Citation: R v Fitzpatrick (No 3) [2019] NSWSC 972
Court: Supreme Court of New South Wales
Date: 4 July 2019
Judge(s): Campbell J
Background
The accused stood trial in Bathurst for the murder of John Burrows, who died on 24 July 2015 when an improvised explosive device detonated in his face in a laneway in Portland. The accused had at all times denied involvement and maintained his innocence. The trial was in its early stages, with the jury having received evidence for only two days.
During the evening of the third day of trial, a news report aired on the Nine Network showing footage of the accused being escorted from the Bathurst Courthouse in handcuffs by corrections officers. The footage appeared to have been obtained deliberately, with the camera operator using a ladder or similar device to film over the high wall enclosing the courthouse cells. The report also included earlier footage of the accused's arrest in handcuffs and police media conference material displaying items allegedly associated with the improvised explosive device.
At least one juror reported to a court officer that they had seen one of the broadcasts. Defence counsel applied to discharge the jury and, by implication, sought an adjournment of the trial.
Legal Issues
- Whether the broadcast of the media report created a real risk that a fair trial could no longer be had.
- Whether the depiction of the accused in custody would prejudice jurors in their decision-making, notwithstanding the oaths they had taken and judicial directions already given.
- Whether judicial directions to the jury would be sufficient to address any risk of unfairness, or whether discharge of the jury was necessary.
Decision
Issue 1: Whether a real risk of an unfair trial existed
Campbell J acknowledged that the media coverage was unsatisfactory in multiple respects. The footage depicting the accused in custody was the principal concern, as it risked encouraging impermissible reasoning by jurors that an accused person held in custody must be guilty (at [20]). The report also included material that had not yet been tendered in evidence and drone footage used without court permission (at [15]-[17]).
Issue 2: Whether the custodial depiction was disqualifying
The court found that the fact of an accused being on remand arises naturally in many criminal trials through a variety of means, including prison informer evidence, telephone intercept evidence, and police visits to custody. Such matters are routinely addressed by judicial direction (at [21]-[22]). Campbell J noted that superior courts proceed on the basis that juries understand and follow directions given to them, including conventional directions about ignoring media reports, which had already been given to both the panel and the empanelled jury in this case (at [22]).
Issue 3: Whether discharge was the appropriate remedy
Campbell J refused the discharge application, finding that a fair trial could be had by giving the jury appropriate directions (at [26]-[28]). The court also observed that, given the pervasive nature of the internet, discharging the jury would not necessarily remedy the problem: any replacement jury empanelled shortly afterward would likely be equally exposed to the online material (at [25]). His Honour indicated he would forward the transcript and judgment to the news organisation and journalist, with a direction that it not be further published until after the verdict was returned (at [27]).
Orders Made
- Application to discharge the jury refused.
Key Takeaways
- Conventional judicial directions to ignore media reports are generally sufficient to address the risk of jury prejudice arising from prejudicial news coverage, including coverage depicting an accused person in custody, provided there is no basis to conclude the jury cannot follow such directions (at [22], [26]).
- The Supreme Court confirmed that the test for discharging a jury on grounds of media prejudice is whether a real risk exists that a fair trial can no longer be had, assessed on the practical assumption that jurors adhere to their oaths and follow the trial judge's directions (at [19]).
- An accused person's custodial status arises in many different ways during criminal trials and is regularly managed through judicial direction rather than discharge of the jury (at [21]-[22]).
- Refusing the discharge application, the court noted that the ubiquitous nature of the internet means a replacement jury may be equally exposed to prejudicial material, which is a relevant practical consideration when weighing the remedy of discharge (at [25]).
- Deliberate efforts to obtain footage of an accused person leaving a courthouse in custody, including by filming over a security wall, were characterised by the court as "unsatisfactory," and the court indicated it would bring the matter to the attention of the news organisation responsible (at [14], [27]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated