Citation: R v McNeil (No 2) [2015] NSWSC 757
Court: Supreme Court of New South Wales
Date: 3 June 2015
Judge(s): Hulme J
Background
The accused stood trial for the murder of a man punched once to the head at Kings Cross on New Year's Eve 2013. The punch caused the victim to fall and suffer fatal blunt force trauma. The case arose in a highly charged public environment, with significant media and community debate about alcohol-fuelled violence and so-called one-punch homicides, particularly following a similar death in the same area eighteen months earlier.
Given the volume of prejudicial pre-trial publicity, including images of the accused, references to his criminal history, and inflammatory commentary, defence counsel had previously applied for a trial by judge alone under s 132 of the Criminal Procedure Act 1986 (NSW). Johnson J refused that application in April 2015, accepting that the bulk of the prejudicial coverage had appeared over a year earlier and that appropriate directions could sufficiently address any residual risk.
The present application arose on the third day of trial. Defence counsel applied for the jury to be discharged after media outlets published photographs of the accused on the first day of trial. Those photographs were said to suggest tendencies toward violence and intoxication, presenting the accused in the worst possible light, often alongside contrasting photographs of the deceased.
Legal Issues
- Whether the publication of prejudicial photographs of the accused during the trial created a real risk of impermissible prejudice to the accused's fair trial.
- Whether appropriate directions to the jury could sufficiently ameliorate that risk, such that discharging the jury was not necessary.
- Whether the court retained sufficient confidence in the jury's ability to decide the case impartially on the evidence alone.
Decision
Hulme J refused the application to discharge the jury. His Honour accepted that the photographs should never have been published after the accused was charged, and certainly not during the trial. The inference was open that the publications were designed to present the accused in the worst possible light. The potential for impermissible prejudice was described as very real.
However, his Honour was satisfied that, with an appropriate further direction to the jury, the risk of impermissible prejudice could be significantly and sufficiently ameliorated. Central to this conclusion was the careful way the jury had been empanelled. His Honour had given extended directions to the panel about objectivity and impartiality, offered automatic excuse to any panel member who harboured doubt about their ability to set aside prior publicity, and eight of 56 panel members had taken that opportunity. The remaining jurors had, in his Honour's assessment, demonstrated a serious commitment to their role.
His Honour also emphasised the general expectation that jurors will adhere to their oaths and comply with directions given by the trial judge. Further specific directions were given to the jury about the photographs and the need to disregard the publications entirely.
Despite refusing the discharge, his Honour made clear that the media publications had significantly disrupted the conduct of the trial. Half a day of sitting time was lost, lawyers on both sides were diverted from the substance of the trial, and the court was required to deal with a non-trivial application. His Honour described the intrusion of the media into serious criminal proceedings for highly questionable reasons as "intolerable" and indicated his intention to refer the matter to the Attorney-General for consideration of whether any proceedings should be taken.
Orders Made
- The application for the discharge of the jury was refused.
Key Takeaways
- Prejudicial media publication of photographs of an accused during a murder trial does not automatically warrant discharge of the jury; the question is whether appropriate directions can sufficiently reduce the risk of impermissible prejudice.
- A carefully conducted empanelment process, including extended directions to the jury panel about objectivity and a genuine opportunity for panel members to excuse themselves, can strengthen a trial court's confidence in the jury's impartiality when responding to subsequent prejudicial material.
- The expectation that sworn jurors will adhere to their oaths and follow judicial directions remains a significant factor in the assessment of discharge applications.
- Refusing a discharge application does not insulate the responsible parties from consequences: Hulme J indicated he would refer the matter to the Attorney-General, and noted that the publications had caused tangible disruption to the administration of justice.
- Under the Jury Act 1977 (NSW), s 68C, it is a criminal offence for a juror to conduct independent inquiries, including internet searches, about an accused or matters relevant to a trial; the existence of this provision formed part of the framework of protections the court relied upon.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 132 (trial by judge alone)
- Jury Act 1977 (NSW), ss 22, 55D, 68C
Cases:
- R v McNeil [2015] NSWSC 357 (Johnson J, the earlier trial by judge-alone application in this matter)
- R v Jamal [2008] NSWCCA 177; 72 NSWLR 258
- R v Loveridge [2014] NSWCCA 120