Citation: Regina v Darwiche & Ors [2006] NSWSC 927
Court: Supreme Court of New South Wales
Date: 19 April 2006
Judge(s): Bell J
Background
Three accused were on trial in the Supreme Court for the murder of Ahmed Fahda, who was shot dead in 2003. The trial commenced on 3 April 2006. The jury had been empanelled and sent away for the week before substantive proceedings began.
On 10 April 2006, the Daily Telegraph published extensive coverage of gun violence in Sydney's Lebanese Muslim community, including a photograph of the deceased and his young wife, and an interview with the deceased's father in which he described himself as a target for speaking out against gang violence. That same day, Channel 10 News broadcast coverage relating to the trial. Both publications prompted applications by all three accused for the discharge of the jury.
Bell J refused both applications and delivered reasons addressing each.
Legal Issues
- Whether the Daily Telegraph coverage, including the photograph of the deceased and the interview with his father, created a real risk of prejudice sufficient to warrant discharge of the jury
- Whether the Channel 10 News broadcast of material concerning the trial similarly prejudiced the accused's right to a fair trial
- Whether the court should examine jurors on oath under s 55D of the Jury Act 1977 to determine whether any juror had seen or been influenced by the relevant publications
Decision
On the Daily Telegraph application, Bell J accepted that the coverage may have generated sympathy for the deceased, but did not consider that sympathy would affect the fairness of the trial. The central issue at trial was identification: whether the Crown could prove beyond reasonable doubt that these accused were the persons responsible. A direction to decide the case on the evidence and to put aside any sympathy for the deceased was, in the court's view, one that a jury could be expected to follow.
Bell J also found that the father's suggestion that he was personally at risk was referable to the broader current wave of shootings, not to the specific investigation into his son's death. The court noted the accused had in fact been charged and were being tried for that offence, making it unlikely jurors would read the coverage as indicating a failure of accountability. Practical considerations also weighed against discharge: the trial involved three accused, was estimated to run six to eight weeks, and securing a fresh panel would cause significant delay.
On the Channel 10 broadcast, Bell J exercised the power under s 55D of the Jury Act 1977 to ask the jury whether any member had seen the broadcast. Only one juror had. That juror was examined on oath in the absence of the others and recalled only that a reporter had stated the trial had begun. He had no recollection of any potentially prejudicial material from the broadcast. Bell J was satisfied that juror had not been influenced, and that no other juror had seen the broadcast at all. The application was refused on the basis that no actual prejudice to a fair trial had been established.
Throughout both rulings, Bell J relied on the High Court's observations in R v Glennon that the legal system proceeds on the footing that jurors, acting on the trial judge's directions, will return a verdict in accordance with the evidence. The court noted that past approaches may have underestimated the capacity of jurors to critically assess what they see and hear outside the courtroom.
Orders Made
- Applications for discharge of the jury refused.
Key Takeaways
- Sympathy potentially generated by media coverage of a deceased victim does not automatically warrant discharge of a jury, particularly where the central trial issue is one of identification rather than character or motive.
- Under s 55D of the Jury Act 1977, a trial judge has the power to question jurors on oath to assess whether they have been exposed to, or influenced by, prejudicial publications.
- Refusing the discharge, Bell J applied the principle from R v Glennon (1992) 173 CLR 592 that the law proceeds on the assumption that jurors acting on proper directions will reach their verdicts on the evidence alone, and that jurors should not be underestimated in their capacity to critically assess external material.
- Practical considerations, including the length of the trial, the number of accused, and the difficulty of empanelling a new jury, formed part of the balancing exercise in deciding whether to discharge.
- No discharge is warranted where the court is satisfied, after examination of the relevant jurors, that potentially prejudicial material was not absorbed or recalled in a way that could affect the verdict.
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW), ss 55D, 68C
Cases:
- R v Glennon (1992) 173 CLR 592 (High Court of Australia)