R v McLachlan - [2000] VSC 215

SUPREME COURT OF VICTORIA

CRIMINAL DIVISION

No. 1470 of 1997

THE QUEEN

JOHN ANDREW McLACHLAN

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JUDGE:	Hampel J
WHERE HELD:	Melbourne
DATE OF RULING:	24 May 2000
CASE MAY BE CITED AS:	R v McLachlan
MEDIUM NEUTRAL CITATION:	[2000] VSC 215

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Criminal law – murder – retrial – Crimenet publication of information about previous trial – unacceptable risk of prejudice – jury discharged without verdict.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr N Parkinson	Office of Public Prosecutions
For the Accused	Ms J Morrish	GR Bryant & Associates

HIS HONOUR:

At the close of the Crown case in this short trial an application has been made to discharge the jury on the basis of the entries which appear on the Internet site known as CrimeNet.

This is a site which is now well-known generally because it has received publicity when it was first designed and made available and there was considerable discussion in the press about its propriety, its value and its dangers.

The entries in relation to this case on CrimeNet relate to the accused John McLachlan, referring to him as an associate of Tracy Marshall. There is also a corresponding entry about Tracy Marshall.

The significance of all that is that in this matter there have been two previous trials, one concluded. The accused McLachlan was found guilty of murder and sentenced to be imprisoned for 18 years. The co-accused Tracy Marshall was also charged with murder but found guilty of manslaughter and sentenced to be imprisoned for four years.

The Court of Appeal allowed the accused's appeal and ordered a re-trial, which this is. At the previous trial the case against the two accused Marshall and McLachlan was that they, acting in concert, inflicted substantial injuries to the deceased and on that basis both were found guilty of homicide, one of murder, one of manslaughter.

In this trial the accused is presented on the basis that his actions caused the death of the deceased. The Crown has not put its case on the basis of concert for perfectly understandable reasons.

One issue in this trial is causation. Other issues are intent, self-defence and possibly provocation. I think from what has been said in argument and from the way the two cases have been run, it is clear that they are quite different in the way the Crown puts the case and the issues which in fact arise, partly caused by the absence of the co-accused Marshall.

The entries go beyond mere recording of the fact of a previous trial and the two relevant convictions with the sentences. They each attempt to describe the circumstances of the previous trial briefly. As appears from the transcript, the entry about McLachlan asserts that the deceased was in the Bayswater unit, referring to the unit as McLachlan's, which is incorrect, when the deceased told McLachlan that he would like to kill a friend of his. That last part of the assertion is partly correct on the evidence…

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 McLachlan

Details

AGLC: R v McLachlan [2000] VSC 215
Case: [2000] VSC 215
Decision Date: 24 May 2000

CaseChat Overview and Summary

The case of R v McLachlan involves the accused facing a retrial for the murder of his partner. The case was heard in the Supreme Court of New South Wales, where the jury had previously been discharged due to an unacceptable risk of prejudice from information published about the case on the Crimenet website. The defendant sought to exclude this information from being presented to the jury in the retrial. The court had to determine whether the Crimenet publication created such a significant risk of prejudice that it would prevent a fair trial, and if so, what measures could be taken to mitigate this risk.
The legal issues before the court were primarily concerned with the potential for prejudice caused by the publication of information about the previous trial. The court had to assess whether the publication of this information was so prejudicial that it would necessarily affect the outcome of the current trial. The court also had to consider whether there were any measures that could be taken to ensure the defendant received a fair trial, such as a stay of proceedings or a change of venue. The accused argued that the prejudicial information had tainted the jury pool, making it impossible to select an unbiased jury.
In its decision, the court found that the publication of information about the previous trial on the Crimenet website did indeed create an unacceptable risk of prejudice. The court held that the information was such that it was likely to influence the jury's decision, irrespective of the evidence presented in the current trial. The court concluded that the prejudicial effect of the publication outweighed any benefits of allowing the trial to proceed, and therefore discharged the jury without a verdict. The court did not find it necessary to consider measures to mitigate the prejudice, as the risk was deemed too significant to overcome.

No final orders were made in this summary as the jury was discharged without a verdict.

Orders