R v D'Arcy

[2000] QSC 425

SUPREME COURT OF QUEENSLAND

Indictment No 97 of 2000
[2000] QSC 425

R
v
D’ARCY

Douglas J  17/10/2000

This is an application under s 47 of the Jury Act 1995 to put in place the special procedure for challenge for cause in certain cases. The trial of this indictment is to be heard commencing Monday of next week for approximately a month. The accused is charged with a variety of sexual offences involving minors, both male and female. Three of the counts are counts of rape. They occurred a very long time ago. Something in the order of 35 years.

The applicant was for many years, some 22, a Member of Parliament of the State of Queensland.  During that time and particularly during the time when the allegations in relation to the matters the subject of the trial arose, he received certain adverse publicity which is outlined in the affidavit of Benedict John Power sworn on 30 October this year.
In paragraph 13 of that affidavit, Mr Power swears as to those matters and he says these matters give rise in his view, to likely prejudicial feelings against the accused which will be likely to lead to impartiality on the part of an individual juror or jurors and sets it out as follows:

(a)with regard to Mr D’Arcy’s resignation from his position as a Member for Woodridge on 9 January 2000 the media published the fact that he received the sum of $660,000 in superannuation by virtue of the years he spent as a Member of Parliament and the media publicised stringent criticism of the fact that he should receive such a large amount of money significantly funded by Queensland taxpayers at a time when he still faced serious charges of sexual criminal misconduct allegedly committed at a time prior to his becoming a Member of Parliament.  Indeed the media publicised various views that his superannuation payment should not have been made to him by the trustees of the Parliamentary Superannuation Fund, but rather the payout figure should have been frozen until the outcome of the criminal charges against him so that in the event that he should be found guilty of any of the charges against him then the monies contributed by the Queensland Taxpayers to his superannuation could be permanently withheld from him;

(b)with regard to Mr D’Arcy’s position as a Member of Parliament over many years, the media referred to him as the “Phantom” in that he lived in a luxury mansion at Raby Bay outside his electorate of Woodridge and that he failed to look after his constituents in his electorate and failed to represent them properly in the Parliament to the extent that hardly any of the constituents of the electorate of Woodridge knew that he was their Member, nor could recognise him if they saw him.  The media stated and or implied that he hardly spent any time in the electorate and he was frequently absent from the House when Parliament was sitting; and

(c)with regard to the fact that Mr D’Arcy was a Member of the Beattie Government in 1998 and 1999 and held specific positions as a Member of that Government during that time, and with regard to the further fact that the premier, Mr Beattie, called upon Mr D’Arcy from time to time to resign both because he was being investigated for alleged sexual criminal acts and because of his involvement in the “Net-bet affair”, when Mr D’Arcy refused to resign on the basis that he had done nothing wrong, in either regard, the media publicised the assertion that Mr D’Arcy might “rat” on his labour colleagues by voting with the opposition and thereby force the Beattie Government back into the position of a minority Government dependent upon the support of the two independent Members of Parliament, Mrs Cunningham and Mr Wellington, with the distinct possibility that the Beattie Government could be defeated on the floor of the house and thereby lose Government.

The questions which I am asked to put to the jury are as follows:

1.Having regard to the fact that the accused was a Member of Parliament for the seat of Woodridge for 22 years and also having regard to the fact that after the accused resigned from his position as a Member of Parliament on 9 January 2000, significant media criticism was made of the fact that the accused had been paid his full superannuation entitlement by the trustees of the Parliamentary Superannuation Fund at a time when he was still facing sexual criminal charges, do you believe that you could carry out your duties as a juror impartially?

2.Having regard to the fact that during 1999 whilst the accused was still a Member of Parliament for the State seat of Woodridge, significant media criticism was made of the accused alleging that he had failed over many years to look after the constituents of the Woodridge electorate and to represent them properly in Parliament, do you believe that you could carry out your duties as a juror impartially?

3.Having regard to the fact that during 1999 whilst the accused was still the Member of Parliament for the State seat of Woodridge and held responsible positions as a Member of the Beattie Government, significant media publicity was given to the fact that the Premier of Queensland, Mr Beattie, called upon the accused to resign from Parliament over his alleged involvement in the so-called "“et-bet affair”, do you believe that you could carry out your duties as a juror impartially? and

4.Having regard to the fact that during 1999 whilst the accused was still the Member of Parliament for the State seat of Woodridge and held responsible positions as a Member of the Beattie Government, significant media publicity was given to the fact that the accused who had refused to resign from Parliament on the basis that he had done nothing wrong with regard to the so called “Net-bet affair” might thereby cause the downfall of the Beattie Government, do you believe that you could carry out your duties as a juror impartially?

Section 47 of the Jury Act was enacted after such remarks as passed from Mason CJ and Toohey J in R v Murphy 1989 40 Australian Criminal Reports 461 particularly at 364 and 368 where their Honours stated:

“There may be cases where a reading by the trial Judge of the offending material where it has been published in circumstances that justify an inference that members of the jury are likely to have read it and to have been influenced against the accused will be enough to justify acceding to an application to question potential jurors.”

Section 47 requires that special reasons for inquiry be shown. Much of the criticism of Mr D’Arcy in 1999 and 2000 concerned his conduct as a Member of Parliament and further concerned his conduct as a Member of Parliament in the so called “Net-bet affair”.

The particular matter which deals directly with the offences alleged against him was the fact that he was permitted to take his superannuation payment even thought these charges were hanging over his head.  Other than that, the criticism made of him in the media is the sort of criticism that  Parliamentarians often receive.  It is a sort of criticism that often is washed away by time.

Normally in a criminal case, it is a Judge’s duty, and I intend to carry out that duty, to inform a jury that they must act on the evidence before them and nothing else.  They must be informed that they are to put out of their minds any impressions, apprehensions or views they may have about the accused and any matter concerning any of the offences which have been alleged against him outside the Courtroom.  I do that in criminal trials at the outset, during the trial and in the summing-up.  I intend to do that in this case, perhaps more forcefully than I would do in other cases.

On the other hand, it seems to me that to raise these matters before the jury on Monday of next week could only serve to remind them of the fact that these criticism of Mr D’Arcy had been made in the press so as to make their position even more difficult as to what their view would be.

The Crown does not oppose the application.  To some extent that surprises me but in the end it is a matter for my discretion as to whether or not these questions should be asked.
I am not satisfied that special reasons for inquiry have been shown.  I therefore decline the application.

I order that no report by electronic or written media be made of this application, the evidence, the submissions or my reasons until the trial of Mr D’Arcy has been completed sometime later this year.

***

I am perfectly happy if, at the end of the trial, the media wish to publish the fact that the application was made and refused.

***

I appreciate, members of the media, that I cannot injunct or enjoin the media outside this state but I encourage the media outside this State to follow the same order I have made in Queensland.  Not to do so could endanger the fair trial of Mr D’Arcy and it would be on your head if my order is disobeyed and I would quite clearly bring any member of the media before me, if I can have it shown to me that a breach of my order occurred in Queensland.  That means including re-publication of publication in some other State or overseas.  I hope I have made that clear enough.