content of some of the "true crime" books, referred to by Mr Morrissey, is a matter of greater concern. However, as pointed out by Mr Tinney those books have had limited publication in Victoria. The significant majority of Victorians have not read them. In most of the books, the extracts relating to the accused are to be read in the context of a whole host of allegations made about a large number of other "underworld" figures and events. While I accept that, notwithstanding those considerations, there is nevertheless a residual potential for the content of the books to generate prejudice against the accused in the trial, in my view that prejudice is by no means overwhelming, and would be appropriately amenable to judicial direction.
137 In addition, Mr Morrissey pointed to the continued publication of the materials on the internet, which are referred to in paragraph 15 of Ms Morgan's second affidavit. However, as is commonly the practice, I shall instruct both the panel, and the jury, that they must not access any part of the internet in relation to any aspect of the case. In doing so, I shall remind the jury that they are now forbidden, under s 78A of the Juries Act, to carry out any such research.
138 Ultimately, the critical question concerns the extent of the residual prejudice to the accused in respect of the issues which will be determined by the jury in the forthcoming trial. As I have stated, it is inescapable that, notwithstanding the passage of time, the accused will come before the jury as a man whose character and reputation have been significantly disparaged as a result of the publicity to which he has been subjected. However, it is significant that in the forthcoming trial the focus, to a substantial extent, will be on the credibility and honesty of the witness AB. The critical question for the jury will be whether it is satisfied beyond reasonable doubt of the truth and reliability of the allegations made by AB implicating the accused in the murder of Lewis Moran. AB will be subjected to intense cross-examination on a number of issues, including issues relating to his credit, and issues relating to the circumstances in which he came to be an informer in this case. The focus on AB will, of necessity, be given even greater prominence and emphasis by directions which would be given to the jury as to the care which will need to be taken by the jury in assessing his evidence. In particular, the jury will be cautioned of the dangers of relying on the testimony of AB, in the absence of corroborative evidence. Those directions have been regularly given by trial judges to juries, and are easily capable of understanding and application by them. In the present case, the directions will serve to emphasise the focus of the trial on the truthfulness and reliability of AB's evidence. In undertaking an assessment of AB's evidence, it will be a simple intellectual task for the jury to sever out, and ignore, the effect of any adverse publicity to which the accused has been subjected.
139 In this context, Mr Morrissey submitted that there is a risk that the jury will, impermissibly, consider that the evidence of AB against the accused is corroborated by matters which have been the subject of the publicity relating to the accused. In particular, he submitted that the jury might find "illicit" corroboration in events which have been the subject of publicity, such as the alleged beating of the accused in the presence of the Carlton Crew, the alleged criminal relationship between the accused and Williams, the alleged involvement of the accused in the drug world, and his alleged position in the "underworld". While I accept that the publicity of all those matters does have a potential to prejudice the trial of the accused, in my view it would be a relatively simple matter to direct the jury to such evidence (if any), adduced in the trial, which might be capable of corroborating AB. The evidence, if any, will be confined, and will be able to be simply identified, and readily understood by the jury. In the formal atmosphere of a criminal trial, requiring as it does close and sustained attention by the jury to the detail of the evidence, and in the context of strong and repeated judicial directions, I am confident that a jury would be appropriately conscientious in relying, solely, on the evidence adduced in the trial, in assessing the credibility and reliability of AB's allegations against the accused.
140 In every criminal trial, it is common practice for the judge, on an empanelment, to identify to the jury panel a need for its members to disqualify themselves from service in the trial, if they are acquainted with anyone or anything which might affect their ability to hear and determine the case in a fair and unbiased manner. While counsel in this case have put different positions in the appropriate directions which might be given to a jury panel, in my view either the general form of directions (advocated by Mr Morrissey), or the more specific form of direction (advocated by Mr Tinney), would be largely effective. It is my experience, and the experience of other trial judges, that panel members are careful and conscientious in identifying matters, which might potentially compromise their ability to serve on the jury. Similarly, as I have already remarked, it has long been the experience of common law judges that juries readily understand, and adhere to, the directions given to them that they must determine the case in a fair and unbiased manner on a proper intellectual assessment by them of the evidence adduced in the trial. As I have already noted, verdicts and questions by juries in criminal trials have, time and again, reflected the careful attention paid by juries to that type of direction.
141 In a similar manner, juries have regularly been able to set aside emotional feelings, such as distaste for an accused, or sympathy for the victims and their families, to return verdicts of not guilty on the evidence, notwithstanding the weight of prejudice engendered by those factors against the accused. The integrity, and indeed the courage, of juries, on a consistent basis, to be faithful to their oaths of office has been demonstrated, time and again, in the courts of this State, and of other states and territories of this nation. The continued retention of the jury system is itself a consequence of the informed recognition and understanding, based on significant experience, that trial by jury is the fairest method of trial, and the best protection of the liberty of the subject. While in this case it must be acknowledged that the duration, extent and breadth of the publicity about the accused has been substantial, and that its content and subject matter has been prejudicial, nonetheless I do consider that appropriate empanelment procedures, and directions to the jury, will sufficiently allay the prejudice against the accused arising from the publicity, so as to ensure him a fair trial of the charge against him, based on the proper assessment by the jury of the evidence in the trial.
142 Further, I consider that there is substantial force in two propositions made by Mr Tinney. First, the charge against the accused is a particularly serious charge. While any charge of murder is serious, the allegations in the case include those identified by Mr Tinney, namely, the paid murder of a man in a public place in the context of a spate of underworld killings. In those circumstances, the community, and indeed the accused, are entitled to the proper trial of the charge, unless it could be demonstrated that the jury's determination of the charge would be improperly affected by the antecedent publicity, so that the accused would not thereby receive a fair trial of the charge against him. As I have stated, notwithstanding the nature and extent of the publicity involving the accused, I am not satisfied that that will be the case.
143 In addition, I do consider that it is a relevant circumstance, in the balancing equation, that the accused has contributed to the elevation of his public profile, and thus to the prominence of some of the publicity in respect of him, by his deliberate decision to abscond during his trial in the Supreme Court in February 2006, by remaining at large for more than one year, and by his decision to publicly fight the extradition proceedings against him in Greece. Those actions by the accused were calculated to increase his prominence. Historically, the Australian public has long had a fascination with those who have become fugitives. As I have already pointed out, when examining the materials exhibited to Ms Morgan's second affidavit, a substantial amount of publicity concerning the accused can be attributed, either directly or indirectly, to his flight from Australia, and to his opposition to the extradition proceedings against him. Indeed, it is significant that, although the accused had been the subject of some publicity before that time, he did not seek a permanent stay of the proceedings in the Supreme Court in February 2006. In submissions before me Mr Morrissey, correctly, conceded that the publicity relating to the accused up to that time could be sufficiently allayed by appropriate judicial direction.
144 I accept that not all of the subsequent publicity can be attributed, directly or indirectly, to the accused's flight from Australia. Mr Morrissey correctly points out that the "entertainment" material, and in particular the books, and the Underbelly series, were not causally related to the accused's flight from Australia. However, it is relevant that a not insubstantial part of the publicity since early 2006, of which the accused now complains, can be attributed to his flight from Australia. While that circumstance does not, of itself, diminish the prejudicial effect of the publicity, it is, I consider, a relevant circumstance, in the balancing equation between the public interest in the trial of the proceeding, and the accused's interest in a fair trial of the charge against him. Put simply, the accused has, at least to some extent, by his deliberate actions been the cause of a substantial volume of publicity in respect of him. That publicity has elevated the accused's public profile and stimulated public interest in him. It is a not insubstantial part of the publicity which, he now complains, has deprived him of a right to a fair trial in this State.
145 Thus, as a result of the analysis which I have undertaken of the publicity relating to the accused, I am satisfied that it will be possible for the accused to have a fair trial of the charge against him, notwithstanding the very substantial adverse publicity to which he has been subjected for a number of years. In particular, as I have noted, most, if not all, of the species of prejudice identified by Ms Morgan in her affidavit have been present in other cases, in which the courts have considered that appropriate judicial directions will ensure that the accused, nevertheless, has a fair trial. Further, the allegations against the accused in this case do not contain a number of the more potent and emotive forms of prejudice, which have been present in those cases. Each of the matters identified by Ms Morgan in her affidavit, and by Mr Morrissey, are, I consider, individually susceptible to appropriate direction to the jury panel and to the jury. Further, as I have indicated, in my view, the type of prejudice to the accused will not have the effect of distracting the jury from the critical issues which will be agitated in the forthcoming trial. I am satisfied that, with appropriate direction, the jury will fairly and properly remain faithful to their oaths of office, and dispassionately assess whether they are satisfied beyond reasonable doubt of the allegation made by AB, that the accused was criminally implicated in the killing of Lewis Moran.
146 I appreciate that the main thrust of Mr Morrissey's submission was that the concatenation of the various types of prejudice, set out in the affidavits, is collectively so powerful that it could not be realistically offset by strong judicial direction to the jury. However, for the reasons which I have already rehearsed at some length above, I am not satisfied that is the case. I consider that the arguments advanced on behalf of the accused do underrate the capacity of juries to perform their roles consistently with their sworn duties. The experience of the courts, as frequently described in the authorities, is to the contrary. While there has been a very substantial amount of publicity in this case, I am not persuaded that this case is so singular, extreme or exceptional, that, with appropriate judicial direction, the accused will not be granted a fair trial of the proceeding. Accordingly, I conclude that the accused's application to stay the proceeding should be refused.
147 In completing these reasons, it is appropriate for me to make some short comment as to the nature and extent of the publicity to which the accused has been subjected. A review of the cases over the last ten years, and a reading of the publicity in this case, does give rise to a grave concern as to the potential effect of the media, the internet, and the entertainment industry, on the fundamental right of citizens of this country to a fair trial. A substantial amount of the publicity in this case has, in a sense, been "legitimate". However, it is clear that, by the same token, a substantial part of it has paid little heed to the fundamental presumption of innocence, and to the critical importance of the integrity of the criminal justice system. Our democracy cherishes and protects the right of free speech, which enables the type of material, which I have read, to be published. However, that right would be set at nought, if we do not have a viable and healthy democratic structure. The presumption of innocence is an essential, and indispensable, ingredient of that structure. The consistent challenge to it by the media, by the internet, and by the entertainment industry, is increasingly putting it in peril. In the absence of a proper respect for the presumption of innocence, there can be no democracy. In the absence of democracy, there is no right of free speech. Those who criticise the courts for seeking to protect the inviolable right of an accused to a fair trial would do well to bear in mind the ultimate, and indeed inevitable, destructive effect of the continued, and ever increasing, attack on that right.
148 Finally, it is appropriate that I note that the lapse from the high standards, by which our society has traditionally protected the presumption of innocence, has become so endemic, that an instance of it occurred in the building in which this Court seeks to uphold the fundamental rights of the citizen. The display outside the Banco Court, to which I have referred in paragraph 34 of these reasons, was a regrettable, if isolated, instance of such a lapse.
149 Accordingly, and for the reasons which I set out at some length, I reject the application by the accused for a permanent stay of this proceeding.
[1] R v Mokbel [2006] VSC 119 (Gillard J).
[2] R v A [2008] VSC 73.
[3] General Television Corporation Pty Ltd v Director of Public Prosecutions [2008] VSCA 49.
[4] X v General Television Corporation Pty Ltd & Ors [2008] VSC 344.
[7] At 616 (Brennan J); 623 to 624 (Deane, Gaudron, McHugh JJ, dissenting); see also R v Lewis [1994] 1 Qd R 613, 638 (Pincus JA); R v D'Arcy [2003] QCA 124, [10] (Davies JA); R v Ferguson [2008] QCA 227, [49, 50] (McMurdo P, Keane and Muir JJA); R v Long [2003] QCA 77, [166] (Jerrard JA).
[8] Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, 33 to 34 (Mason CJ).
[9] R v Glennon, 598 (Mason CJ, Toohey J), 613 (Brennan J); Murphy v R [1989] HCA 28; (1989) 167 CLR 94, 99 (Mason CJ, Toohey J); Skaf & Anor v R [2008] NSWCCA 303, [29], [33].
[10] Cf R v Glennon (above), 608 (Mason CJ, Toohey J), 623 (Deane, Gaudron, McHugh JJ); Skaf v R [2008] NSWCCA 303, [27].
[14] (Unreported, New South Wales Court of Appeal, 26 February 1998) BC9800394, at 47.
[15] See also R v WTD [2005] QCA 292, [28]; R v Jamal [2008] NSWCCA 177; (2008) 72 NSWLR 258 [19]-[21] (Spigelman CJ); Skaf & Anor v R [2008] NSWCCA 303, [28], [33]; R v Vjestica [2008] VSCA 47, [33]-[34] (Maxwell P); R v McGee [2008] SASC 328, [148]-[150] (Doyle CJ); R v Glennon (No 2) [2001] VSCA 17; (2001) 7 VR 631, 659-661 [66]-[67] (Winneke P, Ormiston JA).
[16] [2003] 1 AC 641, 673.
[17] See also R v Ferguson [2008] QCA 227, [38]; R v Vjestica [2008] VSCA 47, [31].
[19] See also R v Long [2003] QCA 77, [174]-[175] (Jerrard JA).
[20] See for example R v Glennon (above), 614 (Brennan J); R v Dupas (No 2) [2005] VSC 430; (2005) 12 VR 581, 615-616, [45]-[46] (Warren CJ); R v Dudko [2002] NSWCCA 336, [21] (Spigelman CJ); R v Vjestica (above) [31] (Maxwell P); R v Thomas (No 3) [2006] VSCA 300; (2006) 14 VR 512, 520-521 [36]-[37]; Plunkett v R (1997) 69 SASR 452, 459 (Matheson J); R v Munday (1984) 14 A Crim R 456, 457-458 (Street CJ); R v Connell & Ors (No 3) (1993) 8 WAR 542, 559 (Seaman J); DPP v Dupas (No 3) [2007] VSC 251, [13] (Cummins J).
[21] (New South Wales Court of Criminal Appeal, unreported, 8 October 1998) BC9805451, at 7-8.
[22] (1993) 69 A Crim R 450, 453-454.
[24] See also R v Glennon (above), 603 (Mason CJ, Toohey J); R v Dudko [2002] NSWCCA 336, [21] (Spigelman CJ); R v Lewis [1994] 1 Qd R 613, 633, 636 (Pincus JA); R v Ferguson [2008] QCA 227, [26]; R v Milat (New South Wales Court of Criminal Appeal, unreported, 26 February 1998) BC9800394, at 49.
[25] Above, page 613; see also Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, 50 (Brennan J).
[26] Maxwell v R (1996) 184 CLR 501, 512-514 (Dawson and McHugh JJ), 534-535 (Gaudron and Gummow JJ).
[27] R v Ferguson [2008] QCA 27, [49]; R v Thomas (no 3) [2006] VSCA 300; (2006) 14 VR 512, 517 [27].
[28] [2002] NSWCCA 336, [19].
[29] [2008] NSWCCA 177; (2008) 72 NSWLR 258, [16].
[31] (Unreported New South Wales Court of Criminal Appeal, 8 October 1998) BC9805451.
[36] [8 to 9] (McMurdo P); [174]-[175] (Jerrard JA).
[40] See for example R v Dudko [2002] NSWCCA 336, [17]; R v D'Arcy [2003] QCA 124, [6]; R v Lewis [1994] 1 Qd R 613, 631 and following; R v Dupas (No 2) [2005] VSCA 212; (2005) 12 VR 601; R v McGee [2008] SASC 328, [42]; R v Georgiou [2002] QCA 206, [5]-[7]; _R v WT_D [2005] QCA 292, [15], [28]; R v Von Einem (1991) 55 SASR 199, 210-218.
[41] See Glennon; D'Arcy; _WT_D; Long; Ferguson; Von Einem; see also Burrell v R [2009] NSWCCA 193, [151]; DPP v Dupas (No 3) [2007] VSC 251 [11] (Cummins J).
[42] R v Glennon (above) 608, 623; R v Long [2008] QCA 77, [38], [43] (Davies JA); Skaf v R [2008] NSWCCA 33, [27], [40].
[43] R v Glennon (No 2) [2001] VSCA 17; (2001) 7 VR 631, 660 [67] (Winneke P, Ormiston JA).
[45] [1980] HCA 48; (1980) 147 CLR 75, 96-97; Jago v District Court (NSW) (1989) 169 CLR 23, 34 (Mason CJ), 75 (Gaudron J); R v Glennon (above), 599 (Mason CJ, Toohey J), 615 (Brennan J).
[49] New South Wales Court of Criminal Appeal, unreported, 26 February 1998; BC 9800394 at 48.
[50] [2008] SASC 328 [117] to [123] (Doyle CJ).
R
Mokbel [2009] VSC 342
(1992) 173 CLR 592
(1989) 168 CLR 23
(1989) 167 CLR 94
(1934) 52 CLR 335
(2000) 201 CLR 414
(2008) 72 NSWLR 258
(2001) 7 VR 631
(2005) 12 VR 581
(2006) 14 VR 512
(1997) 69 SASR 452
(1993) 8 WAR 542
(1996) 184 CLR 501
(1999) 167 CLR 94
(2005) 12 VR 601
(1991) 55 SASR 199
(1980) 147 CLR 75
(1989) 169 CLR 23