R v Dempsey - [2001] VSC 2

SUPREME COURT OF VICTORIA
CRIMINAL DIVISION	Not Restricted

No. 1437 of 2000

THE QUEEN

KATHLEEN LINDA DEMPSEY

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JUDGE:	HARPER, J.
WHERE HELD:	MELBOURNE
DATE OF RULING:	30 JANUARY 2001
MEDIUM NEUTRAL CITATION:	[2001] VSC 2

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CATCHWORDS: Ruling – Criminal trial – Death of an infant – Separate trials for parents of child – Application by the Crown for an order prohibiting publication of a report of the trial of the mother of the deceased until the verdict in the trial of the husband – Supreme Court Act 1986, s.18 – Whether prejudice to the administration of justice – R. v. Glennon (1992) 173 CLR 592 followed – Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms. M. Sexton with Mr. J. Dowsley	Peter Wood, Solicitor for Public Prosecutions
For Kathleen Dempsey	Mr. J. Morrissey	Anthony Isaacs
For Herald & Weekley Times Ltd.	Mr. A. Anderson	Corrs Chambers Westgarth

HIS HONOUR:

On 28 November 2000 I ordered separate trials of the parents of Bo Dylan Dempsey who died on 12 August 1998. Kathleen Linda Dempsey has been charged with the manslaughter of her son; Brendan Dempsey with his murder.

The Crown has determined that Mrs Dempsey should be tried first. It is intended to call her in the case against her husband. In particular the Crown wish to call evidence from her to the effect that Brendan Dempsey confessed to his involvement in Bo Dylan's death. This evidence is, the Crown case would have it, important not only in itself, but also in refuting any suggestion that a confessional statement made by Mr Dempsey to the police was not true. According to the Crown, the confession made to Mrs Dempsey was made a week or so before, and in the same general terms, as that made to the police.

In these circumstances, the Crown has formed the view that it would be inappropriate - and indeed unfair - to call Mrs Dempsey in her husband's trial while she was herself yet to be tried on a charge arising out of the same events as those which led to her husband being accused of murder.

I cannot compel the Crown to alter the order of the two proceedings. There is, however, a danger that if Mrs Dempsey is tried first, then the attendant publicity would so infect any trial of her husband held within a period of months afterwards as to prejudice the administration of justice. He might in the circumstances postulated not receive a fair trial. Conversely, it might be unjust to him to delay his trial for the period necessary to neutralise any prejudicial effect which publicity generated in hers would have on his. This is so because, as I understand her defence, it will include the proposition that Mr Dempsey was, to her knowledge, a man who had a conviction, or perhaps several convictions, for crimes of violence and of whom she had real reason to be afraid.

It was considerations such as these…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Dempsey

Details

AGLC: R v Dempsey [2001] VSC 2
Case: [2001] VSC 2
Decision Date: 30 January 2001

CaseChat Overview and Summary

The case of R v Dempsey involved a tragic incident where an infant had died, leading to the prosecution of both parents. The mother's trial was already underway when the application was made by the Crown for an order to prohibit the publication of any report on the mother's trial until after the conclusion of the father's trial. This application was made under section 18 of the Supreme Court Act 1986, with the aim of preventing any potential prejudice to the administration of justice. The case was heard in the Supreme Court of the relevant jurisdiction.

The primary legal issue before the court was whether the proposed prohibition on publication would effectively prevent any prejudice to the administration of justice. This involved a consideration of the potential impact of media reports on the fairness of the father's trial. The court was required to balance the right to a fair trial against the principle of open justice, as well as to consider relevant precedent, notably R. v. Glennon (1992) 173 CLR 592.

In delivering its judgment, the court recognised the importance of ensuring that each defendant received a fair trial, free from any prejudicial influence. The court determined that there was a real risk that the publication of details from the mother's trial could affect the outcome of the father's trial. This risk was deemed significant enough to warrant the application of the prohibition on publication, following the principles established in Glennon. The court concluded that the order was necessary to safeguard the integrity of the judicial process and granted the Crown's application.

The final orders of the court included a prohibition on the publication of any report or information regarding the mother's trial until after the conclusion of the father's trial, thereby ensuring that each parent would be tried in an impartial environment.

Orders