Regina v MAK; Regina v RS; Regina v MSK; Regina v MRK; Regina v MMK

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

70002/03 - REGINA v MAK 70200/03 - REGINA v RS 70201/03 - REGINA v MSK 70202/03 - REGINA v MRK 70203/03 - REGINA v MMK

1 HIS HONOUR: There is fixed to commence on Monday next before this Court the joint trial of five accused persons. The proposed indictment, a copy of which has been helpfully made available by the Crown, contains 11 counts. Each count is charged against all five accused jointly. Each count refers to an offence said to have been committed by the five accused on 28 July 2002 at Ashfield. The complainant named in counts 1 through 5 is a young woman to whom I will refer only as S; and the complainant named in counts 6 through 11 is a young woman to whom I will refer only as G. 2 Of the five counts connected with the complainant S counts 1, 2 and 3 charge offences of aggravated sexual intercourse in company contrary to s 61 (JA)(c)(ii) of the Crimes Act 1900 (NSW). Any such charge attracts upon conviction a statutory maximum penalty of imprisonment for the term of the offender's natural life. 3 Count 4 charges an offence of aggravated sexual assault in company contrary to s 61 (JA)(c)(iii) of the Crimes Act. Such an offence attracts upon conviction the statutory maximum penalty previously mentioned.

4 Count 5 charges an offence of aggravated kidnapping contrary to s 86(2) of the Crimes Act. Such an offence attracts upon conviction a statutory maximum penalty of imprisonment for 20 years. 5 Of the 6 counts connected with the complainant G, each of counts 6, 7 and 8 alleges an offence in contravention of s 61 (JA)(c)(ii) of the Crimes Act. Each of counts 9 and 10 alleges an offence in contravention of s 61 (JA)(c)(iii) of that Act, and count 11 alleges an offence in contravtion of s 86 (1) of that Act, this last offence attracting upon conviction a statutory maximum penalty of imprisonment for 14 years. 6 A Crown case statement also has been helpfully made available to the Court in connection with the present applications. It outlines, put very simply, an alleged unlawful common enterprise to which all five accused are said to have been parties. The objective of the enterprise is said to have been that of enticing the two complainants to certain premises and of detaining them there for sexual gratification. 7 Each of the alleged sexual assaults charged in the indictment, by whomsoever of the five accused actually committed, is said to have been an incident in the carrying out of the alleged joint criminal enterprise so as to make all five of the accused liable for the particular offence. 8 Of the five accused, three are represented by counsel. The remaining two accused are unrepresented. They have explained on previous occasions, and again this morning, why it is that they persist in their intended defence of themselves without legal representation or assistance at the forthcoming trial. This Court is in no position to say that they are not genuine according to their respective lights in what they have had to say in that connection. 9 Certainly, the Court is not entitled to treat them to their disadvantage by way of signalling in any fashion frustration or displeasure of any other kind deriving from the persistent refusal of the two particular accused to accept the persistent advice of the Court, given hitherto, that it would be very much in their own best interests to obtain proper professional legal representation, if not for the entirety of the trial, then at the very least to the extent of ensuring that they are properly seized of the matters upon which the Court is now ruling. 10 Each of the three represented co-accused has made an application, which the Court has heard this morning, for a separate trial: that is to say, for a joint trial of the three of them and for a separate joint trial of the two unrepresented accused. The two unrepresented accused take the stance that they do not wish the trial to be severed in that way. What they have had to put to the Court by way of submission or comment or explanation otherwise in connection with that stance has been recorded and is available for any necessary future reference. 11 Before the Court as well are some other and different applications of the two unrepresented accused. Those applications have to be spelt out of two manuscript documents. One of those documents comprises 11 pages and is marked for identification MSK 2. The other comprises 22 pages and is marked for identification MSK 6. I shall examine later in this judgment the contents of those two documents and deal with what I apprehend to be the applications that they respectively make. 12 The classic context in which an application for separate trials arises is, put simply, the case of two joint accused, the case against one of whom is demonstrably strong and the case against the other of whom is demonstrably weak. Such cases will be ordered to be tried separately if it is demonstrated that there is, in the particular circumstances of the particular cases, a real risk of positive injustice should there be a joint trial, that risk lying in a reasonable perception that the strength of the one case will unjustly cancel out the weakness of the other. 13 Authorities such as Beavan, Fernando and Grondkowski are concerned with this particular kind of prospective injustice. 14 There are, however, no closed categories of prospective injustice sufficient to entail a proper order for separate trials. 15 Any demonstrated state of affairs which, if uncorrected by an order for separate trials, can be seen on a sensible and reasonable view to entail positive injustice, and especially positive injustice to an accused, will be in fact corrected by the making of an order for separate trials. 16 The present applications do not rest upon such an evidentiary analysis as is fundamental to the decisions in the examples of Bevan, Fernando and Grondkowski to which I have earlier referred. The present applications rest, rather, upon a novel and recently legislated rule of procedure in criminal trials. That novel rule is laid down by the newly enacted s 294A of the Criminal Procedure Act 1986 (NSW). 17 That section provides: "294A Arrangements for complainant in sexual offence proceedings giving evidence when accused person is unrepresented

(1) This section applies to sexual offence proceedings during which the accused person is not represented by counsel. (2) The complainant cannot be examined in chief, cross-examined or re-examined by the accused person, but may be so examined instead by a person appointed by the court. (3) The person appointed by the court is to ask the complainant only the questions that the accused person requests that person to put to the complainant. (4) Any such person, when acting in the course of an appointment under this section, must not independently give the accused person legal or other advice. (5) The court does not have a discretion to decline to appoint a person under this section, despite anything to the contrary in section 28 of the Evidence (Children) Act 1997 or any other Act or law. (6) This section applies whether or not closed-circuit television facilities or other similar technology (or alternative arrangements) are used by the complainant to give evidence. (7) If such a person is appointed in proceedings before a jury, the judge must: (a) inform the jury that it is standard procedure in such cases to appoint the person to put the questions to the complainant, and (b) warn the jury not to draw any inference adverse to the accused person or to give the evidence any greater or lesser weight because of the use of that arrangement. (8) This section extends to proceedings instituted before the commencement of this section, including proceedings that have been partly heard. (9) In this section:

Accused person , in relation to any proceedings, means the person who stands, or any of the persons who stand, charged in those proceedings with a sexual offence.

Complainant , in relation to any proceedings, means the person, or any of the persons, on whom a sexual offence with which the accused person stands charged in those proceedings is alleged to have been committed, and includes:

(a) in relation to an offence under section 91D, 91E or 91F of the Crimes Act 1900, the person under the age of 18 years who is alleged to have participated in an act of child prostitution, and

(b) in relation to an offence under section 91G of the Crimes Act 1900, the person under the age of 18 years who is alleged to have been used for pornographic purposes.

(b) an offence against section 73, 78A, 78B, 80D, 91A, 91B, 91D, 91E, 91F or 91G of the Crimes Act 1900, or

(c) an offence that includes the commission of, or an intention to commit, an offence referred to in paragraph (a) or (b), or

(d) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a), (b) or (c).

Sexual offence proceedings means proceedings in which a person stands charged with a sexual offence, whether the person stands charged with that offence alone or together with any other offence (as an additional or alternative count) and whether or not the person is liable, on the charge, to be found guilty of any other offence." 18 The present applications proceed upon the basis of an argument that the practical consequences in an unsevered trial of the new s 294A can be expected reasonably to entail, both for the represented accused and for the unrepresented accused, an unacceptable risk of real and positive injustice. In order to test that argument it will be necessary to consider in some careful detail the likely practical working out in the present trial of the new procedures. 19 Before doing that it is, I think, expedient to restate on the public record some fundamental propositions that have always been accepted hitherto as underpinning the principled doing of justice in criminal cases. For it is a sad fact of contemporary life that any case which involves an alleged group rape is apt to ignite a blaze of atavistic public rage, that rage giving rise in its turn to a frenzy of demagogy apt to sweep aside precious safeguards of personal liberty. 20 I have in mind, in particular, the following:

1. Every person who is accused of having committed any criminal offence, let alone an offence of the extreme gravity of the offences charged against these five accused, is presumed conclusively to be innocent unless and until the Crown, or other prosecuting authority proves to the satisfaction of a jury, or other prescribed tribunal of fact, that it is beyond reasonable doubt that the accused person is guilty as charged.

2. The forum in which that determination is to be made is an independent Court of Justice presided over by an independent Judge or Magistrate.

3. The method by which that forum is to proceed is that of an adversarial trial. The incidents of such a trial are well established. They are described as follows by the New South Wales Court of Criminal Appeal in R v McHardie and Danielson [1983] 2 NSWLR 733 at 739 : "It should also be observed that when the trial starts, the procedure of a normal criminal jury trial provides for the presentation of the Crown case in the presence and hearing of the accused, and includes the right of the accused to test the evidence by cross-examination, either by himself, or by his legal representative. It also includes the right to give evidence, the right to call evidence, and the right, either by himself or his counsel, to address the jury. We think it correct to describe these procedural steps as 'rights', which may or may not be exercised by the accused at his option. The non-exercise of any of the accused's rights does not vitiate the trial.

4. The law recognises that a fair trial does not entail some artificial standard of abstract perfection. As Brooking J, speaking in the Appeal Division of the Supreme Court of Victoria, points out in Jarvie and Another v the Magistrates' Court of Victoria at Brunswick and Others [1995] 1 VR 84 at 90, 91: "A fair trial according to law does not mean a perfect trial, free from possible detriment or disadvantage of any kind or degree to the accused. The possible detriment or disadvantage to which an accused may on occasions be required to submit may result from the misconduct of a third person, like the contempt in Glennon . It may result not from misconduct but from the demands made upon a system of law enforcement and criminal justice with limited resources which make it impossible to bring accused persons to trial without a measure of delay which ideally should be avoided. It may result from the rules of criminal procedure, whether the suggested disadvantage flows from the confinement of the accused in the dock or from the subjection of the accused of a trial jointly with others in a case in which a joint trial is allowed in accordance with the applicable principles. It may result from the laws of evidence and be, for example, the danger that, despite an impeccable charge on the limited use to be made of certain evidence for the prosecution, the jury will make a further and impermissible use of it; the law treats the judge's warning as meeting the danger, but can one be certain that no juror has ever failed to heed the warning? It may, as in the present case, result from the need to give effect to some principle, like that of public interest immunity, which competes with the desideratum that accused persons should not be subjected to any disadvantage in defending themselves against criminal charges".(references to authorities have been omitted) 5. At the same time the law insists that any derogation from the established rights of an accused person in connection with his defence of a criminal charge brought against him, is to be closely constrained; and is to be permitted, if at all, only after a careful and scrupulously fair balancing of those rights against what are asserted to be properly preponderant public rights and interests. 21 Oliver Wendall Holmes Jnr, later a justly celebrated Justice of the Supreme Court of the United States, once famously observed in a lecture: "The life of the law has not been logic, the life of the law has been experience". 22 Part of that experience has been the ever present need to protect personal liberty against what another celebrated justice of the Supreme Court, in this case Mr Justice Brandeis, once described as, "(I)nsidious encroachment by men of zeal, well-meaning but without understanding". 23 The safeguards of which I have been speaking are an essential aspect of resisting any such potential encroachment. 24 It is of course the case that, in the present context, Parliament is sovereign in the sense that Parliament can legislate so as to abrogate in part, or indeed altogether, any of the tried and true safeguards previously summarised. When Parliament does that, then the Courts must give dutiful effect to the expressed will of the Legislature. (I leave aside the question of constitutionality, that not being a question for this Court but for the High Court of Australia: cf Kable and the Director of Public Prosecutions (NSW) [1997] 189 CLR 51). 25 Approaching in that spirit the practical implementation in the present case of section 294A, I reason as follows: 1. I note that I cannot decline to appoint a "person" to ask vicariously the questions that the unrepresented accused would normally have been both entitled and permitted to ask for themselves. 2. I note that the section gives not the very slightest guidance or assistance as to where such a person is actually to be found; as to what qualifications, training, experience or other characteristics it is envisaged the appointed "person" should have; or as to the provision of any funding that might be required in order to secure the willing cooperation and assistance of a suitable "person". 3. Assuming that those difficulties can be overcome in some fair way, it becomes necessary to consider how the projected vicarious cross-examination is actually to be accomplished. One obvious possibility is to have the unrepresented accused write out a list of questions. It would be practicable to submit that list to the Judge in the absence of the jury so that the Judge could disallow any impermissible question or questions. The "person" could then ask the permitted questions and any responsive answer could be taken from the protected witness. 4. Those answers once in hand, it would be entirely proper for the unrepresented accused to put supplementary questions in a way that would be done, without undue and destabilising interruption, by a competent professional cross-examiner. How is that to be accomplished under the new regime? Presumably the jury has to be sent out while the unrepresented accused frames additional proposed questions; which are then vetted by the trial Judge in the absence of the jury; and which are, finally, put vicariously in the presence of the jury. And so on until the unrepresented accused have exhausted their desired, and permitted, vicarious cross-examination. 5. The procedure hypothesised in 4 above is required, without any residual judicial discretion in the matter, to be implemented with unrepresented accused who have no knowledge of the relevant law and procedure; and who are forbidden any "legal or other advice" given "independently" by the appointed "person", who, if not legally qualified, will also have in any event not a clue about the relevant law and procedure. 6. To follow a procedure of the kind previously outlined, - (and it is in my opinion the least unfair method of giving some effect to the legislative scheme), - entails necessarily, in my opinion, an unacceptable risk of positive injustice both to the unrepresented accused and to the represented accused. More particularly: (a) the contrast between the professional cross-examination conducted by counsel for the represented accused and the artificial and vicarious cross-examination conducted by a stranger appointed for, but not by, the unrepresented accused, will be immediate and stark to any intelligent juror. (b) such a juror will be understandably intrigued to know quite why it is that this lopsided procedure is being adopted. The Judge will give, of course, the explanation and the direction that are mandated respectively by subsection (7)(a) and (b). That leaves at large, of course, the valid question: Why is this artificial and lopsided contrast "standard procedure"? Commonsense suggests that there is a real and obvious risk that a juror will reason that there has to be some explanation that is discreditable to the unrepresented accused. It should be borne steadily in mind that that damage is done if only one of the 12 jurors so reacts. (c) there arises thereupon, in my opinion, an unacceptable risk that some part of that discreditable supposition will rub off, so to speak, onto the represented accused. (d) what I have said thus far assumes that the unrepresented accused will submit, more or less meekly, to the new regime. What happens, however, if they do not? What happens if, for example, they say to the jury at the first available opportunity that the law has been changed with the specific purpose of altering their normal rights to defend themselves, (which is undoubtedly true); that they cannot find any trustworthy legal representation; that they will not have some stranger foisted on them in a trial where they risk life imprisonment if convicted; and that therefore they cannot defend themselves by asking questions. Any such intervention could easily require: (i) the severing at that stage of the joint trial of the cases of the two unrepresented accused or (ii) the discharge of the jury upon the basis that the atmosphere of the trial has become so confrontational and so controversial as to be a positive impediment to the fair trial of, in particular, the three represented accused.

7. I am strengthened in the views that I have thus far expressed by reason of the following opinion of the majority of the Law Reform Commission in the report upon which the new section 294A is purportedly based. The report says at paragraph 3.72: "Accused persons who are prevented from cross-examining complainants in person will not be unfairly disadvantaged. They will still be given the opportunity to present their case and test the evidence against them. By contrast, preventing cross-examination in person by unrepresented accused would be of significant benefit to both the well-being and testimony of complainants, and to the perceived fairness of the trial process. If complainants are able to give their evidence more effectively, the prohibition is in the interests of justice. It is the view of the Commission that the benefit to complainants and to the community in general outweighs any perceived detriment to accused persons. This view essentially stems from the conclusion that, if cross-examination can be provided by a legal practitioner , the potential or perceived advantage of personal confrontation sought by an accused who chooses to be unrepresented is neither a necessary nor a desirable element of the administration of justice." (Emphasis added) I should say, so that there will be no misunderstanding about the matter, that I have not quoted that paragraph as any indication that I agree with all that it says. My purpose has been, rather, to point out that even the majority of the Law Reform Commission took it for granted that if an unrepresented accused was to be stripped peremptorily of what has hitherto been regarded as a fundamental incident of his right to defend himself in a fair trial, then at the very least he should have qualified and experienced legal professional assistance as a proper and fair correction of the imbalance and unfairness that might, and probably would, otherwise result.

8. To the whole of the foregoing analysis is to be added the consideration that even were the five accused to be legally represented, the trial would be a very difficult trial to despatch fairly and efficiently. The emotional temperature will be, inevitably, high. A trial that raises issues of joint criminal enterprise; of identification; of consent or of a known lack of consent; and of out-of-Court statements; to go no further, bristles inevitably with difficult legal, factual and procedural points. To ensure a fair trial as a joint trial of five accused, would be a considerable task even with the assistance of competent professional representation for all five accused. To ensure a fair trial having two unrepresented accused, would make the task exponentially more complex and difficult. To ensure a fair trial with two unrepresented accused who are fettered by the new section 294A, would be, in practical terms, next to impossible.

9. What has been said in paragraph 8 above seems to me to be re-inforced by what was put latterly to the Court by each of the two unrepresented accused. Clearly, they have a perception that if they are tried jointly with the three represented accused they will be able, as they themselves have put the point, to help the three co-accused. Anybody with any experience of the practical conduct of a joint criminal trial will understand immediately that such a prospect is almost a cast-iron guarantee of a mis-trial. I mean no disrespect to either of the two unrepresented accused when I observe that in my view they are, understandably as must be at once acknowledged, wholly at sea so far as concerns the relevant law, the relevant practice, the relevant procedure, that they would be required to deal with, wholly unassisted and unrepresented, in the event of an undifferentiated joint trial. I appreciate that to sever the trials does not, in some magically convenient way, resolve instantaneously all of those practical problems. But a trial in which the presiding Judge does not have to grapple with a mixture of represented and unrepresented accused offers, at least, what I might describe as a fair fighting chance of keeping that separate trial generally on track, whatever the inherent difficulties in doing so. 26 It is in the nature of things that this judgment has concentrated upon the duty of the Court to ensure for the accused, whether represented or unrepresented, a fair trial according to law. That focus does not entail that the Court has overlooked the position, and the legitimate concerns, of the two complainants. It has been a matter of anxious concern to this Court that the severing of the trials of the two unrepresented accused must bring with it a need to call twice rather than once the evidence of the complainants. That is not something to be done lightly. Whether it should be done at all is a matter for prudent judgment balancing fairly the interests of the complainants and of the accused. There is no way, and one might as well be frank about saying so, of striking that balance so as to satisfy everybody and every interest. If, and insofar as, some interest has to yield, then it cannot be, and must not be, the legitimate right of the accused to a fair trial, and the legitimate interest of the rest of us in the community to see that the accused get in truth a fair trial. 27 For the whole of the foregoing reasons, I have concluded that the separate trial application should be granted; that the trial commencing on Monday next should be a joint trial of MMK, MRK and RS; and that the two unrepresented accused should be remanded in custody for trial on a day to be appointed. That latter trial should be given all practical expedition, and in that connection I would myself expect every effort to be made to bring it on back-to-back with the trial, now of the three represented co-accused, which is to commence on Monday next. There will be orders accordingly. 28 It remains to consider the applications which are conveyed however inexactly in the manuscript documents MFI MSK2 and MFI MSK6. I had understood the thrust of those documents to be conveying a wish on the part of the two unrepresented accused themselves to apply for a severed trial. That appears to have been a misconception on my part, and I need add nothing more to what I have already said about that particular matter. 29 I would understand the documents as conveying, also, applications to quash the indictment; and to stay proceedings on the indictment pending further committal proceedings. 30 I have given a deal of anxious thought to the difficult question of how best and most fairly to deal with those applications. It would be, I think, permissible simply to refuse them, upon the basis that the form in which they are made is so imprecise and so lacking in substantive supporting evidence as would entail that the applications in their present form simply could not succeed. 31 I do not wish, however, to do that, and then to find that forensic imagination in some quarter or other sees what has been done as entailing some kind of issue estoppel that would prevent the unrepresented accused from raising again, but in proper form, applications of the kind which I have described. 32 In those circumstances, I think that the fairest practical course to follow is simply to note those applications, and to stand them over for hearing at a convenient time to be appointed either at the inception of, or as I should think to be preferable in advance of, what will now be the separate trial of the two unrepresented accused. 33 Orders accordingly.

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