R v Olden

[2001] VSC 80

SUPREME COURT OF VICTORIA
CRIMINAL DIVISION	Not Restricted

No. 1430 of 2000

THE QUEEN

v.

KYM OLDEN

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JUDGE:	COLDREY, J.
WHERE HELD:	MELBOURNE
DATE OF RULING:	2 MARCH 2001
MEDIUM NEUTRAL CITATION:	[2001] VSC 80

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CATCHWORDS:      Application for jury discharge – St. Kilda prostitute charged with murder – Newspaper article upon subject matter of St. Kilda prostitutes – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. G. Horgan	Office of Public Prosecutions
For the Accused	Mr. J. Desmond	Victoria Legal Aid

HIS HONOUR:

1. Mr Horgan, on behalf of the Crown, has applied for the discharge of the jury following the publication in The Age newspaper of today's date of an article headed "A Place To Rape And Bash With Impunity".  Members of the jury had access to the newspaper.

1. The article itself is clearly an opinion piece written from a particular perspective by a Meg Mundell who describes herself as "the deputy editor of The Big Issue".

1. It is clear that the article is part of an ongoing discussion about on street prostitution, particularly in the St Kilda area.  For example, in the past two weeks there have not only been other newspaper articles, one of which was in The Age, but there have been forums on the radio in which the so-called stakeholders in the street prostitution controversy have taken part.  Further, to my own knowledge, the airways have been filled with radio talk-back on this topic.  In short the matter is one of general debate in the community at this time.  The article itself is not directed to this case but is part of that ongoing debate.

1. I would have thought that the issues in this case can be assessed satisfactorily by the jury within the confines of the evidence, uninfluenced by this article.

1. However, it was put by Mr Horgan that the juxtaposition of the article and certain statements made in Mr Desmond's final address about women on the jury taking a stand against rape and assault created the high degree of necessity for a discharge of the jury.  I think that it is certainly arguable that some of the statements in the final address of Mr Desmond went beyond what was appropriate.  As I indicated in argument, I had considered making some specific comment on them to the jury but I was not asked to do so and in the event, I determined the best policy was to leave the matter alone.

1. Ultimately, the jury was directed to determine this case only on the evidence in this court.  They were told by both counsel to put prejudice to one side and that was reinforced by my charge to them.

1. There is a presumption that juries will obey the directions given to them by a trial judge.  Further, we often underestimate, I think, the intelligence of juries in separating the wheat from the chaff in these matters.

1. In any event, having considered the application, I do not, myself, think that the high degree of necessity for discharge of the jury has been demonstrated.  If one needs added factors, one can look at the stage the trial has reached and the trauma and cost occasioned by any retrial.  But quite apart from those matters, I do not think this application can succeed.

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