Director of Public Prosecutions v Asling (Ruling No 5)
[2017] VSC 60
•15 February 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0092
BETWEEN
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEPHEN JOHN ASLING |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 February 2017 |
DATE OF RULING: | 15 February 2017 |
CASE MAY BE CITED AS: | DPP v Asling (Ruling No 5) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 60 |
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CRIMINAL LAW – Murder – Application by accused to discharge jury – Application arising from newspaper article containing material not before jury – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Tinney SC with Ms S Flynn | Solicitor for Public Prosecutions |
| For the Accused | Mr M O’Connell SC with Mr M Goldberg | Stary Norton Halphen |
HIS HONOUR:
The accused man has been charged with the murder of Graham Allan Kinniburgh at Kew on 13 December 2003. The jury in the trial was empanelled yesterday and the prosecutor completed his opening yesterday afternoon. Mr O'Connell, senior counsel, who appears with Mr Goldberg on behalf of the accused, commenced his opening when the case adjourned last evening.
This morning a view was conducted with the jury at the locations that are relevant to the case. On return to court application has been made on behalf of the accused that the jury be discharged without verdict in the trial. That application has been made on the basis of an article that appeared in the Australian newspaper this morning on p.3 and also on the Internet entitled, "Williams offered $150,000 for gang hit".
The article purports to report on the opening that Mr Tinney, senior counsel who appears with Ms Flynn, made for the prosecution. However the passage to which counsel for the accused takes exception reports matters that were not at all any part of the prosecution opening and reports some matters which will not be the subject of any evidence in this case. The passage is as follows: "Blewitt was last seen in April 2004. Human remains located by police in Thomastown in January last year are believed to be those of the career criminal but they were unable to be formally identified".
As I state, the section of the article I have just read was not part of the opening and the reference to the finding of human remains believed to be those of Blewitt will not be part of any of the evidence in the case for obvious reasons.
Mr O'Connell correctly accepts that the test that I must apply is that in order to discharge the jury without verdict there must be a high degree of necessity for that to take place. He submitted however that there is an unacceptable risk that the jury will infer from the parts of the article to which I have just referred, and from evidence that is to be led in the trial, that his client Mr Asling was responsible for the disappearance and death of Mr Blewitt in circumstances of foul play.
The evidence in the trial will include that of Ms Stanton, the then partner of Mr Blewitt, who will give evidence that is directly relevant to the case, that Mr Blewitt was last seen by her on 12 April 2004. The prosecution case will be that on that occasion Mr Blewitt was in the company of Mr Asling and also witness P.
Mr O'Connell has submitted that the reference to human remains, that were believed to be that of the career criminal Blewitt, necessarily would infer to any person who read the article, including a juror, that Blewitt, having last been seen on that day, subsequently met with foul play. He pointed out that his client was not charged with the offence of the murder of Mr Kinniburgh until November 2015 and that the article states that the remains of Blewitt were found in January of 2016, that is shortly after Mr Asling was charged.
It was submitted that from those facts a juror, having read the article, would infer that the arrest of Mr Asling was directly connected with the finding of those remains in circumstances that indicated that Mr Blewitt had met with foul play. Thus it is submitted that the jury in those circumstances would infer that Mr Asling was responsible for the death of Mr Blewitt.
Mr O'Connell has accepted that yesterday in my directions to the jury I gave strict directions as a matter of law that they must not read or pay any attention to the media in the case. However he submitted that this is an early stage in the trial and it would take simply one juror to have diverted from those directions and to have read the article for the damage to have been done.
In response Mr Tinney submitted, firstly, that the directions that I gave to the jury were detailed and thorough and he submitted that the experience of the courts has been that jurors are time and time again shown to be conscientious in adhering to directions of that type.
He further submitted that, if, in any event a juror or jurors had read the article they would not draw the inference that is a matter of concern to the defence in this case, namely that Mr Asling was somehow connected with the death of Mr Blewitt.
Mr Tinney accepts that on the evidence that will be adduced in the trial the jury might well understand that Mr Asling was with Mr Blewitt on the last occasion when Blewitt was seen alive by Ms Stanton in April 2004. However, he submitted that there is no suggestion in the article or otherwise that Mr Asling was responsible for the disappearance and death of Mr Blewitt in the ensuing 12 years.
In particular, Mr Tinney submitted that the jury will not link the charging of Mr Asling with the murder of Kinniburgh in November 2015 with the subsequent finding of Mr Blewitt's body in January 2016. Rather, Mr Tinney pointed out that it will become evident to the jury that Mr Asling was charged with the murder of Kinniburgh because witness P made statements to the police in June and July 2015 implicating him in the murder of Kinniburgh, which was a sufficient foundation for the prosecution to charge him. Thus it is submitted the jury would not proceed further to infer that there was any link between the charging of Mr Asling and the finding of Blewitt's body.
The test that I must apply is whether there is a high degree of necessity for the discharge of the jury in this case. In my view such a course would be necessary if I were to apprehend that there was a risk of unfair prejudice to the accused arising from the article in the Australian newspaper and online such as to occasion a risk of a miscarriage of justice in the case, see for example, R v Boland[1] and Crofts v The Queen[2].
[1][1974] VR 849, 866.
[2](1996) 186 CLR 427, 432, 440.
Yesterday after the jury was empanelled I gave them a series of strict directions. Prominent amongst those directions was a direction that they must not at any time during the trial read, listen to or observe any media publication relating to the case. I gave that direction to the jury in the context of detailed directions as to the duty of the jury to approach its task with an open, fair and unprejudiced mind and by reference solely to the evidence in the case and nothing else. I thus endeavoured to give to the jury not only an explanation but also a direction to that effect in the clearest possible terms.
It is the experience of the courts over many decades, and indeed my own experience, that juries are almost, without exception, conscientious in adhering to that type of direction and cognate directions that are given to them at the commencement of trials. It is one of the great strengths of our justice system that the system is able to trust jurors to adhere to that type of direction.
A critical part of Mr O'Connell's argument lies in the connection that he is concerned that a juror might draw between the charging of Mr Asling in November 2015 concerning the death of Kinniburgh, with the finding of the remains of Blewitt in January 2016, as reported in the Australian newspaper.
In my view, that link is one which I do not consider a juror is likely to draw or even that there is a reasonable possibility that it will be drawn by a juror. The simple fact which will be crystal clear to the jury in this case is that Mr Asling was not charged with the murder of Kinniburgh until after the witness P spoke to the Victoria Police and made statements to them on 22 June and 16 July of 2015. It is, I think, an irresistible inference that it was those statements and witness P's cooperation with the police that was responsible for the charging of the accused four months later. All those facts will come before the jury and indeed will do so in a prominent form.
At the voir dire Mr O'Connell quite properly cross‑examined witness P as to the circumstances in which he made his statements to the police and as to the timing of those statements. Those facts will be prominent because they are an important part of the attack by the defence on the credibility of witness P. Thus at the forefront of the juror's minds will be the fact that it witness P's statements to the police that were responsible for the charging of Mr Asling in this case.
Mr O'Connell acknowledges that, but submits that the fact remains that Mr Blewitt was last seen with witness P and the accused, and that there is then the sequence of events in which witness P made his statements, the accused was arrested and Mr Blewitt’s remains were found.
While in a sense that link can be drawn, in my view there is no risk that a juror would draw that type of link. Rather, as I say, the focus of the jury in this case, particularly given the stage when witness P will give evidence, will be on the timing of witness P's statements and the date on which Mr Asling was charged. At that stage there will be no mention at all of the finding of Blewitt's remains. As I say it will not be part of the evidence.
In the circumstances of the case I do not consider that the link about which Mr O'Connell is concerned would be available to the jury. There is little if any risk that such a link could be drawn by the jury. Rather, as I say, in my view the focus of the debate in this case and of the evidence in this case will be on the other link, that is between witness P's cooperation with the police and the charging of Mr Asling.
In those circumstances, while I have expressed concern about the article, having given the matter careful consideration, I do not consider that there is a risk of unfair prejudice to the accused so as to give rise to a miscarriage of justice. Accordingly, there is no high degree of necessity that is required to justify me discharging the jury. I therefore decline the application.
Having said that, I thoroughly endorse the remarks made by Mr Tinney earlier during argument in this matter. Any journalist who has been engaged in that profession for more than half an hour would well and truly understand that it is extremely hazardous to publish anything about Blewitt, about the accused or about anyone or anything else remotely connected with this case unless that matter has been the subject of evidence before the jury in the case.
The publication of this article has now interrupted the trial of the case and has no doubt caused anxiety to the accused and his advisers. I can see no reason why those details were placed in the article. It was a complete deficiency of professionalism on behalf of the journalist, the editors and the newspaper.
I adjure the members of the media to listen carefully to these words and until verdict to publish no more about anyone or anything connected to the case other than that which is directly the subject of evidence before the jury in the case.
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