R v Yildiz & Yilmaz [2002] ACTSC 41

". . . on the 13th day of October 1998 at Canberra in the Australian Capital Territory Riza Yilmaz, Melissa Yilmaz and Mutlu Yildiz entered a part of a building, namely Unit 24, 10-12 Howitt Street Kingston as trespassers with intent to assault a person therein, thereby occasioning to him actual bodily harm, and at the time of doing so had with them a firearm, namely, an air rifle."

3. The grounds relied upon in support of the application were that there had been publicity, adverse to the accused, arising out of their acquittal of both murder and manslaughter following the violent death of one Abdullah Al-Ghamdi, first Secretary to the Royal Saudi Embassy. There was a further application that a survey of potential jurors be carried out. It was submitted that the potential pool of jurors should be regarded as irreversibly tainted by that publicity. It was further submitted that such tainting could be ascertained by a survey of potential jurors, that is, persons eligible to be chosen as jurors, but not, of course, the specific persons who will be summonsed to serve on the trial of the accused to consider the present indictment. I also refused that application.

4. Mr Al-Ghamdi was found dead in his apartment, the premises described in the present indictment, on 13 October 1998. There were found to be 36 stab wounds, of varying severity, on the body and two severe slash wounds to the throat. A small air rifle pellet was found under the skin of the deceased at the back of his head. It was apparently inflicted after death and, of itself, would not have been of any serious consequence.

5. The matter was, understandably, treated as a murder inquiry and investigations were undertaken by police to find any person or persons implicated in Mr Al-Ghamdi's death.

6. From 13 October 1998 reports appeared in the media giving details of the progress of the investigation. Some "background" reports, for example, The Daily Telegraph (DT) on 15 October 1998, made allegations adverse to the deceased, referring to his use of prostitutes, heavy drinking and violence when drunk. On the other hand, it was also reported (The Canberra Times (CT) 15/10/98) that the deceased had been "easy-going, courteous and hospitable".

7. On 16 October 1998 there was reference (The Australian) to the deceased's "young girlfriend Leila", who had moved to Sydney. It later transpired that this was a reference to Melissa Yilmaz, neë Moussa, who had moved to Sydney and later became first affianced to and then married Riza Yilmaz. There was also reference to "a woman screaming" about the time of death (CT 16/10/98). There was some mention of "a man running from the scene" (CT 18/10/98).

8. After December 1998 the publicity became less frequent. In March 1999, The Canberra Times published an in-depth article containing speculation as to the manner in which the deceased met his death.

9. It was not until 1 June 1999 that it was reported that arrests had been made in Sydney. Murat Kurt and Mutlu Yildiz were charged with being knowingly concerned in the murder of a diplomat (that is, an "internationally protected person"). On 9 June 1999, it was reported that "Melissa Moussa, 22, and a 28-year-old man" were also charged "with the murder". His name, Riza Yilmaz, was referred to in a report of the appearance of Ms Moussa (as she was then named) in the ACT Magistrates Court.

10. Eventually, all four were presented before the ACT Magistrates Court charged in respect of the death of Mr Al-Ghamdi.

11. The Crown case was presented by a representative of the Commonwealth Director of Public Prosecutions (DPP) to the ACT Magistrates Court on 29 June 1999. Not all of the allegations so detailed were subsequently supported by evidence but The Canberra Times on 30 June 1999, reported that:

Saudi diplomat Abdullah Al Ghamdi was brutally stabbed to death after his former girlfriend and her fiance went to his apartment to punish him for harassment, the ACT Magistrates Court was told yesterday.

The court heard that Melissa Moussa, 22, and Riza Yilmaz, 28, who were married in March this year, drove from Sydney with two men on October 12, last year, to touch up Mr Al Ghamdi, 54, after constant threats from the Saudi diplomat.

The group had agreed to go to Canberra and beat the shit out of him and scare him so he doesn't do it again. It was alleged that Moussa, who was known as Layla, had been receiving threatening and abusive phone calls from Mr Al Ghamdi, after their relationship break-up as he tried to convince her to move back to Canberra.

Mr Al Ghamdi allegedly told Moussa, You can't get away from me. I kill you and your boyfriend. No-one can touch me, even the police can't touch me. It was alleged during one 12-hour period in late September last year Mr Al Ghamdi made 38 phone calls to Moussa's mobile and to her father, Marwan Moussa. Yilmaz, who has been charged with Mr Al Ghamdi's murder, allegedly told a friend that, I'm - gonna go there and I'm gonna kill the prick. Mr Al Ghamdi had also accused Moussa of allegedly stealing money from him.

Moussa had told police that she had stayed with Mr Al Ghamdi after being evicted from her father's house. She said she had had sex with him twice, but did not love him and was not attracted to him. She denied stealing from him.

The court heard that Yilmaz and Moussa, who has also been charged with the murder, arrived at the Kingston apartments with Murat Kurt, 27, and Mutlu Yildiz, 25, who have both been charged with being knowingly concerned with Mr Al Ghamdi's murder.

It was alleged that Moussa, a former Lake Tuggeranong College student who had just resigned from her receptionist job at Limro Cleaning in Fyshwick, let the three men into Mr Al Ghamdi's apartment.

A post-mortem examination found 22 knife wounds to his back and neck and five to the front of his body. A pellet from an air rifle was found embedded in his neck but he had died from two severe knife wounds which severed the main artery and vein in his neck.

Mr Al Ghamdi, wearing a white kaftan, was found on the afternoon of October 13 lying in a pool of blood on his kitchen floor.

Australian Federal Police Sergeant William Graham told the court that Yilmaz was seen leaving the apartments with a rifle, owned by Kurt, a knife and with blood on his shirt.

Sergeant Graham said Moussa had denied being in Canberra on the night of the murder.

But a NSW Roads and Traffic Authority Safetycam, which monitors heavy trucks on the Hume Highway, filmed her car travelling south towards Canberra at 10.45pm on Monday, October 12 and north towards Sydney 4 1/2 hours later.

It was alleged that Yilmaz disposed of the knife and a bloodied shirt on the Hume Highway.

When asked by Kurt what he had done, Yilmaz allegedly said, He got what he deserved. I made sure the fucker was dead. I cut his throat from one end to the other and I stabbed him. The c--- wouldn't die. The evidence into Mr Al Ghamdi's death was heard in the ACT Magistrates Court for the first time yesterday (during Moussa's bail application).

12. There were reports, thereafter, of bail proceedings involving the accused.

13. It was reported on 28 August 1999 that the Commonwealth Crown was proposing to charge Murat Kurt with murder. At the same time, the Crown appeared to accept as true his assertion that he had no knowledge that anything more than a beating of the deceased to dissuade him from harassing and threatening Ms Moussa was intended. It was alleged that he and Ms Moussa had, after entry had been gained to the deceased's apartment, waited outside in the car park. Mr Yildiz joined them shortly afterwards followed, about ten minutes later, by Mr Yilmaz.

14. The committal proceedings were, as may be expected, extensively reported, including details of alleged admissions by Mr Yilmaz. One such admission was an equivocal statement made to a nurse at "Long Bay Jail Hospital" (CT 6/11/99); another, an allegation by a fellow remandee, (CT 10/11/99) was in terms that made it clear that the latter's evidence was a transparent fabrication. It referred to a fanciful scenario in which Mr Yilmaz was procuring prostitutes for the deceased. It was also reported that there was evidence that Ms Moussa had told friends that she could get somebody to "wipe him [that is, the deceased] out" (CT 11/11/99).

15. It was also reported (CT 12/11/99) that Mr Yilmaz had told a friend that someone in Canberra had been forcing himself on Mr Yilmaz's wife (Moussa) and that the friend agreed to go to Canberra with Mr Yilmaz "to teach [Mr Al-Ghamdi] a lesson; give him a good talking to and possibly "a few slaps if he didn't back off"." It was not alleged that there had been talk of more serious violence, murder or the use of weapons.

16. On 8 December 1999 The Canberra Times reported more details. A schizophrenic armed robber, another fellow remandee of Mr Yilmaz, was reported to have offered evidence, which, like the first remandee's evidence, turned out to be self-evidently absurd, to the effect that Mr Yilmaz had told him that he had killed the deceased "with a penknife in self-defence". He was supposed to have said that he had done it alone after the others had left the flat. He had reportedly told "the others", when he got to the car "I killed the c--- I think he is dead".

17. There was, on the Crown case, a strong inference that the four had come to Canberra intending to abuse, intimidate and, possibly, beat the deceased but that that plan went badly wrong leading to at least Mr Yilmaz, and possibly Mr Yildiz, stabbing and slashing the deceased. It appeared, according to prosecutors, that two knives had been used.

18. It was reported on 12 April 2000 (Associated Press Newswires) that Murat Kurt had pleaded guilty to being an accessory after the killing. As the reporter, somewhat ironically as it later appeared, commented "It was not immediately clear how Kurt is alleged to have co-operated in the crime". It later transpired that he had concealed the air rifle which he himself had supplied at Mr Yilmaz's request.

19. By then, as the Royal Saudi Embassy had declined to provide evidence that the deceased was an "internationally protected person", it had ceased to be a Commonwealth matter and the prosecution was being conducted by the ACT Director of Public Prosecutions (ACT DPP).

20. As it transpired, this was to have seriously deleterious consequences for the prosecution. The offences available under s 8 of the Crimes (Internationally Protected Persons) Act 1976 (Cth) include an offence of committing an "attack" upon the "person or liberty" of an "internationally protected person" (s 8(2)). Even without a causal link between the "attack" and any physical injury a sentence of ten years is available. If death results, the penalty is imprisonment for life. It is not necessary to prove murder. Murder is specifically covered by s 8(1) and s 8(7)(b).

21. An agreement to confine or assault such a person (even if only by pointing a weapon to intimidate) would be a conspiracy to commit a s 8(2) offence.

22. Mr Kurt was sentenced on 22 June 2000. The proceedings were reported in detail (CT 23/6/00). Lurid details were given of the torture and harassment of Ms Yilmaz by the deceased and the threats and intimidation leading to the four deciding to come to Canberra to confront him. Mr Kurt was reported to have claimed that his role was to "protect" Ms Yilmaz while the other two entered the apartment and confronted the deceased.

23. As to the role of the other two men, Mr Kurt was said by the ACT DPP to be asserting that:

"About five to 10 minutes [after Mr Yildiz arrived, having been in the building "about two minutes"] Mr Yilmaz came out of the gate and over to the vehicle. He had the firearm in his hand and blood on the front of his shirt and jacket. Mr Yilmaz looked exhausted, his eyes were red and he was shaking badly."

"The accused [Mr Yildiz] said, "What the f--- did you do" and Mr Yilmaz said "he f------ got what he deserved".

24. That evidence would have supported a view that Mr Yildiz had left the apartment before Mr Al-Ghamdi had suffered any serious injury.

25. Mr Yilmaz was also alleged to have said, on the way back to Sydney "I made sure the f--- he was dead. I cut his throat from one end to the other and I stabbed him. The c--- wouldn't die".

26. Mr Kurt was sentenced by Crispin J, as reported on 24 June 2000 (CT), to two years imprisonment, with a non-parole period of 12 months, backdated by three months for time spent in custody on remand.

27. This was only a month before the trial of the other three for murder.

28. On 12 July 2000 (DT) there was a report that counsel for the accused, Mr Yilmaz, had told a directions hearing (before me) that his client would be relying on "automatism" and was seeking trial by judge alone. (The latter was not possible as, a date for hearing having already been allocated, s 68B of the Supreme Court Act 1933 (ACT) precluded that option.)

29. The first day of the trial was taken up with legal argument which was not reported.

30. The trial, which concluded with the acquittal of the three accused, both of murder and manslaughter, was extensively reported. That decision was made by a jury of 12 on Friday 11 August 2000, after deliberation for five and a half hours.

31. There were allegations, reported in The Canberra Times during the trial:

* That the Crown alleged the 4 had intended to kill or seriously injure the deceased.

* That Mr Kurt would assert, in his evidence, that:

s "They had decided to "have a chat with the bloke, tell him to back off, if he doesn't listen, beat the shit out of him".

s There was production of the air rifle by Mr Yilmaz, which the Crown asserted supported the inference that serious injury that might lead to death was intended.

s That Mr Yilmaz had told the other 3, in the carpark the deceased "got what he deserved."

s That Mr Yildiz told Mr Kurt he had only "laid into" the deceased.

s That Mr Yilmaz had reacted to Ms Moussa's account of her torture and abuse by the deceased by falling on a bed, crying and saying "I'm going to kill the prick".

32. Much of the publicity given to the trial also featured allegations, unchallenged by the Crown, that the deceased had been a violent drunk who had tortured, assaulted and abused Ms Moussa and, after their separation, had threatened her, her family and Mr Yilmaz, with death and had been continuously harassing her. His strange behaviour with women and his obsession with sex was also publicised. He was reported as asserting that he could get away with any conduct, however violent or unlawful, because he was a diplomat.

33. Whilst some evidence of a "confession" allegedly made by Mr Yilmaz to a fellow inmate was reported, the terms of the report made it clear that that evidence lacked any credibility.

34. The report of 9 August 2000 (CT) of Mr Yilmaz's evidence included the following material:

* Mr Yilmaz had intended no serious physical harm to the deceased when he and the other three attended to gain entry to the deceased's flat.

* Ms Moussa was admitted to the flat and the door closed behind her so that none of the three men could enter it.

* There were loud screams apparently emitted by Ms Moussa before the door was opened and she rushed out.

* Mr Yilmaz entered the flat to be confronted by the deceased waving a large knife in a threatening manner.

* Mr Yilmaz feared the deceased was about to kill him.

* Mr Yilmaz remembered nothing more until he was in the car travelling to Sydney (and the recollection was patchy) until he woke next morning.

* Mr Yilmaz stated that he had a history of "anxiety attacks".

* He said that he was later told by Mr Kurt that "You are responsible. You killed him. You struggled with him. You stabbed him over and over again".

* He said that he had been discharged from the Turkish army as "psychologically unfit to carry firearms" when he attacked a sergeant as a result of some kind of mental breakdown.

* Since killing two people in a military confrontation he had suffered nightmares about it and about his wife's torture by Mr Al-Ghamdi.

* He experienced another nightmare where a baby (which he presumed to be his) had called him "murderer".

35. There was uncontested psychiatric evidence that it was likely that, at the time he was confronting Mr Al-Ghamdi, Mr Yilmaz, given his personal and medical history, had gone into a state of non-insane automatism where his mind was dissociated from his acts. Whilst that evidence was not directly reported in The Canberra Times it was referred to in reports of counsel's addresses. "Non-insane automatism" was reported as meaning Mr Yilmaz's "will did not control his actions".

36. The Crown address was presented (CT 11/8/00) as relying on Mr Kurt who was reported as being described by Mr Purnell SC, in his address on behalf of Mr Yilmaz, as "a serial liar".

37. In fact, once the Crown had failed to adduce any evidence directly contradicting Mr Yilmaz's account, it could only have succeeded if the jury had accepted Mr Kurt's evidence as to Mr Yilmaz's statements to him and taken them as inconsistent with the claim of automatism. Certainly, the evidence of an alleged "confession" by the "gaol-house informer" did not add any lustre to the Crown case.

38. The conclusion for present purposes is twofold. First, the pre-trial publicity clearly did not prejudice the previous jury panel against the accused. Second, the publicity up to, and including, the acquittal of the accused has not been so adverse as to prejudice any future jury asked to consider the present indictment. Indeed, if anything, the publicity, on balance, has been more prejudicial to the Crown case than that of the accused.

39. However, the accused contend that publicity subsequent to the trial has conveyed the impression that, instead of being a justifiable acquittal, the result of the trial was that the accused had "got away with murder" and should be convicted of something in relation to the death of Mr Al-Ghamdi, even an apparently incongruous charge of aggravated burglary.

40. There are a number of strands to that subsequent publicity. The first is that the Crown was considering an appeal, presumably either because Mutlu Yildiz's offer to plead guilty to manslaughter had been declined or that some evidence had been ruled inadmissible. The answer to that suggestion is that the publicity also included reports that no appeal was ever undertaken. Further, a moment's reflection would have led the reader to conclude that neither of the supposed bases for an appeal were sustainable. Not even Mr Yildiz's counsel could suggest any basis for his plea of guilty to manslaughter and the rejected evidence was not only peripheral but, on balance, the rejection of it probably assisted the Crown case, at least in the case of the second "gaol-house informer".

41. It is true that some of the publicity mis-stated some of the facts of the case. The report of 13 August 2000, The Canberra Times, for example, stated that the deceased:

". . . died shortly after four people burst into his Kingston apartment about 1am on October 13, 1998. By the time those people had left, Mr Al-Ghamdi had been stabbed 36 times, his throat had been cut from ear to ear twice, and an air-rifle pellet had been shot into the back of his head as an apparent coup de grace."

42. It appeared, on the Crown case, that only Mr Yilmaz and Mr Yildiz had "burst" into the apartment. It was unlikely, on Mr Kurt's account, that Mr Yildiz played any part in the infliction of the wounds suffered by the deceased. On the account offered by Mr Yilmaz at trial, it could not be said who of the three men, alone or in concert, inflicted the wounds suffered by Mr Al-Ghamdi. Mr Yilmaz's last impression, when he entered the apartment, was of seeing, as The Canberra Times reported:

". . . Mr Al-Ghamdi red-faced, staring at him, screaming and waving a knife. That was the last thing he remembered."

43. It is true that later reports of police and politicians' reaction to the verdicts was prejudicial. Mr Humphries, then Attorney-General, was reported to have said "important evidence had been excluded during the trial" (CT 13/8/00). Police sources, it was said, "were devastated". They questioned the "deal" Mr Kurt had done with the prosecution. They, and Mr Stanhope (then Leader of the Opposition, currently Attorney-General), were reported as complaining about "the justice system".

44. In truth, of course, no significant evidence had been excluded and the result, given the way the prosecution and defence presented the case, was entirely understandable.

45. In fact, those criticisms were answered and the answer reported in full in the same edition of the same newspaper.

46. It is true that a third article in the same edition reported an offer by Mr Yilmaz to "sell his story". However, that article did not suggest any doubt as to the correctness of the jury's verdict, whatever it might have conveyed about Mr Yilmaz's view of the newsworthiness of his story.

47. In a Sun Herald article the same day, much the same information is repeated. A statement, is made:

"ACT Attorney-General Gary Humphries said yesterday he was surprised at the jury's verdict, which effectively found no-one guilty of the killing."

48. Of course, the jury's verdict found no such thing. The verdict was not guilty of murder or manslaughter. Mr Yilmaz did not deny that he or such of his companion(s) who had entered the unit with him had killed Mr Al-Ghamdi. He denied responsibility on the basis of a reasonable hypothesis that he was in a state of automatism at the time and claimed to have no positive recollection of what had occurred. He also raised circumstances from which self-defence could be inferred, either on his own part or that of one or both of the other two men. The balance of the article refers to those matters.

49. Of more concern, perhaps, was an article in The Canberra Times on 14 August 2000 by Mr Peter Clack. It said:

"The acquittal of three people of the murder of Saudi Arabian diplomat, Abdullah Al-Ghamdi, has provoked dismay among police involved in the lengthy murder investigation, and calls by the police association for an appeal. For more than a year, as many as 50 Australian Federal Police investigators have gathered evidence over the first murder of a diplomat in Canberra. Some of the police and their families said their personal lives had been put on hold, and now they felt it had been for nothing.

`We have given away a whole year of our lives,' one officer said. `It would have cost more than $1 million, but it has cost us much more than money. We have had to put up with internal dramas and marriage breakdowns.

People worked tirelessly.' The investigation began when an embassy employee found Mr Al-Ghamdi's body in a pool of blood inside his Kingston apartment on October 13, 1998. He had been stabbed 36 times, shot in the neck with an air rifle pellet and his throat had been cut twice.

Police had worked nights and weekends for months. Some of the young police working on the case had been devastated by the result. An officer said significant evidence had been excluded because of its potential to prejudice the defence cases for the other co-accused.

`It barred almost everything ...

You fight your way through and get there in the end to have this happen.' The Australian Federal Police Association has criticised the exclusion of crucial evidence. The association's vice-president of community operations, Allen Le Lievre, said the acquittals had come as a tremendous blow.

`Our members did a lot of hard work, they did the hard yards to bring these people to justice, and natural justice should prevail.' A jury found the three accused, Riza Yilmaz, 29, his wife Melissa Moussa, 23, and their friend, Mutlu Yildiz, 26, not guilty of murder or manslaughter. They walked free from the ACT Supreme Court on Friday and the next day offered to sell their story to the highest bidder.

Issues raised by Mr Le Lievre included how the three accused could be set free when another accused person, Murat Kurt, was serving a two-year sentence after pleading guilty to being an accessory after the fact, a deal he did with the prosecution in return for a reduced sentence. At one stage, Mr Yildiz had pleaded guilty to manslaughter but Justice Terence Higgins rejected his plea as `premature'. Mr Le Lievre said that at the very least an appeal should be considered.

`There was well and truly sufficient evidence,' he said. He said the outcome would leave `question marks' in the minds of others in the diplomatic community about Australia's judicial system."

50. That message, it is true, did include an attack on the jury's verdict attributed to Mr Le Lievre. However, it was also a patently ill-informed assessment. I have already noted that the "excluded evidence" was hardly "crucial" to the case. Further, the jury could have been in no doubt that the careful police investigation had identified correctly the group responsible for the death of Mr Al-Ghamdi. They could, however, only narrow down the persons responsible to Mr Yilmaz and/or Mr Yildiz provided Mr Kurt had been accepted as truthful. If, contrary to the Crown case, the jury rejected Mr Kurt's evidence that he had gone to the car park whilst Mr Yilmaz entered the apartment followed by Mr Yildiz, he could be added to the list of persons who could have entered the unit after Ms Moussa had fled from it. That she had so fled seemed supported by both sides. Even so, the jury verdict was perfectly consistent with a reasonable doubt as to whether, even assuming he alone inflicted the wounds upon the deceased, Mr Yilmaz had acted in a state of dissociation, as the uncontradicted medical evidence suggested was a reasonable hypothesis. Even if the jury was satisfied that Mr Yildiz had assisted the accused Mr Yilmaz in stabbing the deceased, it could not be ruled out that Mr Yildiz had done so only in self-defence (or defence of Mr Yilmaz), any excessive force being the result of Mr Yilmaz's dissociated acts.

51. On no version of the facts was Ms Moussa a participant in any actions against the deceased beyond the plan deposed to by Mr Kurt to confront and intimidate the deceased to persuade him to cease his threats to and harassment of her (and others).

52. The evidence not admitted and the reasons for that non-admission were surveyed in detail in another article (CT 15/8/00) by Mr David McLennan. It was, in my view, a fair and accurate report of that evidence and the reasons for its rejection or non-availability. It would have been perceived by a fair-minded reader as significantly qualifying Mr Le Lievre's reported view.

53. Further balance was injected by another article (CT 16/8/00) by Ms Liz Armitage, defending the jury decision. A follow-up article (CT 19/8/00) in greater depth by Mr McLennan engendered further balance.

54. A statement by the solicitor for the accused, Mr Yilmaz, was also published on 20 August 2000 in The Canberra Times.

55. Despite reports raising the possibility of appeals to correct any legal error on the part of the trial judge (that is, me) no such appeal ever eventuated.

56. During 2001, The Canberra Times, in particular, published articles (31/08/00, 01/04/01, 15/4/01, 26/8/01) flagging the possibility of charges less than murder or manslaughter, that is, aggravated burglary, being proffered.

57. It was reported on 7 October 2001 (CT) that the DPP was considering further charges. On 19 October 2001 (CT) it was reported that charges of aggravated burglary had been laid. That was accurate in the sense that a fresh indictment alleging such offences had been prepared and filed.

58. It is true that the publicity accorded the accused since their acquittal has been sustained and frequent. However, it has not been uniformly adverse.

59. The suggestion of the defence appears to be that, because some potential jurors may have formed a view that the accused had "got away with murder", they might take the view that they should be punished upon another pretext, that is, burglary, even if that offence had not been sufficiently proved.

60. Mr Purnell, for Mr Yilmaz, submitted that the unfair prejudice engendered by the publicity referred to should be deemed "irreparable".

61. He sought permission, in the first instance, to have a survey of potential jurors conducted to determine the nature and extent in that population of recollections of the accused and their part in Mr Al-Ghamdi's death.

62. Evidence of the results of surveys and of opinion polls has often been rejected on the basis that it offends the hearsay rule - see Hoban's Glynde Pty Ltd v Firle Hotel Pty Ltd (1973) 4 SASR 503 (FC). On the other hand, in Customglass Boats Ltd v Salthouse Brothers Ltd [1976] 1 NZLR 36, Mahon J admitted evidence of a market survey result on the basis that it was tendered to prove the fact of the responses as opposed to the truth of those responses.

63. The admissibility of such evidence was considered in Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313, 358-365 (Lockhart, Wilcox and Gummow JJ). The case concerned whether a proposed acquisition of shares would allow Arnotts to impermissibly dominate the market. Their Honours said, at 363:

"We have already indicated our opinion that Australian law should follow the American lead in acknowledging that market survey evidence may play a useful role in cases such as the present. In so doing, we do not mean to suggest that survey evidence will always, or even usually, be decisive. It will be merely one element in the overall picture, its importance varying from one case to another [reference is made to an article at (1990) 80 Trademark Reporter 71]. But, for reasons which this article emphasises, it is also important to follow the American insistence upon proof of the proper conduct and form of the survey."

64. See also Interlego AG v Croner Trading Pty Limited [1992] FCA 624; (1992) 39 FCR 348, 389-990 per Gummow J, where it was said:

"Survey evidence as to an issue will only be admissible if testimonial evidence by the persons surveyed as to the same effect would be admissible. So, for example, opinion evidence which would be inadmissible if directly tendered, would not be admissible by virtue of the fact that it was expressed in terms of responses to a survey."

65. It does not seem to me that these comments have been rendered redundant by ss 77-80 of the Evidence Act 1995 (Cth). Even though the "ultimate issue" rule has been revoked (see s 80), an opinion as to the "ultimate issue" would be hard pressed to survive s 135 (lack of sufficient probative value).

66. In Daniel v Western Australia [2000] FCA 858; 178 ALR 542, evidence was admitted from an anthropologist, though based on hearsay representations made by Aboriginal people. The evidence was "relevant" (s 55) and so admissible under s 56. It was not excluded by the hearsay rule (s 59) being deemed admissible for non-hearsay purposes (s 60). The distinction observed by R D Nicholson J in that case is illustrated at 548:

"In Milirrpum v Nabalco Pty Ltd (1970) 17 FLR 141 at 161 Blackburn J held it was not correct to apply the hearsay rule so as to exclude evidence from an anthropologist in the form of a proposition of anthropology - a conclusion which has significance in that field of discourse. He said it could not be contended - and was not - that the anthropologists could be allowed to give evidence in the form: Munggurrawuy told me that this was Gumatj land." He continued:

"But in my opinion it is permissible for an anthropologist to give evidence in the form: "I have studied the social organisation of these aboriginals. This study includes observing their behaviour; talking to them; reading the published work of other experts; applying principles of analysis and verification which are accepted as valid in the general field of anthropology. I express the opinion as an expert that proposition X is true of their social organisation." In my opinion such evidence is not rendered inadmissible by the fact that it is based partly on statements made to the expert by the Aboriginals.""

67. By analogy, opinions of a market researcher, based on survey material, is not automatically to be excluded because it is based on a collation of hearsay statements but it is clear that the methodology and reliability of the survey would need expert verification. Further, the conclusions to be drawn from the survey, as Gummow J noted in Interlego AG, must be such as would be admissible if each respondent gave direct evidence of it.

68. In the present case, the question is the current prejudicial effect of past adverse publicity. The fact that some persons, who may or may not be jurors in due course, would be prejudiced against these accused is not probative of a proposition that persons who are, ultimately, empanelled as jurors will be so prejudiced nor that any such prejudice as they might have will not be dispelled in the process of the trial, including relevant directions.

69. Indeed, I am fortified in an optimistic view of the capacity of jurors to resist pre-trial publicity by a recent study "Managing Prejudicial Publicity" (Chesterman, M, Chan, J and Hampston, S, Justice Research Centre, Law and Justice Foundation of NSW, February 2001) which was a research project of the University of New South Wales, the Justice Research Centre and the Law and Justice Foundation of New South Wales.

70. In any event, it seems to me that, given that most of the publicity concerning the accused is likely to be only vaguely recalled, the chances of jurors relying on vague recollection rather than the evidence in the case and the directions of the trial judge is minimal. The effect of conducting a survey is likely to be that some members of the jury panel, directly or indirectly, will be reminded of the adverse publicity, perhaps in a manner suggesting that they ought to be prejudiced against the accused. It is akin to the process sometimes referred to as "push polling".

71. Thus, the proposed survey, even if it could produce relevantly probative information, would carry with it a risk that it would create or support a negative attitude to the accused not otherwise in existence. The questions asked would, necessarily, be "cryptic" and, on their face, suggestive that there should be a negative attitude to the accused without explaining the basis for it.

72. Survey evidence of the kind foreshadowed here was considered in Bush v The Queen [1993] FCA 361; (1993) 43 FCR 549. In that matter, a survey, professionally conducted, had asked respondents, potential jury panel members, questions designed to elicit their recollections of a previous conviction (five years before) of the appellant for the homicide of his first wife. He had been charged with the attempted murder of his second wife.

73. Davies J described the survey as "misconceived". At 551-2, his Honour said:

"The first two questions mentioned the murder [scil - the actual offence found proved was "manslaughter"] of Debra Bush by her husband and the third question asked, "If that husband were to be charged with a second offence . . ." (the emphasis is mine). This question expressed the very connection which it was desirable to keep from the jury and which a member of the jury, if uninstructed, would have been unlikely to have made. The survey therefore had a tendency of its own to interfere with the due administration of justice."

". . . would be conducted only with the express approval of and subject to the directions of the judge appointed to conduct the trial."

75. Thus, it was proper for those representing the accused, rather than conducting such a survey without the knowledge or approval of the Court, to seek permission to do so.

76. In the same case, Drummond J (with whom Miles J concurred) pointed out that adverse media publicity would warrant a general challenge to the entire panel only in "exceptional cases". His Honour allowed the possibility, at 555, that:

"If a properly conducted and properly proved survey report shows that, for all practical purposes, every member of the panel is likely to be prejudiced against an accused, that by itself would provide a sufficient foundation for challenging each member of the panel for cause. But it would be an exceptional case to have survey evidence that went so far as to establish that."

77. Mason CJ and Toohey J stated in R v Glennon [1992] HCA 16; (1992) 173 CLR 592, at 603:

"The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence. As Toohey J observed in Hinch [v Attorney-General (Vic) (No 2) [1987] HCA 56; (1987) 164 CLR 15 at 74], in the past too little weight may have been given to the capacity of jurors to assess critically what they see and hear and their ability to reach their decisions by reference to the evidence before them. In Murphy v. The Queen [(1989) [1989] HCA 28; 167 CLR 94] we stated [at 99]:

"But it is misleading to think that, because a juror has heard something of the circumstances giving rise to the trial, the accused has lost the opportunity of an indifferent jury . . ."

To conclude otherwise is to underrate the integrity of the system of trial by jury and the effect on the jury of the instructions given by the trial judge."

78. In the present case, the totality of the previous publicity, placed in a proper legal context, does not support an assumption that the publicity has, in fact, been unfairly prejudicial, nor that some recollection of it in the minds of some potential jurors would undermine the fair trial of these accused. That is not to deny that some members of the jury panel are likely to have some recollection of the prior publicity given to the matter. However, it does not follow that such recollections will create unfair prejudice against these accused. Indeed, the more complete that recollection, the more likely, in my view, that there will be no unfair prejudice to the accused. The proposed survey would be unlikely to yield any useful result. Further, it carries with it some risk of creating prejudice rather than merely revealing the extent of it.

79. For these reasons, I dismissed the application to carry out the proposed survey and to stay the proceedings.

80. I will hear the parties as to the extent, if any, to which the publication of these reasons should be restricted.

I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

Solicitor for M Yildiz: Sheila Foliaki-Singh & Associates

Solicitor for the Crown: ACT Director of Public Prosecutions