R v Dempsey [2001] VSC 2

Supreme Court of Victoria|2001-01-30|Before: HARPER, J.

On 28 November 2000 I ordered separate trials of the parents of Bo Dylan Dempsey who died on 12 August 1998. Kathleen Linda Dempsey has been charged with the manslaughter of her son; Brendan Dempsey with his murder.

The Crown has determined that Mrs Dempsey should be tried first. It is intended to call her in the case against her husband. In particular the Crown wish to call evidence from her to the effect that Brendan Dempsey confessed to his involvement in Bo Dylan's death. This evidence is, the Crown case would have it, important not only in itself, but also in refuting any suggestion that a confessional statement made by Mr Dempsey to the police was not true. According to the Crown, the confession made to Mrs Dempsey was made a week or so before, and in the same general terms, as that made to the police.

In these circumstances, the Crown has formed the view that it would be inappropriate - and indeed unfair - to call Mrs Dempsey in her husband's trial while she was herself yet to be tried on a charge arising out of the same events as those which led to her husband being accused of murder.

I cannot compel the Crown to alter the order of the two proceedings. There is, however, a danger that if Mrs Dempsey is tried first, then the attendant publicity would so infect any trial of her husband held within a period of months afterwards as to prejudice the administration of justice. He might in the circumstances postulated not receive a fair trial. Conversely, it might be unjust to him to delay his trial for the period necessary to neutralise any prejudicial effect which publicity generated in hers would have on his. This is so because, as I understand her defence, it will include the proposition that Mr Dempsey was, to her knowledge, a man who had a conviction, or perhaps several convictions, for crimes of violence and of whom she had real reason to be afraid.

It was considerations such as these which led me to conclude that Mr and Mrs Dempsey should be tried separately. In giving my reasons for so deciding, I said at [2000] VSC 527 [5]-[6]:

"[A] joint trial would see the introduction in Mrs Dempsey's case of much material highly prejudicial to Brendan Dempsey, although inadmissible against him. It is almost certain that Mrs Dempsey will contend that any neglect by her of the welfare of Bo Dylan was attributable to her husband. She feared that he would cause her to suffer if she exposed him by taking Bo Dylan to medical treatment. Evidence will be called to the effect that he was a violent and aggressive man whom she feared. That evidence will come in part from her relatives who (it might be expected) will be called to speak of his behaviour towards his wife. It may well be bolstered by evidence of Mrs Dempsey's knowledge of her husband's past convictions for crimes involving violence. In addition, the jury will have before it evidence of an admission allegedly made by Mr Dempsey to his wife. This is relevant as going to the time at which (according to her) she first knew of the injuries to Bo Dylan. None of this evidence is admissible against Mr Dempsey. Some of it would, nevertheless, tend to support statements he claims are untrue made by him in a record of interview given on 5 August 1999. All of it would be prejudicial to him."

The Crown submits that it is now necessary, if proper effect is to be given to these considerations, that I make an order prohibiting the publication of a report of the whole of the proceeding or any information derived from the proceeding. I have power to make such an order under s.18 of the Supreme Court Act 1986 if (among other things) I am of the opinion that it is necessary to do so in order not to prejudice the administration of justice: see s.19 of that Act.

A prohibition such as that proposed by the Crown is not to be ordered unless the court forms the opinion to which s.19 refers. Even then the power so to order may, not must, be exercised. While it is, of course, important that the administration of justice not be prejudiced, that is not the only value which must be taken into account. Another is that justice not only be done, but be manifestly seen to be done. That end is best secured by openness and transparency in the trial process.

It occasionally happens that the openness with which trials should desirably be conducted will, or very possibly might, prejudicially affect the administration of justice. That is the position here. What evidence will be called by Mrs Dempsey in her trial remains, of course, a matter about which the Court cannot be certain. Nevertheless, there must be a very real possibility that she will call evidence about her husband's prior criminal history and generally to the effect that he is a violent and aggressive man of whom she was, with very good reason, afraid. If she calls such evidence, there must be a very real possibility that unless an order is made under s.18 of the Supreme Court Act, it will be given wide publicity. If it is, then a large proportion of potential jurors in Mr Dempsey's trial is likely to have that evidence brought to their attention.

That consideration is, nevertheless, not of itself conclusive. Jurors are capable of a critical assessment of what they see and hear. They are likewise capable of reaching their decisions by reference to the evidence before them to the exclusion of inadmissible material about which they may become aware. So, for example, prior information about a case, and even the holding of a tentative opinion about it, does not make partial a juror sworn to render a true verdict according to the evidence: R v. Hubbert (1975) 29 C.C.C., (2nd) 279 at 291 cited with approval by Mason CJ and Toohey J in R v. Glennon [1992] HCA 16; (1992) 173 C.L.R. 592 at 603.

In the absence in the particular case of evidence to the contrary, it is also generally to be assumed that the members of the jury will accept and give effect to the directions of the trial judge.

Some material is, nevertheless, so prejudicial - either in its context or content or in the way it is presented or in its repetition - that it would be very difficult for any juror who has been subjected to it, no matter how conscientious, to put it entirely aside. Even if that juror makes no conscious reference to it, some subconscious effect may remain; and that effect may be prejudicial to the administration of justice.

Courts have thus recognised the particularly damaging effect which knowledge of prior convictions may have. In Glennon's case, for example, Mason CJ and Toohey J said at 604:

"Knowledge of an admissible prior conviction for a similar offence stands in a different position from other prejudicial information. Reception of inadmissible evidence of a prior conviction has been said to offend against one of the most deeply rooted and jealously guarded principles of our criminal law. And the wrongful reception or transmission of such evidence by or to the jury is calculated to set the prospect of a fair trial at risk."

I have already noted that evidence of Brendan Dempsey's criminal history is likely to be led in his wife's trial. Other material prejudicial to him is also likely to be led. If led, it is likely to receive extensive publicity unless an order is made preventing that publicity. If the material is published it is likely to be received by a wide cross-section of the public from whom potential jurors will be drawn. If received by such persons it is highly likely that Mr Dempsey's trial will be prejudiced unless it is delayed for a period of many months. That would be unfair to him.

Analysis of the matters at issue here may be assisted by asking whether material of the kind to which I have referred would if published on an occasion not covered by privilege amount to a contempt. In my opinion, it is at least tolerably clear that publication of material of the kind to which I have referred would have that effect. I recognise at once that this does not conclude the matter. It is, however, a point to be taken into account.

Another consideration is that an order prohibiting publication of a report of the proceeding need not and should not operate any longer than is necessary to achieve its purpose. That necessity would be removed once the trial of Mr Dempsey is concluded. All would then be free to publish in the usual way. Nor would an order prohibiting publication inhibit in any way the access to this trial which the media and the general public will enjoy. Hence the transparency of the proceeding will be maintained with the single, and in my opinion immaterial, qualification that publication of a report of it will be delayed for what should be no more than a relatively short time; and publication, if it happens, will occur immediately after the conclusion of Mr Dempsey's trial. It is not anticipated that reporting of that trial will be restricted. The issue surrounding the death of Bo Dylan Dempsey will, therefore, still be very much in the public domain when reports of Mrs Dempsey's trial will no longer be covered by the order I propose to make this morning. To that extent the proposition that stale news is no news has reduced relevance. In any event, that proposition does not apply with the same force to evidence that, for example, there was some impropriety in Mrs Dempsey's trial. A story covering such a circumstance would not go stale as quickly as might other aspects of the proceeding. The proposed order will, therefore, not, in my opinion, interfere with the role of the media as a guardian of propriety in the administration by the court of the system of criminal justice.

Two further points should be made. First, I do not think it practicable to prohibit the publication of only part of the proceeding. The difficulty of accurately defining the part that could be reported would outweigh the benefits of a limited order of this kind.

Secondly, this ruling should not be seen as an encouragement to those who would wish to obtain similar orders in the future. Each case must be judged on its own facts. The facts of this case are, it hardly need be said, peculiar to itself. For these reasons I order that publication of the whole or any part of the trial for manslaughter of Kathleen Linda Dempsey following the death of Bo Dylan Dempsey be prohibited until verdict in the trial of Brendan Eric Dempsey for the murder of Bo Dylan Dempsey.

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