R v Croxford

[2009] VSC 518

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT WODONGA

CRIMINAL DIVISION

No. 1406 of 2009

THE QUEEN
v
RONALD CROXFORD	Accused
and
ROCKY DOUBLEDAY

Ruling No 2
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JUDGE:	COGHLAN J
WHERE HELD:	Wodonga
DATE OF HEARING:	21 July 2009
DATE OF RULING:	21 July 2009
CASE MAY BE CITED AS:	R v Croxford & Anor
MEDIUM NEUTRAL CITATION:	[2009] VSC 518

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CRIMINAL LAW – Murder – Co-Accused – Application to discharge jury – Prejudicial effect of prosecution opening and media reporting – Opening remarks to jury regarding nature of evidence – Matters relevant to exercise of discretion to discharge – R v Knape [1965] VR 469 – R v Boland [1974] VR 849 – Webb & Hay v R (1994) 181 CLR 41.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. O’Doherty	Office of Public Prosecutions
For the Accused Croxford	Mr G. Georgiou	Mario Vaccaro
For the Accused Doubleday	Mr G. Meredith	Kerry Clancy

HIS HONOUR:

1. At the conclusion of evidence of the witness Ellie Rose Plunkett, Mr Meredith of counsel who appears for the accused, Ricky Doubleday, made application to discharge the jury.  The application was made on the basis that the witness had failed to give evidence which had been opened by the prosecution and further, which had been reported in detail on the front page of The Border Mail on Wednesday 29 July 2009.  A copy of that press report has been placed on the Court file.

1. Although the report failed to name Ms Plunkett as the relevant witness, it was reported that the accused Doubleday had yelled out to the accused Croxford “Smash him and kill the bastard”, or words to that effect.  In the event, Ms Plunkett did not give that evidence.  Counsel contended that the combined effect of both the content of the Prosecution’s opening and the press report was so prejudicial as to warrant the discharge of the jury.

1. In detailed opening remarks to the jury, I instructed its members to accord no notice to what may appear in press reports.  Those remarks specified that evidence in the case was made up exclusively of what they gleaned from the courtroom and not otherwise.  Further, I instructed the members of the jury that the prosecutor’s opening remarks were not in fact, evidence.

1. There has been no complaint concerning the content of the prosecutor’s opening, and this is likely due to Ms Plunkett including among her statements to the police, a claim she heard words similar to those currently under consideration uttered by the accused.  She did not, however, give that evidence when examined.

1. Such circumstances require consideration of the proposition that a jury should not be discharged without verdict unless there is a high degree of need.[1]  Ultimately, discharge of the jury is  a matter which lies within my discretion.

   [1]            See R v Knape [1965] VR 469, R v Boland [1974] VR 849 and Webb & Hay v R (1994) 181 CLR 41.

1. In view of the strong direction which I have already given, and the opportunity for further directions I am yet to give, I am not satisfied that any potential prejudice which is capable of arising is to such a degree as to warrant the discharge of this jury.

1. I have suggested to counsel in argument that the opportunity arises to provide the jury with a further direction a this stage.  Counsel was opposed to my doing so, on the basis it was capable of unduly emphasising the content of what appeared in yesterday’s newspaper.  I see the wisdom of that, and will leave any further direction on the matter until my final directions to the jury.