Muhammad Rizalman tried to halt court action against him

By Jimmy Ellingham

Muhammad Rizalman said he'd find it impossible to get a fair trial, it can now be revealed. Photo / Monique Ford
Muhammad Rizalman said he'd find it impossible to get a fair trial, it can now be revealed. Photo / Monique Ford

Muhammad Rizalman tried to halt court action against him, saying he'd find it impossible to get a fair trial, it can now be revealed.

Today's sentencing and the lifting of suppression orders mean pre-trial applications from the defence and Crown can be reported, including a bid from Rizalman for a stay of proceedings in the case against him.

His guilty plea to the indecent assault charge came only on the day the trial was due to begin.

The issue was one of several discussed at a two-day hearing in the High Court at Wellington in August.

A judgment issued by Justice Alan MacKenzie a month later was suppressed, until Justice David Collins lifted that order today.

Although the judgment can be reported, what the lawyers said at the hearings cannot be.

FAIR TRIAL CONCERNS

After it was revealed Rizalman had returned to Malaysia, Tania Billingsley applied to the court to waive her name suppression and spoke out on TV3.

This interview and other media coverage, as well as comments from politicians, including Crown ministers, meant Rizalman could not get a fair trial, his lawyer Dr Donald Stevens, QC, argued at the pre-trial hearing.

When Ms Billingsley's suppression was lifted, Judge Bruce Davidson urged her to respect Rizalman's fair-trial rights during her interview.

On TV, she talked about Rizalman leaving the country and said New Zealand's Foreign Minister Murray McCully should resign over the matter.

She criticised Prime Minister John Key and spoke about New Zealand's society normalising, trivialising and condoning rape and sexual violence.

"She agreed with the interviewer's description of her as a feminist and an activist," Justice MacKenzie's ruling says.

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TV3 also aired an interview with sexual offending victims advocate Louise Nicholas, who also spoke about this country's rape culture.

This and other media coverage portrayed Rizalman in a poor light, particularly about his departure from New Zealand, Dr Stevens argued.

He said it created a picture in the public's mind that a sexual assault had occurred and Ms Billingsley was the "victim", a term used to describe her on occasions, rather than "complainant".

"[Dr Stevens] submits that ministers of the Crown and members of parliament made widely reported comments on the case and that almost without exception their comments assumed that there had been a sexual attack."

The perception was created that an offence had been committed, that Rizalman had "fled", and he was described as a "disgraced Malaysian diplomat".

This would mean potential jurors would sympathise with Ms Billingsley's position.

Allowing the trial to go ahead would undermine the public confidence in the criminal justice system, Dr Stevens said.

He described comments from Ms Billingsley and her supporters as having "poisoned the well of justice".

Ms Billingsley also introduced a "political dimension" to the case and Dr Stevens said she was given a "makeover" when she appeared on the TV show.

Crown prosecutor Grant Burston said pre-trial publicity peaked 18 months before the hearing.

"He submits that aside from the references to the defendant fleeing, the complainant has not blackened the defendant's character," the judgment says.

Mr Burston cited other cases where there had been extensive pre-trial publicity, including Ms Nicholas' own one where high-profile policemen were acquitted of sexually abusing her.

Justice MacKenzie rejected the application to halt the trial.

"In this case, the vast majority of publicity relied on by the defendant will be almost 18 months old and all will be over 12 months old by the time of the trial," he wrote.

"The likelihood that any potential jurors would have a sufficiently detailed recollection of the content of that publicity to give rise to the risks to which the defendant refers seems remote."

Most of the media coverage was still available on the internet, but Justice MacKenzie said potential jurors could have been asked if they recalled the publicity or had recently read it.

References to Ms Billingsley as a "victim" could also be dealt with by a direction from the trial judge to jurors.

Justice MacKenzie didn't think Ms Billingsley's description of herself as an activist was a risk and said material from the TV interview could be used when questioned by Rizalman's defence.

"I do not consider that the pre-trial publicity may prejudice a fair trial, to an extent which justifies a stay," the judge said.

CHARGE DISMISSAL

Dr Stevens also applied for the assault with intent to commit sexual violation charge to be withdrawn, saying the evidence would make it impossible for a properly directed jury to find Rizalman guilty.

Justice MacKenzie, however, said the Crown evidence "clearly supports an inference that the defendant intended some form of non-consensual physical contact of a sexual nature".

"It is capable of supporting an inference that the intended sexual contact was a form of sexual connection amounting to sexual violation."

It would be up to the jury to draw that inference, or not, after they had been told not to speculate or guess.

The Crown offered no evidence on this charge.

SIMILAR BEHAVIOUR

The Crown applied to call propensity evidence, which can be done to show a previous instance of similar behaviour by someone on trial.

In this case, the Crown wanted to call evidence from a woman who was walking by herself in a small central Wellington side street the day before Ms Billingsley was indecently assaulted.

Rizalman was standing on the street corner.

As the woman walked past, he said something she couldn't hear.

He started following and the woman walked into a store, thinking he would keep walking.

But instead he looked through the shop window at her.

The woman moved to a part of the store not visible from the window, waited a few minutes and then left.

After crossing the road, she noticed a car had stopped next to her.

Rizalman was driving.

He had the window down and tried to talk to her, gesturing to her to get in the car.

The woman had earphones on and could not hear.

She crossed the road and entered a store to get away.

Dr Stevens argued this account couldn't be linked in any way to the offending against Ms Billingsley.

Justice MacKenzie ruled the woman's account could not be taken as propensity evidence but could be included as evidence about Rizalman's mental state.

That decision would have been made by the trial judge.

- NZ Herald

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