Director of Public Prosecutions v Gillespie (Ruling No 1)

[2012] VSC 552

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0114 of 2011

DIRECTOR OF PUBLIC PROSECUTIONS

V

RODNEY GILLESPIE

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 October 2012
DATE OF RULING:	31 October 2012
CASE MAY BE CITED AS:	DPP v Gillespie (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2012] VSC 552

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CRIME – Trial – Discharge of jury – Juror’s past acquaintance with accused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M Rochford SC	Office of Public Prosecutions
For the Accused	Mr R Richter QC and Mr Z Zayler	Melasecca Kelly & Zayler

HIS HONOUR:

1. I will not recite again the facts which have been related to me by my Tipstaff, Mr Richards, which I have advised counsel in court, and which I have confirmed with the relevant juror, that is, the knowledge by the juror of an acquaintance which she has had five years ago with the accused man and with his family.  It is clear and I think beyond dispute that that juror must be discharged from service in this case. 

1. The issue which is raised by counsel is as to whether I should discharge the balance of the jury. 

1. In my view, I should and I have reached that conclusion for these reasons.  First, it is clear that the juror in question has, in fact, expressed her views concerning the accused man to the rest of the jury.  She has not only expressed them but also given some detail relating to her background connection with him. 

1. In that way the rest of the jury will not be able to assess the case and assess the evidence in the case without putting out of their minds the endorsement which that juror has given to them concerning the accused man. 

1. Even if the jury were able to do that, and my experience and the experience of this court and all courts is that juries are particularly conscientious in adhering to directions, nevertheless it would seem to me to be inconsistent with the directions which I have already given to the jury if I were to permit them to remain on the case now that they have heard matters relating to Mr Gillespie which have not been given through the witness box.  That would be detrimental to the system of justice.  It would be inconsistent with my instructions and it could have potentially a disastrous effect on the fair trial of Mr Gillespie. 

1. In addition to that, of course, is the high standard of justice which this court seeks at all times to administer.  It would be quite inconsistent with that standard, which we strive to achieve, if I were to permit the jurors to remain having received what sounds to me like being a ringing endorsement of Mr Gillespie's character from a juror who no doubt they trusted and believed. 

1. It does seem that character will be in issue, although what has been put to me by Mr Richter is that it may not be substantially in issue.  But that is not the point.  The fact of character will be a material fact on which the defence will no doubt seek to rely and legitimately so.  However, that being the case, it is most important that the jury are only apprised of matters relating to Mr Gillespie's character through the witness box and not in the way in which they have learnt of them. 

1. Finally of course there is the matter relating to the incident at the view.  I must say, and I agree with Mr Rochford, that there is a real risk that a juror or indeed the jury could well draw an inference adverse to Mr Gillespie relating as to what they saw.  In saying that I make no accusation and I certainly do not infer at all that Mr Gillespie was responsible for what occurred at the view.  But the fact is that the jury unbeknown to us may well draw an inference adverse to him.  If they did that, then Mr Gillespie would not have a fair trial and therefore it would not be a trial according to law. 

1. For those reasons, although it is most regrettable that we have now had two days including a view and we would need to discharge a jury, in my view there is no alternative.  For that reason I conclude that I must discharge the whole of the jury.