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R v McNeil

R v McNeil

Case [2015] NSWSC 357 2 April 2015

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Supreme Court

New South Wales

Medium Neutral Citation: R v McNeil [2015] NSWSC 357
Hearing dates: 30 March 2015
Decision date: 02 April 2015
Before: Johnson J
Decision:
(a) The Applicant’s Notice of Motion filed 30 January 2015 is dismissed.
(b) An order is made that there be no publication of the listing of the Applicant’s trial.
(c) An order is made that there be no publication of the name of the Applicant, with the trial of the Applicant to be described in any court list as “R v AA”.
(d) Orders (b) and (c) above are to remain in force until such time as a different order is made by the trial Judge.
(e) An order is made that there be no publication of this judgment or of the evidence and submissions made on the application for Judge-alone trial, until such further order of the Court as may be made after completion of the trial.
Catchwords: CRIMINAL LAW - application for judge-alone trial - applicable principles - interests of justice test - Applicant charged with murder and assault - whether adverse extensive media publicity will adversely affect Applicant’s trial - some 14 months between end of extensive publicity and start of trial - steps available to guard against electronic accessing of previous adverse media publicity - role of intention and credibility issues in this case - application dismissed
Legislation Cited: Court Suppression and Non-Publication Orders Act 2010
Crimes Act 1900
Criminal Procedure Act 1986
Criminal Procedure Act 2004 (WA)
Jury Act 1977
Courts and Crimes Legislation Further Amendment Bill 2010
Crimes Amendment (Intoxication) Bill 2014
Cases Cited:
AK v Western Australia [2008] HCA 8; 232 CLR 438
Attorney General (NSW) v John Fairfax and Sons Limited (Court of Appeal, 21 April 1988, unreported, BC8802019)
Attorney General (NSW) v John Fairfax and Sons Limited (Court of Appeal, 24 June 1988, unreported, BC8801793)
Attorney-General (NSW) v John Fairfax and Sons Limited and Bacon (1985) 6 NSWLR 695
Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143
Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Limited (1937) 37 SR NSW 242
Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim [2012] NSWCCA 125; 83 NSWLR 52
Landsman v R [2014] NSWCCA 328
Montgomery v HM Advocate [2003] 1 AC 641
R v Abrahams [2013] NSWSC 729; 230 A Crim R 74
R v Belghar [2012] NSWCCA 86; 217 A Crim R 1 at 25
R v Coles (1993) 31 NSWLR 550
R v Dean [2013] NSWSC 661
R v Jamal [2008] NSWCCA 177; 72 NSWLR 258
R v K [2003] NSWCCA 406; 59 NSWLR 431
R v King [2013] NSWSC 448; 228 A Crim R 406
R v Perry (1993) 29 NSWLR 589 at 594
R v Simmons; R v Moore (No. 4) [2015] NSWSC 259
R v Stanley [2013] NSWCCA 124
R v Villalon [2013] NSWSC 1516
Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650
Skaf v R [2008]…

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 McNeil

Details

AGLC: R v McNeil [2015] NSWSC 357
Case: [2015] NSWSC 357
Decision Date: 02 April 2015

CaseChat Overview and Summary

In the case of R v McNeil, the applicant, charged with murder and assault, sought a judge-alone trial on the grounds that extensive adverse media publicity would prejudice the jury pool. The application was heard by the Supreme Court of New South Wales. The central issue before the court was whether the adverse publicity, which had ceased some 14 months before the scheduled trial date, would still affect the potential jurors' impartiality. The court also considered the role of intention and credibility issues in determining the likelihood of prejudice.

The court examined the principles governing the applicability of a judge-alone trial, focusing on the 'interests of justice' test. The applicant argued that the publicity would irreversibly taint the jury pool despite the time elapsed. The court acknowledged the potential for prejudice but highlighted the steps available to guard against electronic access to the previous adverse publicity, such as jury sequestration and voir dire. The court further noted that the case involved intention and credibility issues, which might be particularly susceptible to pre-trial publicity. Ultimately, the court determined that the applicant had not sufficiently demonstrated that a judge-alone trial was necessary to ensure a fair trial.

The court dismissed the application for a judge-alone trial, concluding that the passage of time and the measures available to mitigate the effects of pre-trial publicity were sufficient to safeguard the applicant's right to a fair trial. The court emphasised that the onus was on the applicant to show a substantial risk of prejudice that could not be addressed through other means. The court did not find the arguments presented compelling enough to warrant a judge-alone trial.

Orders