DPP v McDermott

3 The application arose in the following circumstances.

4 In the morning of 19 April 2016, Mr Phil Cleary, a freelance journalist and author, made an appearance on the Conversation Hour,[1] discussing with the host, Mr Jon Faine, his recent activities, including his campaign to improve protection for women from family and intimate partner violence.

5 Mr Cleary has a high public profile as a former footballer, a former member for Wills, and a longstanding campaigner on the subject of violence against women. He occasionally contributes opinion pieces to newspapers on the subject of family violence.

6 Mr Cleary's particular commentary on the Conversation Hour (the 'Cleary commentary') was broadcast at approximately 11.30 am on 774 ABC Melbourne, and a podcast of the episode was made available for download for a short period of time on the ABC Melbourne website.[2] A transcript of the Cleary commentary is set out in Annexure 'A' to this ruling.

7 It so happened that court was not in session that morning. I had adjourned court the previous day until 2.15 pm the next day to enable Mr Desmond to attend a medical appointment in the morning.

8 Because of the delayed start, it was possible that one or more jurors may have heard the Cleary commentary in spite of my earlier directions to avoid media publicity about the current trial, because the Cleary commentary was a short and seemingly unplanned aside to a wider conversation on the Conversation Hour in which Mr Cleary answered questions about recent interests in his life, political affairs, travel, and other matters.

9 I became aware of the Cleary commentary shortly after the Conversation Hour had aired, having been advised by the Court's Strategic Communications Manager.

10 Whilst Mr Cleary's comments were probably not intended to create any prejudice to the fair trial of the matter before me, they were nonetheless unfortunate.

11 The airing of the Cleary commentary occurred in the broader context of a high degree of media interest in family violence, flowing in part from the recent publication of the Royal Commission into Family Violence report.[3]

12 A juror overhearing the Cleary commentary may well have considered that Mr Cleary was expressing a view about the moral culpability of the accused in this trial, in light of evidence that the deceased was at the Sunshine Magistrates' Court obtaining a final intervention order against the accused in the hour before her death.

13 After hearing submissions from counsel, I decided that questioning the jury about whether any of the jurors had heard the broadcast was problematic and would draw further attention to the issue.

14 In considering Mr Desmond's application to discharge the jury, I decided to make my ruling on the assumption that any number of jurors had heard or been exposed to the Cleary commentary.

15 Acting on that assumption, I was nevertheless not persuaded that there was a high degree of necessity such that the jury should be discharged.

16 Mr Desmond contended that the problem with the Cleary commentary was that it was made in the wake of Mr Cleary having attended parts of the trial, so that he was speaking as a person with some knowledge of the evidence in the trial.[4] He submitted that the jury may well have noticed Mr Cleary's attendances in court, given his public profile, and thought that his knowledge of the evidence given in the trial added weight to his comments.

17 Mr Desmond described Mr Cleary as a national and international campaigner on the issue of domestic violence. He also pointed out that Mr Cleary had referred to his experiences with other murder cases in his commentary.

18 Mr Desmond argued that the remarks were too inflammatory to be capable of being cured by judicial direction.

19 He also requested that, if his application for a discharge was unsuccessful, the jury be reminded not to take account of the opinion of someone who had not been present for the entirety of the evidence in the trial, or who had an agenda.

20 Mr Kissane QC, for the prosecution, argued that any risk of unfair prejudice was capable of being cured with an appropriate direction to the jury, and that the trial should continue.

21 He argued that steps could be taken to have ABC Melbourne remove the particular podcast of the Conversation Hour from their website, thus reducing the risk of future exposure of the jury to the Cleary commentary.

22 He contended that the warnings already given about ignoring outside influences and remaining objective were sufficient and that a reminder of those warnings was adequate to cure any risk of unfair prejudice.

23 He argued that the Cleary commentary provided no new information or facts which are not already before the jury and that the comments were in the nature of throwaway remarks.

24 In Dupas v The Queen,[5] the High Court considered the capacity of the Supreme Court of Victoria to ensure a fair trial for the applicant despite his extraordinary notoriety as a serial killer and media publicity about his previous conviction for an offence which was the subject of a proposed re-trial and stay application.

25 The High Court emphasised that the principle underlying confidence in trial by jury is one that assumes that the jury will follow the directions of the trial judge and only act on admissible evidence.[6] It would be a very rare situation in which prejudice to the accused could not be remedied by adequate directions.[7]

26 In rejecting the stay application and considering whether the circumstances justified a stay, the High Court said:

There is nothing remarkable or singular about extensive pre-trial publicity, especially in notorious cases, such as those involving heinous acts. That a trial is conducted against such a background does not of itself render a case extreme, in the sense that the unfair consequences of any prejudice thereby created, can never be relieved against by the judge during the course of the trial.[8]

27 The High Court approved the directions given by the trial judge to relieve any risk of unfairness from a jury being influenced by pre-trial publicity.[9]

28 The risk of prejudice arising from extraneous publicity should in most cases be capable of being cured by judicial directions reminding the jurors of their roles and responsibilities.

29 In the case before me, the application for a discharge of the jury was not based on pre-trial publicity and I was not considering a stay application. However, the High Court's consideration of the trust imposed in juries and their ability to adhere to judicial instructions assists my view in this case.

30 The substance of the Cleary commentary that triggered Mr Desmond's application was not directed to the character or reputation of the accused, but instead implied a concern about systemic failings. It might be said that the systemic failure implied by the Cleary commentary pre-supposed an avoidable death in a family violence context.

31 Nevertheless, the jury was likely to be well aware of the poignancy of the deceased woman's situation, having heard evidence of her court attendances in the Federal Circuit Court and the Sunshine Magistrates' Court on 14, 15 and 16 April 2014, which forms a significant part of the evidence in this trial.

32 The case for the accused was put by Mr Desmond in his reply to the prosecution opening as one of self-defence. The accused, he argued, had killed his former partner after she had produced a knife when the accused had approached her to talk in a public street in Sunshine.

33 The jury was aware from the prosecution opening and the defence reply that self-defence and the question of who produced the knife were being put forward by the defence as the critical issues in the trial.

34 In those circumstances, with the benefit of further directions, I was confident that the jury was capable of ignoring the opinions of media commentators and family violence advocates.

35 It was also a relevant consideration that when the Cleary commentary was broadcast on the 10th day of the trial, the jury had heard evidence from 20 witnesses and had attended a view of the location of the incident. It could not be said that the trial was at an early stage.

36 As discussed by J Forrest J in an earlier ruling in these proceedings,[10] the relevant considerations in an application to discharge the jury include inter alia:

(a) the nature of the prejudicial event or 'mishap' that precipitated the application;

(b) the stage of the trial at which it occurs;

(c) the likely effectiveness of a direction to overcome its apprehended impact; and

(d) whether the conduct was deliberate.

The ultimate question for the trial judge is whether, after consideration of these matters, the high degree of necessity required to discharge the jury has been established.[11]

37 In my assessment of the risk of prejudice to the fair trial of the accused, the means available to remedy any such risk, and the likely effectiveness of curative direction, I was cognisant of the conscientious attitude of the jury at each stage of the trial when they were given instructions or directions.

38 I also took into account that there had recently been significant public commentary on government and social policy and the workings of the criminal justice system in light of the death of Luke Batty and the subsequent Royal Commission hearings.

39 Therefore, members of the jury may have been or may in the future while the trial is on foot be inadvertently exposed to differing views about systemic failings in family violence policy from a range of journalists, politicians, police and social commentators. They may also be exposed to conversations amongst friends and relatives responding to the public commentary which is undoubtedly occurring on a daily basis.

40 It is not realistic to expect to quarantine jurors from any and all public commentary about such a topical issue whilst the trial is underway. It would also be apparent to any jurors who had heard Mr Cleary's comments that, because of his public advocacy on the subject of violence against women, he could not and would not be commenting from a position of impartiality, whereas they are required to act impartially in accordance with the affirmation they took as jurors.[12]

41 When the jury was being empanelled for the trial, I was at pains to ensure that any person who felt unable to act impartially because of the subject matter should inform me prior to empanelment. The pool of potential jurors was told in some detail about the nature of the case and the kind of evidence which the jury would hear.

42 Having considered the matter carefully, I considered that a strong curative direction and a takedown request of the podcast would ensure that the fair trial of the accused would not be prejudiced by the Cleary commentary. This curative direction was in addition to similar directions already given in my introductory remarks and at other junctures in the trial,[13] but would not draw attention to Mr Cleary by mentioning him personally.

43 Ultimately, the direction that I gave the jury was as follows:

Good afternoon, members of the jury. While you're not busy in court, you're out and about and you're probably in a greater position to be exposed to media commentary and the like than otherwise.

I just wanted to remind you of a warning I gave you at the beginning of the trial and I'll give it to you at the end of the trial as well. In a case such as this one, there's necessarily going to be people that will have all sorts of opinions about the subject matter and want to persuade others to their opinions.

It's most important that you not allow yourself to be influenced by any outside influences or the influence of people who have not been present for every moment of this trial as you have, because their opinions will necessarily be uninformed.

It is your verdict that will ultimately be required in this case. You've all affirmed to give a true verdict according to the evidence. That's the evidence that you hear in this trial and so it is most important that you don't go looking up anything in the media, don't look for anything, don't - sometimes you can't avoid hearing something or seeing something - but do not allow it to influence you in any way because it will be most unfair, it will be productive of an unfair trial and a miscarriage of justice if you allowed yourself to be influenced in that way.[14]

44 In addition to the above direction, it is my intention to revisit the issue of the importance of impartiality and the direction to ignore outside influences in my final directions.

Transcript of extract of The Conversation Hour, aired on 19 April 2016 at 11.18 am

Phil Cleary: Without a doubt because it's cracked - it's opened the debate in a way that's a flourishness [sic], so we're gonna have this debate which is really important. But I ask this question: Of the 70 odd women who've been murdered by the man in their life, ex-partner invariably or after separation - or after the expression of separation, how many could've been saved? And I'd say, of the 70, if we had a better system, a strategic approach, half those women at least would not be dead. And I'm in a courtroom at the moment, and I can't go into the details of this ---

Jon Faine: --- I don't want you to be in contempt ---

Phil Cleary: --- but I've been in plenty of courtrooms where I've looked at a woman murdered and I would say 'That woman could've been saved.' How can a woman go to a court, a Magistrates' Court, and be dead?

[1] The Conversation Hour is an ABC Melbourne radio talk show.

[2] It was subsequently taken down at the court's and the Crown's request. A transcript of Mr Cleary's commentary is annexed to this ruling.

[3] Victoria, Royal Commission into Family Violence, Report (2016), published on 30 March 2016.

[4] On 13 April 2016, Mr Desmond had objected to Mr Cleary sitting in the press box directly opposite the jury during the trial. Mr Desmond had submitted, in essence, that it was unfair to the accused for Mr Cleary to position himself directly in the jury's line of sight, given Mr Cleary's reputation as an advocate in relation to family violence matters. Mr Desmond had requested that Mr Cleary be asked to sit in the public gallery at the rear of the courtroom. I had declined Mr Desmond's request at the time. Subsequently, of his own volition, Mr Cleary had sat in the public gallery despite not having been asked to do so.

[5] [2010] HCA 20; (2010) 241 CLR 237.

[10] R v McDermott (Ruling No 5) [2015] VSC 652.

[11] Ibid [37]-[38] (J Forrest J), citing Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427, 440.

[12] In this case, every juror chose to make an affirmation instead of an oath when offered the choice.

[13] Transcript of Trial, DPP v McDermott (Supreme Court of Victoria, S CR 2014 0195, Jane Dixon J, 6 April 2016) ('Trial Transcript') 145-7 & 395.

[14] Trial Transcript (19 April 2016) 936.