According priority to different trials

While the content of the right to a fair trial is elastic and nebulous at the margins, it is surprising that it includes an obligation to protect an accused from the possibility that he may make statements in one trial that undermine a defence in another. And yet, that seems to be what the Victorian Court of Appeal has just decided.
In Naidu v R, Maxwell P upheld an appeal on the basis of a failure to stay a rape trial until after a pending murder trial. His Honour said:

28 This uncontested evidence establishes the following matters:

• defence counsel had real concerns that the applicant might be prejudiced in the murder trial if he were to give evidence in the rape trial;
• but for those concerns, it was likely that the applicant would have given evidence in his rape trial, and counsel had advised him to do so; and
• the refusal of the adjournment application foreclosed the possibility of the applicant giving evidence in the rape trial.

29 It follows, in my view, that the applicant was denied a fair trial. By reason of an extraneous matter – the pending murder proceeding – he was denied the free exercise of his right to give evidence (or to decline to do so) in the rape trial.

Weinberg JA and Ross AJA, in a thoroughly unenthusiastic concurrence, said:

32 We should say that we have come to that conclusion only with some reluctance and after anxious consideration. It must be a wholly exceptional case in which a conviction is set aside where an accused, acting upon the advice of counsel, elects not to give evidence in his own defence but then submits on appeal that by acting on that advice, he was in some way denied a fair trial.
...
47 It must be said that the present case is unusual in many respects. This Court will be extremely loathe to set aside a conviction on the basis of a trial judge’s erroneous failure to grant an adjournment. Whether or not a trial should be adjourned is essentially a matter for the exercise of judicial discretion. The decision to refuse an adjournment will not lightly be overturned on appeal. Nonetheless, as the President’s analysis shows, there have been examples in the past where the failure to grant an adjournment has been held to have led to a miscarriage of justice. We have come to the conclusion that this, too, is such a case.

This case raises some very difficult issues about respect for the interests of victims of crime (I'll deliberately avoid talking about the vexed notion of victim's "rights"), deference to trial judges and the inherently vague notion of when a defence is prejudiced.

Nature of the prejudice
It is clear that Mr Naidu is facing some very serious accusations. On the prosecution's case, he set fire to his second wife, raped the women who was to become his third wife a few days after she had major surgery and may have been connected to another death in Fiji. On that case, there would be clear risks in the accused running any defence that involves a positive assertion of good character. However, in stay applications, defence counsel only expressed concern that:

... at this stage it’s impossible to predict all of the evidence that might fall, all of the cross-examination that might be put or whether the accused himself might go into the witness box although, as I say, he does that really at his peril in this type of case.

It seems that it was not until the hearing of the appeal that the risk of prejudice was properly identified, with trial counsel filing an affidavit where he said:

The reason that I applied to adjourn the rape trial until after the hearing of the murder trial was that I feared that evidence that the applicant might give in the rape trial could prejudice him in the murder trial by dint of the commonality referred to above. Such evidence might, for instance, form a basis for cross-examination of the applicant by the Crown in the later murder trial that focussed on inconsistencies between evidence the applicant gave in the rape trial and evidence he gave at the murder trial. I was concerned that were the applicant to give evidence in the rape trial he might compromise the exercise of his right to silence in the murder.
Further, I feared also that if the applicant gave evidence in the rape trial and he, against advice, placed his character in issue he would leave himself open to cross-examination on allegations of domestic violence arising out of the murder brief concerning other women (in particular, a deceased woman in Fiji and the deceased the subject of the murder charge) thereby, again, potentially setting up inconsistencies with evidence that he might later give at the murder trial.

Maxwell P's reasoning, that the trial miscarried because the accused had real concerns that evidence he might give might compromise his defence in the pending murder trial and that this deprived him of the free exercise of the right to give evidence, does, it seems to me, involve a degree of speculation. Throughout the pre-trial proceedings and through Maxwell P's judgment, judges consistently expressed scepticism about the Crown's view that evidence of the rape was relevant to the murder trial. Presumably, it should also follow that evidence of the murder is unlikely to be relevant in the rape trial. In any event, the affidavit is based on the speculative possibility that the accused might give evidence that prejudices his defence in the murder trial. As Justices Weinberg and Ross state, the advice of counsel was:

undoubtedly very conservative, and probably unnecessarily so. In truth there was very little risk, it seems to us, of the applicant doing harm to his defence to the charge of murder by anything that he might say in evidence in answer to the charge of rape.

Defence counsel's reference to the potential for inconsistency is also instructive. It seems strange that an accused must be protected from the risk of giving inconsistent evidence in two proceedings. To me, the accused is the one who is responsible for the words that come out of his mouth and, if he introduces inconsistency in his evidence in two trials, that is a matter that legitimately may reflect on his credibility. Finally, all of this overlooks the possibility that the trial judge in the murder trial could, if there was any relevant unfairness, exclude the evidence tendered in the previous trial under s137 of the UEA. The "unfair prejudice" being the fact that, but for the order in which the trials were held, the evidence would not have been obtained and the Crown should not derive a forensic benefit from those circumstances.

Interest of the complainant
The decision also seems to place no weight on the interest of the complainant in the speedy resolution of proceedings. While there is undoubtedly a danger when trying to balance a complainant's interests (and presumably the community's interest) in the resolution of criminal proceedings against an accused's right to a fair trial, it seems overly simplistic to say that the content of the fair trial right is insufficiently flexible to accommodate both considerations. Related to this issue, I suspect that the comparison Maxwell P makes with concurrent civil proceedings is a false parallel. Concurrent civil proceedings raise the same issues and so it is almost certain that the same defence will apply. Here, there was only a speculative risk that the accused would be compelled to disclose his defence in the murder trial while being cross-examine in the rape trial.

Conclusion
Overall, this decision places very little weight on the considered opinion of two senior County Court judges (the Chief Judge and Judge Wilmoth) that completing the rape trial would be unlikely to prejudice the later murder trial. Further, without knowing the outcome of the murder trial, the rape conviction has been set aside and so the prejudice remains speculative. I cannot help but think that this case will invite practitioners to remain vague about the potential for an accused to suffer prejudice, which affects not only issues concerning stay applications, but could also affect the operation of s137 of the Evidence Act, a provision which still has judges emphasising that it only applies to unfair prejudice.