R v McLachlan [2000] VSC 215

Supreme Court of Victoria|2000-05-24|Before: Hampel J

CRIMINAL LAW - murder - retrial - Crimenet publication of information about previous trial - unacceptable risk of prejudice - jury discharged without verdict.

At the close of the Crown case in this short trial an application has been made to discharge the jury on the basis of the entries which appear on the Internet site known as CrimeNet.

This is a site which is now well-known generally because it has received publicity when it was first designed and made available and there was considerable discussion in the press about its propriety, its value and its dangers.

The entries in relation to this case on CrimeNet relate to the accused John McLachlan, referring to him as an associate of Tracy Marshall. There is also a corresponding entry about Tracy Marshall.

The significance of all that is that in this matter there have been two previous trials, one concluded. The accused McLachlan was found guilty of murder and sentenced to be imprisoned for 18 years. The co-accused Tracy Marshall was also charged with murder but found guilty of manslaughter and sentenced to be imprisoned for four years.

The Court of Appeal allowed the accused's appeal and ordered a re-trial, which this is. At the previous trial the case against the two accused Marshall and McLachlan was that they, acting in concert, inflicted substantial injuries to the deceased and on that basis both were found guilty of homicide, one of murder, one of manslaughter.

In this trial the accused is presented on the basis that his actions caused the death of the deceased. The Crown has not put its case on the basis of concert for perfectly understandable reasons.

One issue in this trial is causation. Other issues are intent, self-defence and possibly provocation. I think from what has been said in argument and from the way the two cases have been run, it is clear that they are quite different in the way the Crown puts the case and the issues which in fact arise, partly caused by the absence of the co-accused Marshall.

The entries go beyond mere recording of the fact of a previous trial and the two relevant convictions with the sentences. They each attempt to describe the circumstances of the previous trial briefly. As appears from the transcript, the entry about McLachlan asserts that the deceased was in the Bayswater unit, referring to the unit as McLachlan's, which is incorrect, when the deceased told McLachlan that he would like to kill a friend of his. That last part of the assertion is partly correct on the evidence in this case. It then asserts that McLachlan punched and kicked Jones, dragged him outside and smashed his head against a concrete driveway. That is a description of a sequence of events about which there is considerable disagreement between witnesses in this case, not so much in what occurred, but as to the sequence in which it occurred. It then goes on to say his de facto wife Tracy Marshall also participated in the attack. The de facto wife proposition is incorrect, but the participation at least on some evidence is correct. The recitation in the Marshall entry is that Marshall "played her part in the brutal killing of a Mr Derek Jones who had been drinking with her and her de facto husband John McLachlan in their unit in Bayswater, Victoria. Mr McLachlan who instigated the attack was gaoled for murder".

I think the first question for me, and the one which has been the subject of argument, is whether one should proceed on the basis that there is a significant risk that the jury is aware of these entries.

This has been a short trial and the jury, upon my enquiring, indicated when they were members of the panel that they did not know either McLachlan or Marshall or of the incident. The trial went on on Monday morning and has continued to this morning.

Complicating the matter is the program which has been referred to in argument which appeared on Radio National this morning. It was about CrimeNet, about the problems with it, about the effect that it may have on juries. Although I have not had in evidence the text of the program, I think it is fair enough to proceed on the basis that it is part of the publicity, and recent publicity, about the CrimeNet site and its problems.

Whether a juror may have, between early this morning and now, looked at the Internet is an interesting question about which one can speculate. However, this trial has not concluded and this program may well be an additional factor which may arouse the interest of some jurors.

In a previous trial of Cogley this problem arose at the 11th hour when the jury had been out for a third day after a trial of about three weeks, when the application to discharge was made. I took the view that, quite apart from the existence of any such recent program, that it would not be safe to proceed given the past publicity about this site on the basis that some members of the jury may, having heard about the program and being involved in a criminal trial, not be tempted to look at the entry on CrimeNet for the accused or perhaps some witnesses.

I do not think it is possible to cure this problem by any direction which has reference to the CrimeNet. It would be possible, of course, to give the jury strong instructions that all it must consider is what is heard in this court. Any reference to CrimeNet, either on the program this morning or to the site generally, even if the jury were not able now to have access to the Internet by being kept together, would have the risk of triggering speculation about the accused's prior history as a person that is worthy of note on CrimeNet.

Mr Parkinson quite rightly says the difficulty is how do you proceed with a trial on another occasion if this view is taken. That is a difficult question.

In Cogley I asked the prosecutor Mr Horgan to bring to the attention of the Director and the Attorney the problem which may arise. I have myself drawn the problem to the attention of the Attorney-General. I understand that the Director and the Chief Judge of the County Court have drawn the Attorney's attention to these matters.

I do not know what the answer is as to how one can proceed in the future. It may be that, like old publicity adverse to an accused, the effluxion of time may well be held to remove or reduce the risk if these sort of entries are removed.

But that is not the problem for me, ultimately, although I think it is a proper issue to raise by Mr Parkinson. The question for me is whether there is a high degree of necessity to discharge this jury because of the risk of unfair prejudice to the accused.

The question of prejudice is, I think, one that is easier to resolve. The matters Ms Morrish put on behalf of the accused, which relate to the combined effect of the information about McLachlan and Marshall, their association, the previous trial, the fact of conviction by a previous jury of murder, which are all matters of which this jury is not aware, and the descriptions of the events in those entries, I think in all the circumstances do have an unacceptably prejudicial effect, given the differences and given the issues in this trial to which I have already referred. I think Mrs Morrish is right to say that in Cogley the jury was aware that there had been a previous trial, an appeal and a re-trial and was aware that the issues in each trial were exactly the same, namely, whether the killing of the man was by his own act or whether it was an execution by Cogley. That was the very issue that the jury had to try.

In this case the issues are somewhat different, as I have already said. There are questions how this jury will look at who was involved, who participated, what was the causal connection between the death and the acts of the accused. So these are different circumstances from Cogley.

I think Mr Parkinson very fairly conceded that it is not possible to hold that if the jury were aware of these entries, one could safely say that no prejudice would flow to the accused. I do not think I need to take that further. All I can say is that each case must be looked at on its own facts by reference to what the jury knows, how the trial is being conducted, and what appears in these entries. It is interesting, I think, as an aside, that in neither of these cases do the prior convictions of both of the accused appear, and that was also the case in Cogley. Both of these cases, that is this case and Cogley were retrials. One can have no confidence that in the future prior convictions properly so-called rather than convictions on a previous trial in the same matter would not appear on these entries. However, as I said, I agree with the submission and that I should proceed on the basis that there is an unacceptable risk of prejudice to the accused. Regrettably, I have come to the conclusion that I must also proceed on the basis that there is an unacceptable risk, at this time, given the previous publicity, and given the perhaps added effect of the publicity this morning, this trial could not conclude fairly because there is a real risk that the jury has already or may well before the end of this trial become aware of these entries, either at their own instigation or someone else's. I know that one could speculate that that is unlikely. But I do not think that is a basis on which I could proceed in considering whether the accused will have a fair trial.

I think it is not insignificant, although not a major consideration, that this has been a very short trial, extremely efficiently conducted, focussed on the real issues, and has so far taken two days from the empanelment of the jury to the conclusion of the Crown case. And so although this is not a major consideration, it is a little different from a long case where this problem arises right at the end of the jury's deliberations. In such a case the judge can take the approach that there is not a high necessity to discharge because a Court of Appeal would be in the same position to say that the decision not to discharge was wrong and a re-trial could be ordered. In those circumstances to discharge may deprive the accused of the opportunity of an acquittal.

I think in this case those practical considerations are different in that the application is made after a two-day hearing.

I regret to say, therefore, that I must discharge this jury. I sympathise with Mr Parkinson's concerns about what can happen in the future. I am afraid that is not a matter that can affect my decision.

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