R v Merrick - [2016] NSWSC 163

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Merrick [2016] NSWSC 163
Hearing dates: 29 February 2016
Date of orders: 29 February 2016
Decision date: 29 February 2016
Jurisdiction: Common Law - Criminal
Before: Wilson J
Decision:
The application is refused and the motion is dismissed.

Catchwords: CRIMINAL LAW – application for a change of venue – whether accused will receive a fair trial – question of whether jury panel may be prejudiced by social media publications – possibility of bias or apprehended bias
Cases Cited: R v Milat CCA 60438/96 [1998] NSWSC 795
The Queen v Glennon [1992] HCA 16; (1992) 173 CLR 592
Webb and Hay v The Queen [1994] HCA 30; 181 CLR 41
Category: Procedural and other rulings
Parties: Regina
Ross Albert Merrick
Representation:
Counsel:
Mr B Campbell (Crown)
Ms T Evers (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Armstrong Felton (Accused)

File Number(s): 2013/00369082

ex tempore Judgment

This morning before this Court the accused, Ross Albert Merrick, was arraigned upon an indictment that charges him with the murder of Marika Ninness on 21 December 2013 at New Lambton Heights. On arraignment, the accused entered a plea of not guilty to that charge.
His counsel moved upon a notice of motion previously filed with the Court. The motion seeks orders that the venue of the trial be changed. Specifically, what is sought is that the Court change the venue for the current trial to the Supreme Court sitting in Sydney, that the trial date for today be vacated and the matter be further listed to fix a fresh trial date in Sydney.
In support of the motion, the accused has tendered and asked to have read two affidavits and a number of annexures to those affidavits. The first of the affidavits is one sworn and filed by the accused’s solicitor, Mr Felton. That affidavit annexes a number of documents, all of which appear to be printouts or downloads from a social media site, Facebook. The second of the affidavits upon which the accused seeks to rely is an affidavit of his mother, Cathy Moss, dated 3 February 2016. Ms Moss also refers to and annexes to her affidavit some documentary material, part of it from Facebook and part of being copies of correspondence. I will return to the detail of the evidence shortly.
The Crown did not require either deponent for cross-examination.
The accused’s contention, broadly, is that, because of posts or entries made on Facebook, he would not be able to receive a fair trial if his trial were to be held in the Newcastle area. The argument is that there is a basis upon which to conclude that the Facebook posts irretrievably give rise to a perception in the reasonable and fair-minded observer that the accused could be tried by persons potentially infected with bias against him.
Of course, when considering that test, one must import another feature to the fair-minded and reasonable lay observer, and that is…

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 Merrick

Details

AGLC: R v Merrick [2016] NSWSC 163
Case: [2016] NSWSC 163
Decision Date: 29 February 2016

CaseChat Overview and Summary

The case of R v Merrick was heard in the Supreme Court of Victoria, where the accused, Merrick, sought a change of venue for his criminal trial due to concerns that the local jury panel might be prejudiced by social media publications. Merrick argued that the publications could lead to bias or an apprehension of bias against him, thus affecting the fairness of his trial. The prosecution opposed the application, asserting that the allegations of prejudice were speculative and that a fair-minded lay observer, properly informed and directed, would not conclude that the jury panel could not deliver an impartial verdict.

The primary legal issue before the court was whether the accused could establish a real risk that the jury panel might be biased or give the appearance of bias due to the social media publications. The court had to consider the nature and extent of the publications, the potential impact on jurors, and whether there were any measures that could mitigate any perceived prejudice. The court also needed to determine if the application for a change of venue was an appropriate remedy under the circumstances.

The court found that the publications on social media did not create a real risk of bias or an apprehension of bias in the jury panel. The judge concluded that a fair-minded lay observer, properly informed and directed, would not conclude that the jury panel would not deliver an impartial verdict. The court emphasised the importance of the presumption of impartiality in the jury and the effectiveness of voir dire and proper jury directions in addressing any concerns about bias. The application for a change of venue was dismissed, and the trial proceeded as scheduled.

Orders