Citation: Regina v Dean Anthony Privett and Michael Privett [1999] NSWSC 1074
Court: Supreme Court of New South Wales (Criminal Division)
Date: 3 August 1999
Judge(s): Badgery-Parker AJ
Background
Two brothers, Dean Anthony Privett and Michael John Privett, were charged with the murder of Dr Peter Browne Rowland, alleged to have occurred on or about 25 June 1996 at Gundaroo. The trial was to be held at Goulburn. Dr Rowland was a medical professional active in AIDS treatment, research, and education.
Before trial, counsel for Dean Privett brought two interlocutory applications. The first sought to move the trial to a venue other than Goulburn, citing media publicity. The second sought to have Dean tried separately from his brother Michael.
The court heard both applications on 7 July 1999. Badgery-Parker AJ refused the change of venue application at the conclusion of argument and, after overnight consideration, refused the application for separate trials. This judgment sets out the reasons for both rulings.
Legal Issues
- Whether the volume and nature of print and television media coverage of the accused and the committal proceedings meant that a fair or unprejudiced trial could not be had at Goulburn, under s 577(a) of the Crimes Act 1900
- Whether, in the context of a joint trial of co-accused, the differences between the evidence against each brother were sufficient to establish that a joint trial would cause "positive injustice" warranting separate trials
Decision
Change of venue: The court noted that the applicant bore the onus of demonstrating that a fair or unprejudiced trial could not be had at Goulburn. Badgery-Parker AJ observed that while the section should be applied according to its own terms, the applicant fell well short of satisfying it. The media coverage, though extensive, was found to be restrained in tone and not inflammatory, and no significant inaccuracies were identified that might mislead the jury.
Counsel for Dean Privett conceded that most of the reported material was unlikely to come before the jury beyond what the evidence would establish in any event. The court accepted that some television material highlighting Dr Rowland's personal qualities and community contributions had the potential to generate sympathy, but was satisfied that standard judicial directions to the jury to disregard media reports would adequately address any residual risk of prejudice.
Separate trials: The court affirmed the established starting point that co-offenders alleged to have participated in the same crime should ordinarily be tried together, subject to the overriding qualification that a joint trial must not cause "positive injustice." Drawing on the principles set out by Hunt J in Middis & Ors, the court focused on whether the evidence against one accused was significantly weaker than or significantly different from that against the other, and whether any prejudicial evidence that crossed over was capable of being managed by jury directions.
Badgery-Parker AJ was not persuaded that the Crown case against Michael was significantly stronger than that against Dean. The evidence specific to Michael that differed from the case against Dean consisted of two discrete recorded interviews, a body of evidence that could be clearly and easily identified for the jury. The court concluded that appropriate jury directions could adequately address the risk of prejudice, and was not satisfied that there was a real risk the weaker Crown case against Dean would be made immeasurably stronger by reason of that material.
Orders Made
- Application for change of venue refused
- Application for separate trials refused
Key Takeaways
- Section 577(a) of the Crimes Act 1900 requires an applicant to demonstrate that a fair or unprejudiced trial cannot otherwise be had; Badgery-Parker AJ expressed reservations about reading into the section the additional requirement of an "exceptional case" articulated in Dorrington, finding that the section should be applied according to its own terms.
- Restrained and accurate media coverage, without inflammatory content or significant inaccuracy, will generally be insufficient to satisfy the test for a change of venue, particularly where standard jury directions can address residual prejudice.
- The principles from Hunt J's judgment in Middis & Ors continue to govern applications for separate trials, requiring consideration of whether the evidence against one accused is significantly weaker or different, and whether any prejudicial spillover can be cured by jury directions.
- Co-accused are presumed to be tried together, and a joint trial will not be severed merely because the evidence against the accused differs; "positive injustice" must be established.
- Where prejudicial evidence specific to one accused consists of a discrete and clearly identifiable body of material, such as recorded police interviews, the court will more readily conclude that jury directions can provide sufficient protection against unfair spillover.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 577
Cases:
- Dorrington (1969) 1 NSWR 381
- Grondkowski [1946] 1 KB 369
- Oliver (1984) 57 ALR 543
- Farrell and Cotton (1990) 48 A Crim R 311
- Webb & Hay v The Queen (1993/94) 181 CLR 41
- Middis & Ors (Supreme Court of NSW, 27 March 1991, unreported)
- Guldur (1986) 3 NSWLR 12
- Jason Joy Richards (Supreme Court of NSW, 16 February 1998, unreported)
- Coulstock & Summersford (NSW Court of Criminal Appeal, 9 October 1991, unreported)