R v McKinley

[2000] VSC 266

SUPREME COURT OF VICTORIA
CRIMINAL DIVISION	Not Restricted

No.  of

THE QUEEN

v

JULIE KAY McKINLEY

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JUDGE:	COLDREY, J.
WHERE HELD:	MELBOURNE
DATE OF RULING:	13 JUNE 2000
MEDIUM NEUTRAL CITATION:	[2000] VSC 266

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CATCHWORDS:          Crime – Jury – Reference to prior imprisonment and "other problems" of accused – Application for discharge of jury – Granted.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. G. Horgan	Office of Public Prosecutions
For the Accused	Mr. I. Hayden	Ellinghaus & Lindner

HIS HONOUR:

1. The evidence of the witness Kerry Edwards-Milgate referred to the fact that the accused had been in custody.  I had hoped that there might be some outside possibility of linking this evidence to the issue of bail.  But, the way it has come out, I cannot see that as a viable possibility.  What we are left with is that the witness, in effect, has said, "I didn't want him," being her son, "to have contact with Julie," being the accused, "because I knew she had been in gaol previously, and because of other problems I knew of."

1. In the light of that evidence, application is made by Mr Hayden that there exists a high degree of necessity to discharge this jury on the basis that the jury, having heard that material, could not bring unbiased and unprejudiced minds to bear on the issues in this case and that, consequently, his client could not receive a fair trial.  This, it was put, is particularly so, given the narrow issue in this case, namely, whether the lighting of the fire was deliberate or an accident.  Nor could the matter be salvaged by any jury direction.

1. Mr Horgan did not seek to put any contrary submissions on this issue.  He did point out that, although the question eliciting this response was asked by Mr Hayden, this in itself was not a matter that could be conclusive of the issue.  I agree with that.  Indeed there was nothing in the witness's statement foreshadowing such an answer.

1. Regrettably, I have reached the conclusion that, in the circumstances of this case, a high degree of necessity to discharge this jury has been shown.  In doing so I have had regard to the various competing factors, including the

inconvenience and trauma to the witnesses involved, on the one hand, and the shortness of any retrial on the other.  The application will be granted.

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