R v Fitzpatrick (No 3)

[2019] NSWSC 972

Supreme Court

New South Wales

Medium Neutral Citation:	R v Fitzpatrick (No 3) [2019] NSWSC 972
Hearing dates:	1; 2; 3; 4 July 2019
Date of orders:	04 July 2019
Decision date:	04 July 2019
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Refuse application to discharge jury
Catchwords:	APPLICATION TO DISCHARGE JURY – Existence of media reports concerning trial – depiction of accused in custody – whether a real risk exists that a fair trial can be had – whether in viewing the news report jury members will be prejudiced in their decision making process – held directions to jury obviate the risk of an unfair trial – application to discharge jury refused.
Category:	Procedural and other rulings
Parties:	Regina (Crown) Paul John Fitzpatrick (Accused)
Representation:	Counsel: J. Tunks (Crown) D. Price (Accused)   Solicitors: Solicitor for Public Prosecutions (Crown) Conaghan Lawyers (Accused)
File Number(s):	2017/376874

Judgment

1. Mr Fitzpatrick is standing trial here in Bathurst for the murder of John Burrows. Mr Burrows was killed on 24 July 2015 when what has been referred to as an improvised explosive device exploded in his face in a laneway in Portland adjacent to the premises where he parked his car during winter months.

2. There is no doubt that someone murdered Mr Burrows. It would defy common sense to come to any other conclusion. The real and substantial issue for determination in the trial then is whether Mr Fitzpatrick is the perpetrator of that obvious crime.

3. He has at all times denied any involvement and maintaining his innocence. This is the fourth day of the trial but effectively only the second day upon which the jury have been receiving evidence. The first day was taken up with the resolution of legal issues. The second day involved the empanelment of the jury and my opening direction to them. At the completion of my opening direction at the request of counsel I adjourned the case to enable them to continue their discussions to streamline the expected course of the trial and complete their preparation for what is estimated to be a trial of four weeks duration.

4. The third day, yesterday, involved the opening of the learned crown prosecutor, the statement of issues by learned defence counsel and the evidence of a number of lay witnesses principally concerned with events surrounding the detonation of the explosive device and its immediate aftermath.

5. The officer-in-charge was also called for the purpose of introducing into evidence the aerial drone footage of the blast scene and surrounding area, which was recorded by another officer, and also the ISRAP footage, again recorded by another officer. The officer-in-charge’s evidence was a convenient way of introducing this non-controversial evidence before the jury.

6. At the completion of the day’s hearing yesterday I gave the jury my admonition as to their conduct overnight. Amongst other things I said this at transcript 132.10:

“Probably it’s best to avoid media reports about the case if there are any. So if something comes on the news, maybe walk out of the room. If something is in the paper tomorrow don’t read it. Journalists do a terrific job in trying to give an objective report and a fair report about what happens in court. But obviously space requirements are such that they can’t report everything and they’re not even obliged to report everything. You’ve heard everything that’s been going on in court and you’re aware of it, so just avoid media reports about the case if there are any.”

In events which have occurred it is possible I overstated the capacity of journalists to do a terrific job.

7. While the jury were still members of the panel, before they were empaneled I conventionally spoke to the panel about the need to be impartial, independent and to keep an open mind about the case until they had heard all of the evidence, all of the argument from counsel and my directions as to law. Concerning media reports and other out-of-court information I said this (21.20-50T):

If when you hear the short summary of the case you feel that there’s something about the case that will interfere with that ability [to keep an open mind] you’ll need to let me know. “Something about the case” might be something you have read about it or something you have heard about it on the television or radio. I’m very conscious, so must you be, of the consideration that Mr Burrows’ death and the events surrounding his death occurred in Portland only a comparatively short distance from Bathurst and it may be that the case has received publicity locally.

It may be that it has been the subject of conversation when you’ve gone about your ordinary daily lives. The fact that you have heard news reports or read news reports in the paper or the fact that people might have discussed these event does not, of itself, mean that you can’t keep an open mind about the issues in the trial.

It’s common in cases like this - it’s common that murder cases - receive a good deal of publicity in the press and on the TV even during the stages of the police investigation. Can I assure you that jurors in New South Wales virtually every day of the week come to Court where they might have heard something about the case in the way I have been describing.

Let me say that the requirement is that you put completely out of your mind - that you put completely to one side - anything you might have heard about the case or anything you feel you know about the case for the purpose of your work as a juror.

Can I repeat what I have already said, that jurors do this every day of the week and let me repeat you may have heard something about the case but what is essential is that if you have some prior knowledge - or feel you have some prior knowledge obtained from the media or from general interest expressed by other members of the community - the essential thing is that you put it out of your mind and that, as I have said, you decide the case only on the basis of the evidence in the trial.”

8. That statement was part of a longer statement dealing with the qualities necessary for jury service and following the completion of my longer statement a number of members of the panel applied to be excused on the basis that they could not keep an open mind for one reason or another. Those persons were duly excused. I acknowledge that in some cases the basis of the application was that they were relatives of some kind of the Burrows family. However, none of the present jurors, having had that explanation from me, felt any need to seek to be excused. From that I infer that none of them felt that they could not put out of their mind news reports and other information that they had already received or had been subject to in the course of the time when this case has been pending.

9. I have made this long introduction because Mr Price of learned counsel who appears for Mr Fitzpatrick has made an application for a discharge of the jury and by implication, I think, an adjournment of the trial to some later time because of a news report in relation to the matter which appeared on the Nine Network both locally and in Sydney last night.

10. I am informed by Mr Price that a news report, if I can call it that, was shown on the local news at 4.30 PM and again at 6.30 PM or thereabouts. And that a somewhat perhaps shortened version of the same report was broadcast in the main Channel Nine news from Sydney at 6pm.

11. The reporter in relation to the matter, who I acknowledge may not be responsible for the whole compilation of the news story that was broadcast, is a very experienced journalist who has the designation of senior crime editor or such like.

12. The further inquiries made by Mr Price or his instructing solicitor, Mr Long, indicate that, notwithstanding the conversation Mr Price had with the journalist when she stated that the story would be taken down, it still appears in various places on the internet which I think is the nature of that particular many headed beast and articles appear on the journalist’s own twitter account.

13. A version of the story that was broadcast was played in court this morning and a number of concerns about the article which have been raised with me by Mr Price. The principal and major concern is that footage was shown of Mr Fitzpatrick, who is in custody, on remand, bail refused, being conducted from the court building by corrections officers, handcuffed, and no doubt, into a prison transport vehicle.

14. I interpolate that some effort must have gone into obtaining that footage. It could hardly have been obtained inadvertently. It must have been deliberately obtained because the particular area where the cells are located at the Bathurst Courthouse, at the rear of the courthouse, is surrounded by a high wall. It is quite unlike the situation, say, at the King Street complex where the area where persons are brought from court to prison vans is clearly visible from St James’ Road. It is apparent that the camera operator must have used a ladder or the like to hold a television camera over the wall, or above the height of the wall, to obtain that footage. As I have said, it is quite clear, and it would have been clear to anyone looking at that footage, that Mr Fitzpatrick is in custody.

15. The story also for some reason, which I am finding difficult to understand myself, given it is supposed to be a fair and accurate report of the trial, contained old footage of Mr Fitzpatrick’s arrest where in accordance with police powers and practice he was taken into police custody in handcuffs. There was also other footage of a police media conference, again it is hard to understand why that was included given what was supposed to be a full and fair report of the trial, where police, as occurs of course, were explaining their investigation and I infer the circumstances of the arrest to media at the same time displaying various pieces of real evidence that had been gathered in the course of the thorough investigation of the case, showing, what the police and the prosecution allege is, the IED and other matters or items associated with it.

16. The learned crown prosecutor tells me that material will be tendered in due course but it has not been tendered yet, although a full description of the IED, I think I can say, was certainly given during the course of Mr Crown’s opening address.

17. Finally there is some footage from the drone recordings which have been tendered and are within the power of the Court. But no permission was sought from the Court to include that material in any news report about the trial. All of this is very unsatisfactory.

18. I have received information from the sheriff officer that at least one member of the jury reported to the court officer that he or she had seen one of the news reports last night.

19. All of this, as I have already said, is unsatisfactory in many ways. But the question for me is whether the circumstance that this news article was broadcast and is still available on the internet is such that I am satisfied that there is a real risk that a fair trial can no longer be had. At a practical level, which is the level at which I must operate, that comes down to a question whether, on the assumption that the jurors have seen the news report, it will prejudice them in their decision-making, notwithstanding the oath or affirmation that each of them has taken to render a true verdict in accordance with the evidence; and notwithstanding the reality upon which superior courts operate, that jurors do adhere to the directions of law that trial judges give them for the discharge of their onerous and important duty.

20. As I have said, the main focus is the obvious picture presented that Mr Fitzpatrick is in custody. Now I accept as a matter of practice that trial judges and experienced counsel avoid drawing attention to the fact that an accused person is in custody on remand. The reason for that is a concern that the jury might misuse that information, reasoning impermissibly, that, well, if the accused is being held in custody he must be guilty of the offence with which he is charged.

21. Naturally the fact that a person is on remand comes to a jury’s attention in many different ways in criminal trials, including murder trials. Sometimes, much to the consternation of defence counsel, an accused person shows up in prison greens, with much scurrying around to try and obtain some other clothing, if the accused person with don it. But more frequently, it comes out because there is prison informer evidence, or evidence of prison telephone interceptions or evidence that police visited the accused person in prison. There may also be a problem with views: either explaining why the accused person is in the company of correctional officers, or explaining the accused person’s absence.

22. These are all matters which when they arise are dealt with by way of judicial direction. I have already said that I have both generally to the jury panel, and specifically to the jury, given directions about ignoring, preferably avoiding exposure, to media reports. These are very conventional directions and they are not special directions given for the particular circumstances of this case. As I have said, superior courts proceed on the basis that juries understand and follow those directions, as they follow other legal directions that the trial judge gives.

23. Murder cases are of very significant importance, because of the high stakes for everyone involved, especially the accused person. Conviction means, inevitably, a long custodial sentence. However, all criminal trials are of importance and the courts treat the liberty of all persons charged with criminal offences, be they low, or higher, on the scale of criminality, as being of importance. Everyone charged with an offence is entitled fundamentally to a fair trial. Everyone is entitled to the benefit of the presumption of innocence. And juries are, of course, reminded frequently throughout the trial of the accusatorial nature of the criminal process and the onus and standard of proof resting upon the Crown.

24. It is quite clear from the news article played in Court today that that is a compilation of other articles which have been broadcast at earlier points in time, including footage obtained over the last couple of days. It may well be that the jury has seen the earlier footage and have put that out of their mind in accordance with the directions I have given them.

25. There is also the practical consideration that given the ubiquitous nature of the internet, even were I to discharge this jury, any jury empanelled next week would, on the assumption this jury is tainted, be equally tainted. Any jury empanelled in a few months might likewise be tainted, because of the difficulty of eradicating offending material from the internet.

26. I said earlier that I would assume that most or all of the jury have seen the report, because if it is only one person, and I can identify that person, I suppose I could continue with 11 jurors. Although at this stage one would be reluctant to do so given we at an early stage of the proceedings. But in my judgment, notwithstanding the proper nature of the application made by Mr Price, and notwithstanding the consideration that the circumstances that have arisen are unsatisfactory, as I have described them, I am of the view that a fair trial can be had by directing the jury in this way:

1. first, by re-emphasising the need to put media reports out of mind;

2. secondly, by explaining to the jury that in serious cases, and in particular in murder cases, it remains at a practical level exceptional for the accused person to be granted bail and that they should not draw any adverse inference from the circumstance that he is in custody; and

3. thirdly, by re-emphasising in that context the presumption of innocence and the real significance of the onus and standard of proof beyond reasonable doubt.

I propose to give these directions when the jury return to court.

27. I said this morning that the exchange between me and Mr Price would be forwarded to the news organisation and the journalist concerned, and that will occur when the transcript is available. I will also cause this judgment, once it is obtained and revised for typographical errors, to be forwarded to the news organisation and the journalist for their information with a direction that it is not to be further published until after the return of the jury’s verdict.

28. For these reasons I refuse the application to discharge the jury.

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Decision last updated: 01 August 2019