Director of Public Prosecutions v Griffiths (No 1)
[2024] VSC 264
•20 February 2024
| IN THE SUPREME COURT OF VICTORIA | Unrestricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0061
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| ROLAND GRIFFITHS | Accused |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF RULING: | 20 February 2024 |
DATE OF PUBLICATION: | 22 May 2024 |
DATE REVISED: | 5 June 2024 |
CASE MAY BE CITED AS: | DPP v Griffiths (No 1) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 264 |
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CRIMINAL LAW — Ruling — Psychological support for jurors during trial — Vicarious trauma — Accused charged with murder and intentionally causing serious injury— Allegations accused poured petrol on and set fire to his wife — Audio‑visual evidence — Evidence from child witnesses — Juror discharged due to anxiety associated with nature of the trial — Enquiry made by another juror about psychological support — Support provided — Criminal Procedure Act 2009 (Vic), Juries Act 2000 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | E Ramsay Z Menon | Office of Public Prosecutions |
| For the Accused | D Brustman KC | Contact Lawyers |
HIS HONOUR:
Introduction
Roland Griffiths [‘the accused’] is charged with murdering his wife, Kylie Sheahan [‘the deceased’], and with recklessly causing serious injury to his step‑daughter [‘TJ’]. The accused has pleaded not guilty to the charges.
On Thursday 15 February 2024, a jury of 14 was empanelled to hear this trial. During the empanelment process and before the choosing of jurors, the panel was informed that this trial would involve the prosecution calling evidence that would be potentially confronting. The panel members were instructed to take this into account when considering whether their ability to act impartially might be compromised. This occurred in a context of a short description about the alleged facts of the prosecution case.
Some panel members did apply to be excused, stating that they felt unable to be part of a jury hearing this case for reasons associated with the nature of the charges and the evidence to be shown. These panel members were excused, and the 14 jurors were chosen from the remaining panel members.
Circumstances have now arisen that raise the issue of whether psychological assistance should be provided during the trial to those jurors who were empanelled.
Conduct of the trial so far
[Redacted].[1]
[1]Details in paragraphs 5 to 9 of this ruling have been redacted to protect the privacy of a juror who was discharged, and in accordance with an interim suppression order made by the Honourable Justice Champion on 8 March 2024.
[Redacted].
[Redacted].
[Redacted].
[Redacted].
In the above context, [redacted], the issue of whether the jury can and should be provided with professional counselling or other psychological assistance during the course of the trial now arises.
Nature of the evidence
At this stage, the prosecution case has been opened to the jury by the trial prosecutor. In short, it is alleged that the accused, in the presence of two of his step-children, poured petrol on the deceased in the kitchen of their home while holding her to prevent her from breaking free. He is then alleged to have lit the petrol with a cigarette lighter. The petrol ignited and enveloped the deceased, causing burns to more than 90 per cent of her body. The deceased died four days later after medical treatment was withdrawn, as the burns she suffered were not survivable.
Further, one of the step-children, TJ (who was then 16 years old), received serious burns in the incident. She spent some months in hospital. The overall nature of the case put before the jury can be fairly described as harrowing. Furthermore, as part of the case to be presented, the prosecution seeks to lead evidence from body worn camera footage that was captured when the police attended the scene. By that stage, the deceased had been taken to the front of the house and placed on the nature strip.
I have viewed parts of the footage. It shows a devastating scene which is extremely confronting, chaotic and urgent. The home is shown burning in the background. There are numerous children present. The deceased sits on the nature strip, with her injuries in full view. She appears calm, likely because she was in shock, having been severely burned. She is in the process of dying. The accused is nearby and is shown to be far from calm, and at times he is seen screaming.
On questioning by the court, both counsel have made it clear that the footage should be put before the jury. There is some degree of agreement that it should be shown only to a limited extent. However, it must not be overlooked that there is other confronting evidence to be placed before the jury. The footage must be seen in the full context of the whole of the evidence, and its potential impact on the jury.
The evidence to be called by the prosecution also includes pre‑recorded evidence from four of the deceased children. Two of the children are very young. The other two, one of whom is TJ, are now in their late teenage years. In the case of the older two, I ordered that intermediaries be appointed to assist them to give their evidence.
In short, the material to go before the jury and the overall nature of the case concerns graphic and disturbing events. The scenes depicted and spoken of, including the pouring of the petrol, its ignition and what followed, is capable of being regarded as highly traumatising.
Existing supports available to jurors
In recognition of the fact that jury service may be distressing and involve exposure to traumatic material, Juries Victoria have implemented a Juror Support Program [‘the Program’]. The Program entitles persons to six one‑hour counselling sessions provided by a registered psychologist.
According to the material before the court, it appears that panel members are told, during their induction and before empanelment occurs, that support via the Program is available to them whether they are selected for jury duty or not.
Large posters placed in the lounges used by panel members and jurors state:[2]
[2]See Annexure A for photographs of these posters at the time of this ruling.
Juror Support Program
Need someone to talk to about your jury service experience?
A free professional and confidential counselling support service is available to all who attend jury service, whether selected on a trial or not.
At the time of this ruling, a telephone number at the bottom of each poster was covered. The court was informed by the Juries Commissioner this was because the contact number for the Juror Support Program had recently changed.
Nevertheless, the Program’s details are readily accessible. An internet search using the terms “Juror Support Program” immediately brings up a link to a page about the Program. At the time of this ruling, the page stated, among other things:[3]
[3]See Annexure B for a PDF copy of the website at the time of this ruling.
What you need to know:
·The Juror Support Program is a free, confidential counselling service
·The program offers counselling and support provided by qualified and registered psychologists
·It offers up to 6 one‑hour sessions conducted via telehealth (phone or video)
·It is available to anybody who attends for jury service, whether they are selected on a trial or not
·To make an appointment, click the button below and fill out the linked webform.
If you need urgent support, please call 1300 687 327 and ask to be connected to urgent support under the Court Services Victoria – Juror Support Program.
Under this text is a link to make an appointment with a psychologist. This link appears to be accessible by anyone, regardless of whether they are a serving juror or not. Juror B instructed my associate that she had visited this webpage, but had not made an appointment as she wanted to consult with the court first.
Further, after empanelment, the court can (at its discretion) provide the jury with a document titled “Jury Guide For Criminal Trials” [‘the Jury Guide’].[4] The Jury Guide provides a summary of the role of a juror, an explanation of courtroom procedure and advice on how to conduct deliberations. The Program is mentioned three times in the document. It explicitly confirms that support is available after the trial but is silent on whether the Program can be accessed during the trial.
[4]See Annexure C for a copy of the Guide at the time of this ruling.
I refer to the above simply to highlight that the guidance given to panel members and jurors is opaque regarding when they may access the Program. To some extent, the material is focused towards the time after a verdict is rendered by a jury. However, other parts of the material are silent on the issue of timing and make it, perhaps inferentially, open to conclude that if jurors require assistance during a trial there is no barrier to them contacting the Program and seeking assistance.
Legal principles
In this matter, the issue arises as to whether counselling or other psychological support can and should be provided to a jury during a trial, whether by the Program or other means. This involves considering whether the Act precludes the provision of such support to sitting jurors.
In this regard, section 78 of the Act is relevant:
(1)A person must not—
(a) publish, or cause to be published, any statements made, opinions expressed, arguments advanced or votes cast in the course of the deliberations of a jury; or
(b) solicit or obtain the disclosure by a person who is or has been a juror of statements made, opinions expressed, arguments advanced or votes cast in the course of the deliberations of that jury.
Penalty: In the case of a body corporate, 3000 penalty units;
In any other case, 600 penalty units or imprisonment for 5 years.
(2) A person who is or has been a juror must not disclose any statements made, opinions expressed, arguments advanced or votes cast in the course of the deliberations of that jury if the person has reason to believe that any of that information is likely to be or will be published to the public.
Penalty: 600 penalty units or imprisonment for 5 years.
…
(5)Nothing in subsection (1)(b) or (2) prevents a person who has been a juror from disclosing any statements made, opinions expressed, arguments advanced or votes cast in the course of the deliberations of that jury to a registered medical practitioner or a registered psychologist in the course of treatment in relation to issues arising out of the person’s service as a juror.
In plain terms, the Act provides that a former juror (that is, a juror who has been discharged after a verdict) can disclose matters raised in the course of deliberations to a medical practitioner or a psychologist in the context of treatment concerning issues arising from their jury service.
The question is whether there is any provision within the Act that excludes the possibility of assistance during a trial. In my opinion, the provisions of the Act plainly apply to the deliberations of the jury. However, deliberations are a distinct phase in a trial; the jury is only sent out to deliberate once all the evidence has been heard, final addresses have been made and the judge has delivered the charge. This trial is nowhere near the stage of the jury retiring to consider its verdict, and only one witness has been called and completed her evidence.
In my opinion, reading the Act as a whole, it seems to me that nothing appears to prevent a jury from being provided assistance during the trial if it becomes necessary.
Interstate authorities
There is some case law (albeit limited) from other states that deals with these matters. Of most relevance are the cases of Moore[5] in the Court of Appeal in Western Australia, and Stein[6] in the New South Wales Court of Criminal Appeal. Both were discussed during the course of submissions from the parties. Neither case is directly on point, but it is instructive to see the degree of support voiced by both courts for the proposal that psychological assistance should be provided to a jury during a trial.
[5]Moore v The State of Western Australia [2023] WASCA 156 (Wilson CJ, Hall JA & Mullins AJA) (‘Moore’).
[6]Stein v The King [2023] NSWCCA 324 (Wilson, Fagan & Sweeney JJA).
Moore concerned a sexual assault trial in which the jury were shown “explicit, graphic and confronting” photographic evidence.[7] The jury were warned about this by the trial judge and counsel for the prosecution and defence. The trial judge also directed the jury on multiple occasions that it was important to put any emotional response to the photos aside and not to allow such responses to influence their determination of the issues.
[7]Moore [2023] WASCA 156, [3] (Wilson CJ, Hall JA & Mullins AJA).
Part way through the trial, the jury wrote a note requesting counselling because some of the jurors were having difficulty coping with the evidence. The note described the evidence as “extremely graphic, explicit, sickening and confronting”.[8] The trial judge permitted the jurors to seek counselling, on the basis that they not discuss the details of the evidence with the counsellor.[9] In particular, the trial judge stated:[10]
The second thing to say is that counselling is always available to a juror or jurors at the end of a trial, and I had proposed to make that explicitly clear to you at the very end of the trial when I thank you for your service and discharge you. But I am not going to stand in the way of anyone seeking individual counselling as soon as they feel that they need it, as opposed to waiting until the end of the trial. And the jury officer will provide you with a number of an organisation or an individual that you can call in that regard. The caveat is that of course, having been sworn or affirmed as jurors, as I have told you on a number of occasions, you cannot discuss the evidence or the issues with anyone outside your number.
[8]Ibid [4].
[9]Ibid.
[10]Ibid [41], referring to the transcript of the trial.
Counsel for the defendant later applied to discharge the jury on the basis that the wording of the note created a perception of bias, and that the request for counselling showed the jury were incapable of performing their task. The trial judge refused the application on both grounds.
On appeal, the Court of Appeal was asked to consider whether the trial judge had erred in refusing the application. In a unanimous decision, the Court dismissed the appeal, ruling that the trial judge had not erred. Relevant for these purposes, the Court strongly supported the notion that psychological assistance can and should be provided to juries in cases where extremely graphic, explicit, sickening or confronting material will be presented to them. In particular, the Court stated:[11]
The nature of the evidence was such that an emotional or moral response to it by the jury, in the terms reflected in the note, was to be expected and, indeed, was anticipated.
…
Jurors perform an essential public service and are often called upon to deal with shocking and confronting evidence that is well outside their personal experience. That this task may put jurors at risk of vicarious trauma is unsurprising. Counselling is an appropriate and well‑recognised method of addressing and managing such risk.
[11]Ibid [7]–[8].
The Court went on to make further comments that are apposite in this case:[12]
In many cases, the provision of counselling after the jury has been discharged will be an adequate response to any trauma experienced by the members of the jury. This case was exceptional in the quantity and nature of explicit and confronting material that the jury were required to view. The justice system must be sufficiently adaptable to meet the challenges that arise where juries are required to view such material. As the trial judge correctly noted, the advent of modern technology brings with it a likelihood that juries will be asked to view such material more often. In some cases formal admissions may obviate the need for the jury to view the material. This was not such a case. The nature of the defence case and the lack of any admissions meant that the jury’s viewing of the evidence was unavoidable. In these circumstances, the jury’s request for counselling was understandable and deserving of respect.
[12]Ibid [68].
Further, the following observations were made, about which I simply say that, so far as this Court is concerned, are strongly endorsed:[13]
The modern approach to dealing with trauma is to recognise that seeking counselling is not a sign of weakness or inability, but a recognition that an unpleasant or difficult job may be undertaken more effectively and with fewer long‑term effects for the person concerned if they able to avail themselves of counselling in a timely way. It may safely be assumed that members of the jury, drawn as they are from the general public, reflect these modern attitudes to counselling. Thus, the request for counselling cannot be taken as an indication that the jury, or any of the jurors, considered that they were incapable of doing their job. That this jury requested counselling was consistent with them diligently and faithfully attending to the necessary task, rather than to the contrary. It could not suggest to a reasonable fair‑minded observer that the jury was incapable of discharging their task impartially and in accordance with their oaths.
…
The fact that the jurors, or at least some of them, were having difficulty coping with the evidence does not suggest that they were incapable of doing so. It was simply to express the view that jurors may be assisted in performing their task by obtaining counselling.
[13]Ibid [67], [70].
Analysis
Should support be provided to a jury during a trial?
The Court of Appeal in Moore appeared to make it very clear that it was open for jurors to be provided with assistance whilst they were performing their task, and that such assistance may help them fulfil their duty as jurors.
I take a similar view. Given the Act appears to be silent on the issue, I consider that there is no impediment to making such support available to a jury during a trial in circumstances where the court considers it appropriate. Such circumstances may arise if, like in the present case, graphic or confronting evidence is to be played to the jury and the jury indicate to the court that they would benefit from psychological support.
I also reiterate that the information given to jurors by Juries Victoria may give them the impression that there is no barrier to seeking psychological assistance during a trial (whether privately or through the Juror Support Program). This is even more likely given society’s increasing awareness of vicarious trauma and the growing acceptance of psychological therapy. The courts must bear in mind these expectations.
What support should be provided?
Having concluded that assistance should be provided, it falls to the court to decide what form the assistance should take. At the outset, it appears there are options that can be provided: a group information session which all jurors attend, or private counselling sessions between individual jurors and a psychologist.
Submissions of the parties
The parties have made brief submissions about this matter. The prosecution have submitted that a group information session about managing vicarious trauma should be provided to the jury as a whole.
In contrast, the defence have neither opposed nor supported the provision of a group information session. However, counsel for the accused, Mr Brustman KC, was implacably opposed to the provision of individual counselling sessions between a psychologist and individual jurors. He submitted that any such sessions would not be able to be supervised by the court, and would endanger the impartiality of the jury. I do not think the court needs to go down that path yet, as the requests from the jury have not indicated that individual counselling sessions are needed.
Both parties accept that, if the court is minded to provide a vicarious trauma information session, clear guidelines must be formulated to ensure the jury remains impartial.
Evidence before the court
Evidence was called from Shae Meddings, the National Risk and Assessment Manager of Converge International, the provider of vicarious trauma training to Court Services Victoria.
During her evidence, Ms Meddings outlined what could be provided to the jury by way of a vicarious trauma information session. She stated that an information session could be delivered by her via video link in the next couple of days.
Ms Meddings conceded that her organisation has never provided assistance to jurors during the course of a trial. Her experience seemed to focus mainly on providing juror support and assistance post‑verdict. However, she stated that she believed an information session could be designed and delivered appropriately, if the court and parties provided guidelines concerning the session’s parameters.
In relation to the effect of such a session on the impartiality of the jury, Ms Meddings appeared confident that an information session might assist the jury in maintaining their impartiality during the course of difficult evidence. She was of the opinion that the session would not compromise the nature of the trial process.
In summary, the ultimate effect of Ms Meddings’ evidence was that an information session could be provided, and that it would assist the jury in undertaking their task impartially.
Conclusion
What I propose in the circumstances, being of the opinion that nothing prevents assistance from being provided or offered to a jury during a trial, is to do the following. First, I will inform the jury that one juror has been discharged, and that another has asked what assistance may be provided in the way of psychological support. Second, I will instruct them that support is available, in the form of an information session on vicarious trauma. I will then invite the jury to consider whether they would benefit from this.
Unlike Moore, the jury have not asked directly for assistance from the court. In Moore, they passed a note explicitly seeking counselling. In the present circumstances, the jury have informally indicated that they may need assistance, but it appears they are not entirely certain of what assistance is available or how they might seek it out. A conservative approach is to provide an information session in a collective sense, with the jury all participating.
One advantage of providing group assistance is that the court will maintain some control over the process. The court can pre‑approve the content to be provided, and set guidelines with the consultation of the parties.[14] At a minimum, the facilitator will be instructed that the purpose of the session is to provide information to the jury about vicarious trauma, with the intention of equipping the jury with tools to process their emotional responses to such material, so that they can assess the evidence with independence and impartiality. The jury will be reminded of the direction given to them about impartiality and it will be reiterated that they cannot speak to the facilitator about the evidence.
[14]See Annexure D for the finalised guidelines.This document was provided to Shae Meddings, the facilitator of the information session.
If the jury indicates they would benefit from an information session on vicarious trauma, it can take place over two hours in this building.
Postscript
On the afternoon of Tuesday 20 February 2024, the jury was informed of the availability of a vicarious trauma information session in the following terms:
[Redacted.][15]
[15]Details in paragraphs 53 and 54 of this ruling have been redacted to protect the privacy of a juror who was discharged, and in accordance with an interim suppression order made by the Honourable Justice Champion on 8 March 2024.
The jury were given some time to privately consider the matter. They indicated, [redacted].
As a result, the evidence continued over the following day, and at 2.00pm on Wednesday 21 February 2024, the jury attended the information session in a meeting room with video conference facilities. Ms Meddings, who had been provided with the guidelines in Annexure D in advance, facilitated the session via videolink. Besides attending to set up the videolink, my associate was not present during the session.
The following day, on Thursday 22 February 2024, Ms Meddings was called by the prosecution to give evidence about what had occurred during the information session. Ms Meddings stated that a two‑hour information session on vicarious trauma and resilience had been delivered, in which the jury were informed about:
(a) the definition of trauma and vicarious trauma;
(b) the signs and symptoms of vicarious trauma;
(c) risk factors and protective factors in relation to vicarious trauma; and
(d) general resilience strategies.
Ms Meddings confirmed that she presented the talk with a PowerPoint presentation, a copy of which was provided to the Court. She indicated that she did “the great majority of the talking”, and that any comments from the jury were limited to ideas for self‑care activities (for example, undertaking exercise). Ms Meddings otherwise confirmed that there “wasn’t much interaction from the jury”. She gave sworn evidence that no discussion occurred about the evidence in the case, that no members of the jury asked questions about the case, and that no enquiries were made by any jurors about the availability of individual counselling.
In the circumstances, the parties and the Court were satisfied that the guidelines for the session had been adhered to, and that the jury were appropriately instructed in ways to impartially process potentially traumatic material.
ANNEXURE A
Juror Support Program posters
(as at 20 February 2024)
ANNEXURE B
Juror Support Program website
(as at 20 February 2024)
ANNEXURE C
Jury Guide for Criminal Trials
(as at 20 February 2024)
ANNEXURE D
Guidelines for Juror Information Session
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