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[2012] WASC 172
Supreme Court of WA
2012-05-23
Hall J
Original judgment source is linked above.
1 HALL J: The accused stands charged that on 9 May 2011 he murdered Andrew Kirk Marshall. He has entered a plea of not guilty to that charge and a trial has been set down for the period 11 to 22 June 2012.
2 On 18 May 2012, an application was filed by the accused seeking an order that the trial be by judge alone. That application was made pursuant to s 118 of the Criminal Procedure Act 2004 (WA). Any such application must be made before the identity of the trial judge is known to the parties. In this case the identity of the trial judge is not yet known.
3 While it is open to make an application now, I should note that this is nonetheless a very late application. These proceedings have been on foot since 9 May 2011 and the trial dates have been in place since 12 December 2011. There have been a number of status conferences, as recently as 10 May 2012. At that status conference Jenkins J inquired of the defence whether any directions hearing would be required before the trial. This application was not adverted to. This is despite the fact that the publicity which is said to justify the granting of an application predates the last status conference.
4 It is desirable that applications of this type be brought as far in advance of a trial as possible. One reason for that is that whether a trial is to be by judge and jury or by judge alone has an impact on the court's listings, particularly because a judge hearing a trial alone will need to be allowed time to prepare detailed written reasons.
5 The application is supported by four affidavits, two from the solicitor for the accused, Mr Malcolm Ayoub, both dated 18 May 2012, and two from a law clerk, Ms Georgina Thomas, dated 22 May and 23 May 2012. The prosecution has also filed two affidavits from Senior Constable Matthew Donkin in respect of this matter dated 22 and 23 May 2012.
6 The affidavits filed by the defence annex materials falling into the following categories: (1) publicity from The West Australian and Sunday Times newspapers regarding the circumstances of the death of Mr Marshall in the days following 9 May 2011; (2) comments from internet forums regarding the events with dates of between 10 and 12 May 2011; (3) extracts from online news sites of 10 May 2011 including PerthNow and WA Today relating to the events; (4) subsequent reports in print and online media regarding a bail application and forensic testing undertaken by the police. (I interpose here to say I am told in regards to the forensic report that it might be the subject of challenge but that is a matter of speculation at this stage); (5) other related publicity regarding an attack on a person identified as a bikie lawyer and regarding proposed laws to limit Outlaw Motor Cycle Group (OMCG) members from associating with each other; and (6) the results of internet searches of the accused's name coupled with either 'OBH' or 'Rock Machine'.
7 Counsel for the accused submits there is a real possibility that a jury may not be able to bring an open mind to bear on the issues in this case due to the publicity surrounding the event both at the time and since. In particular it is said that the connection drawn in the publicity between the accused and the Rock Machine motorcycle club is likely to prejudice any jury against the accused and make a fair trial impossible.
8 In support of the latter point it is said that continuing adverse publicity about OMCGs, and the Rock Machine club in particular, will likely influence potential jurors. It is said that publicity regarding the Rock Machine is likely to occur shortly before the trial due to the sentencing of a Rock Machine associate, Benjamin Sipkes for an offence arising from the shooting of a member of a rival gang.
9 The interpretation of s 118 of the Criminal Procedure Act has been considered in other cases in some detail. See, in particular, Arthurs v The State of Western Australia [2007] WASC 182. Suffice to say that in an application by the accused the court may make an order for trial by judge alone if it is in the interests of justice to do so. I accept that the circumstances in which it would be in the interests of justice to order trial by judge alone include circumstances where the extent and nature of pre-trial publicity would create an unacceptable risk of an unfair trial. This has occurred in some other cases. I refer to The State of Western Australia v Evans [2012] WASC 87, and The State of Western Australia v Rayney [2011] WASC 326.
10 In those cases where pretrial publicity has been the basis for an order for trial by judge alone, careful consideration has been given to the nature, timing and amount of publicity and how it relates to the matters likely to be in issue in the trial.
11 The prosecution case as outlined in the statement of material facts is as follows. It is alleged that at about 8.45 pm on Sunday, 8 May 2011, the accused was at the Ocean Beach Hotel located on Eric Street in Cottesloe, socialising with a group of associates. The deceased was also at the hotel socialising. Both the accused and the deceased were on the second storey of the hotel where a band was playing. After returning from the bathroom the deceased attended a table occupied by two female patrons and began conversing with them.
12 Upon seeing this, the accused walked from the opposite side of the bar to the deceased and the two females. It is alleged that for no apparent reason the accused took hold of the deceased from behind and forcibly threw him at a plate glass window which was approximately one metre away. The window smashed upon impact and the deceased fell through, falling at least seven metres to the pavement below. After throwing the deceased through the window the accused is alleged to have assaulted another patron by punching him to the face with a clenched fist and to have then left the hotel.
13 As a result of the fall the deceased sustained severe injuries and was conveyed to Sir Charles Gairdner Hospital in a critical condition, where he later died.
14 I am told by the prosecution on this application that there will be no issue as to identity and therefore the number of witnesses to be called will be comparatively few and the descriptions of the accused at the time will not be relevant. As is apparent, there is no suggestion of any prior connection between the deceased and the accused. There is nothing to suggest that the fact that the accused is or was a member of any bikie group is relevant to the events. This has been confirmed today by the state in its submissions.
15 The issue for the jury is likely to be whether the accused intended to cause bodily injury of such a nature as to endanger or be likely to endanger the life of another.
16 The fact that the events resulted in publicity some of which was, perhaps understandably, expressed in emotive terms is not in itself unusual. I would accept that there was some speculation in the publicity as to how the events occurred and the extent to which they were fuelled by alcohol. However, that publicity was now over 12 months ago and should be readily capable of being nullified by an appropriate direction. I do note that there has been more recent publicity in regards to testing apparently undertaken by the police in regards to the glass window.
17 The most serious example from the defence point of view of publicity which could have an adverse effect on the trial is that referred to in Senior Constable Donkin's second affidavit of 23 May 2012. This is a story which occurred in the context of a report on the ABC television 7.30 Report. I note par 5 of that affidavit and that there was reference apparently to this incident, although there is no reference to the accused by name, in the context of what was said to be other incidents of criminal activity in this and other states by members of motorcycle groups.
18 As to internet commentary, much of it is selfevidently the uninformed chatter of people unconnected to the events. It is so much the feature of the internet in this day and age. Much of that interchange dates from a time close to the events. I do not accept that it is representative of broad community views. It may still be accessible to those who look for it but it must be of very little interest to anyone and is unlikely, in my view, to influence potential jurors.
19 The application places particular emphasis on the broader publicity regarding the Rock Machine and OMCG's more generally. This is publicity that suggests that members of such groups engage in organised criminal activity and in particular acts of violence to further their ends. The 7.30 Report story referred to earlier is an example of this. The risk is said to be that the jury will become aware that the accused is a Rock Machine associate and will conclude from that fact that he is a violent person and that he committed this offence without giving proper regard to the evidence.
20 It should be noted that the case of Sipkes, which I earlier referred to, involves violent offending in very different circumstances. That case involves a planned hit upon the president of a rival gang. It was not a seemingly random and sudden act against an unconnected person as is alleged here.
21 The logical extension of the accused's arguments is that no OMCG member, or at least no Rock Machine member, could receive a fair trial by jury in Western Australia given the publicity which has occurred and is likely to continue to occur.
22 Any argument predicated on unfairness arising from publicity has to recognise that jurors are capable of understanding and applying the directions that they are given. There will be cases where the prejudice is likely to be so ingrained as to be resistant to directions. That, in my view, is more likely to be the case where the adverse publicity relates specifically to the accused. The more it relates to a wider group of which the accused is said to be a member, the easier it is for a jury to identify it as mere prejudice and put it aside.
23 That is the case here, in my view. Publicity relating to the proposed OMCG antiassociation laws, the alleged criminal activities of OMCGs generally and the offending of other OMCG members including Benjamin Sipkes, is readily identifiable as information which would not be relevant in determining the live issues in this case. That is not to say that there is no risk that pretrial publicity has the potential to prejudice a jury, but the mere existence of a risk could not justify a conclusion that the interests of justice require a trial by judge alone. That would ignore the degree and nature of the risk and the efforts that could be made to minimise it. If any risk was sufficient then any case which attracted pre-trial publicity would likely result in trial by judge alone on an application by the accused.
24 The interests of justice does not assume a preference for one form of trial over the other. Each has its advantages and disadvantages as to which see Arthurs. However, the interests of justice must take into account that juries properly directed are capable of ignoring prejudicial publicity and returning a true verdict on the evidence. In the present case I am not convinced that any prejudice is likely to be 'wide spread or entrenched' (Rayney [88]), or that the views of potential jurors are likely to be 'preconceived as to guilt' (Rayney [92]). This is a case which clearly in my view is one where appropriate directions to a jury would be effective in obviating the risk of potential prejudice from publicity. Accordingly the application is refused.