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Supreme Court 16 February 2017

R v Weston

[2017] NSWSC 1383

Homicide
CRIMINAL PROCEDURE APPLICATION TO DISCHARGE JURY PUBLICITY AS TO BIKIE VIOLENCE DIRECTIONS TO ISSUE APPLICATION REFUSED

Citation: R v Weston [2017] NSWSC 1383
Court: Supreme Court of New South Wales
Date: 16 February 2017
Judge(s): Rothman J

Background

The accused stood trial for an offence involving the death of a man who was reportedly a member of the Rebels Motorcycle Club. During the trial, articles appeared in the Daily Telegraph and the Sydney Morning Herald reporting on violence associated with the Rebels, including suggestions that the deceased's death was suspected to be an act of retribution by the gang.

Defence counsel made a timely application to discharge the jury, arguing that the media coverage created prejudice against the accused that could not realistically be overcome by judicial directions. Counsel gave the court advance notice of the application, which allowed the trial judge to read the relevant articles before the hearing.

The Crown opposed the application, noting the absence of any direct connection between the accused and the media coverage, and observing that internet articles remain accessible indefinitely, meaning any future jury would face the same problem.

  • Whether recent media coverage about bikie gang violence created a real risk of prejudice to the accused that could not be remedied by appropriate jury directions
  • Whether the jury should be discharged in those circumstances

Decision

Rothman J declined to discharge the jury. His Honour acknowledged that jury directions are not automatically effective, but observed that the jury in this trial had, through its body language, demonstrated it was taking directions seriously. The judge considered this a relevant factor in assessing whether directions could adequately address any prejudice.

His Honour noted that any prejudice arising from the media coverage was not one-sided. To the extent the articles might cause the jury to doubt the credibility of the accused if he gave evidence, the same prejudice would operate against Witness G, a witness giving evidence against the accused. In that sense, the competing prejudices offset one another.

Rothman J also observed that bikie-related media coverage is a persistent feature of public life in New South Wales and across Australia. It would be difficult, he said, to identify a four to five week period in which no such stories were published. Taken to its logical conclusion, any bikie-related publicity would either prevent trials of this kind from proceeding altogether, or the court must address the issue through directions.

Finally, the judge noted that the articles related to retribution for threats posed to the gang, which was a different kind of motivation from that alleged to underlie the death in the current proceedings. His Honour was not persuaded that any resulting prejudice was incapable of being overcome by directions, both in the summing-up and at an earlier stage of the trial.

Orders Made

No formal orders were extracted in this decision beyond the refusal of the application. The application to discharge the jury was refused.

Key Takeaways

  • Rothman J confirmed that the test for discharging a jury on the basis of prejudicial publicity is whether the prejudice is incapable of being overcome by appropriate directions, not merely whether prejudice exists.
  • The persistent availability of internet content was treated as a reason against discharge rather than in favour of it: a future jury would face the same accessibility of archived articles, so discharging the current jury would not eliminate the problem.
  • Where prejudicial media coverage operates equally against both the accused and witnesses testifying against the accused, the competing effects may be seen to offset one another.
  • A court's capacity to address prejudice through directions is not assessed in the abstract but in light of the particular jury's demonstrated responsiveness to direction during the trial.
  • The nature of the coverage matters: articles concerning bikie gang conduct that differs from the alleged motivation in the proceedings before the court carry less capacity for specific prejudice against the accused.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(c), 21A(2)(i), 21A(2)(n)

Cases:
- Adanguidi v R (2006) 167 A Crim R 295; [2006] NSWCCA 404
- R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469
- R v Twala (Court of Criminal Appeal (NSW), 4 November 1994, unreported)