DPP v Towle (Ruling no 3)

[2008] VSC 41

IN THE SUPREME COURT OF VICTORIA Not Restricted

CRIMINAL DIVISION

No. 1460 of 2007

DIRECTOR OF PUBLIC PROSECUTIONS

v

THOMAS GRAHAM TOWLE

Ruling No. 3

JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF RULING:	20 February 2008
CASE MAY BE CITED AS:	DPP v Towle (Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2008] VSC 41

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Criminal law and procedure – Culpable driving causing death – Speeding alleged – Jury trial – Publicity campaign by the Transport Accident Commission (Vic) in relation to speed and fatalities – Jury direction in relation thereto.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M Gamble SC with Ms A Forrester	Office of Public Prosecutions
For the Accused	Mr R Richter QC with Ms K Blair	Victorian Aboriginal Legal Service

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Ruling No. 3

HIS HONOUR:

1. Yesterday I raised with counsel the fact, as I then apprehended it to be, that an advertising campaign by the Transport Accident Commission (the "TAC") is to commence today in relation to speeding and driving and the effects of it.

1. This morning, full scale advertisements concerning speeding and fatalities have appeared in the various newspapers and, as I understand it, tonight on television a series of pre-recorded advertisements are to commence.  Today I have read the written advertisements and yesterday at 4.30 p.m. I viewed the format of the pre-recorded television advertisements. 

1. I think the relevant factors are these:

1)None of the advertising or publicity refers to the matter in this case, directly, in terms, or indirectly.

2)None shows driving, or impacts, or crashes.

3)Plainly the material is designed to have an emotional impact and that is appropriate and proper.

4)My function is a vital but limited function and that is to ensure the fair trial of the accused. 

1. I have got no doubt that the accused will receive a fair trial at the hands of the jury.  I will give the jury a direction in the morning to ensure that they judge the case on the evidence in this court and are unaffected by the publicity campaign which is presently being undertaken.

1. It is not appropriate, in my view, for this Court to interfere in public affairs or in the responsible exercise of public function.  Were I minded to interfere by requesting or directing the postponement of this campaign, I would have had the Transport Accident Commission before me to give it locus to make submissions; but I am certainly not persuaded that I should interfere in any way.

1. I agree with Mr Richter that it is appropriate to remind the jury that there can be multi-factorial elements in deaths on the road, but I do not propose to go into any detail as to that. 

1. What is put in the advertisements - "Speed Kills", "Speeding Drivers are the Biggest Killers" and like matters - are matters which are regularly in the public domain and I do not propose to interfere with the campaign.  I will give the jury a direction in the morning.

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CERTIFICATE

I certify that this and the preceding page are a true copy of the reasons for Ruling of Cummins J of the Supreme Court of Victoria delivered on 20 February 2008.

DATED this twentieth day of February 2008.

Associate

[ADDENDUM:  jury direction 21 February 2008 attached.]

Good morning, Mr Foreman and members of the jury.  The trial's been proceeding very efficiently, Mr Foreman and members of the jury, and this morning we're onto the last couple of witnesses at the scene, one young person and one older person, and we're then apparently moving on to ambulance personnel, and police, and things of that sort.  That's gone very well, ladies and gentlemen, and I commend all the lawyers and the persons organising things for things being done so efficiently.

You may have noticed, ladies and gentlemen, in the print media and the electronic media overnight a publicity promotion by the TAC, the Transport Accident Commission, concerning speeding and fatalities.  A number of past events are referred to in that media publicity.  The media publicity, of course, does not relate to this case.  The TAC has a perfectly proper function in relation to the public at large, nothing to do with this case.  Your function, ladies and gentlemen, is to decide this case, not to concern yourself with the public issues in the TAC campaign.

Don't be affected or influenced by the TAC media campaign in any way in deciding this case.  You decide this case on the evidence in this case, as each one of you has sworn or affirmed to do, and I'm quite sure that is exactly what you will do, and put aside completely any       outside publicity.

As you appreciate, ladies and gentlemen, although this campaign is about speeding, there have been various other campaigns.  There's been a campaign about drunk driving, there's been a campaign about fatigue, things of that sort.  So there are various factors which the campaigns have been about over the years. 

The other matter is this, ladies and gentlemen.  Some of the advertising is quite emotional, which again is perfectly appropriate for an advertising campaign, but you, the jurors, of course, do not decide this case on emotion.  You decide it on evidence and analysis, as you have been correctly told.  Don't be affected by any outside considerations, ladies and gentlemen.  I'm sure you'll decide the case as judges, which is what you are.  You decide this case fairly, calmly, analytically and solely on the evidence.

The TAC function is quite and totally separate from your function.  You decide this case on the evidence in this case, unaffected by outside publicity, ladies and gentlemen, and I'm quite sure that's what you'll do.