R v Rolls & Sleiman
[2009] VSC 191
•7 May 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
No. 110 of 2008
| THE QUEEN |
| v |
| AARON ROLLS AND MIRVAT SLEIMAN |
---
JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 May 2009 | |
DATE OF RULING: | 7 May 2009 | |
CASE MAY BE CITED AS: | R v Rolls & Sleiman | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 191 | |
---
CRIMINAL LAW – Conspiracy to commit murder – Application to discharge jury without verdict – Media publication of conduct by accused on arrest – No high degree of need demonstrated – Application refused.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P D’arcy | Director of Public Prosecutions |
| For the accused Rolls | Mr S Cash | Galbally Rolfe |
| For the accused Sleiman | Mr W Toohey | Rob Melasecca |
HIS HONOUR:
In this matter the two accused, Aaron Rolls and Mirvat Sleiman, have been charged that on or about 16 January 2008 they conspired to murder Mr Rolls’ wife, Patrizia Rolls.
The jury was empanelled in this case on Monday 4 May. Openings and evidence commenced on Tuesday 5 May. Ms Rolls gave evidence late morning and for most of yesterday afternoon, 6 May, and this morning Mr Wayne Toohey who appears on behalf of Ms Sleiman has applied for an order that I discharge the jury against his client without verdict.
That application is made on the basis of a segment of a news broadcast by Channel 9 at 6 p.m. yesterday relating to this case.
Mr Toohey has submitted that the news item contains footage which is so prejudicial to his client that if it were seen by a juror or jurors, any direction I could give to them would not sufficiently allay the prejudice resulting to his client.
The footage has been shown to me in court. I do not think it is necessary for me to summarise in detail what it displays. It shows alternately footage of Ms Rolls outside court, Ms Sleiman outside court, the accused Mr Rolls outside court, it goes back to Ms Rolls, it shows Mr Rolls’ counsel, Mr Cash. Later after another interchange between those personalities it shows some footage of a beach. It then shows footage of Ms Sleiman, which would seem to be at the time of her arrest in a vehicle, with a dark hood over her head, making a gesture with her finger at the cameraman. It then depicts Mr Rolls on his arrest. It goes back to a depiction of Patrizia Rolls and later shows a still footage of Patrizia Rolls with some print next to it purporting to depict some of the evidence given in the case.
The part of that footage, to which Mr Toohey takes exception, and in respect of which he makes his application, is the segment of the footage showing his client in the police car making the gesture with the finger at the cameraman.
In essence, Mr Toohey’s submission is that Ms Patrizia Rolls was an impressive witness in court, who, notwithstanding the tribulations to which she has been subjected, bore herself with dignity in this court, that she is depicted sympathetically on the Channel 9 news footage, and that it would be inevitable that a juror would feel some sympathy towards her. While Mr Toohey acknowledges that, with the one exception, the footage shown of his client does not reflect unfavourably on her, his submission is that the footage of his client in the car is so much in stark contrast to the conduct and demeanour of the footage of Ms Patrizia Rolls, that a jury would draw an adverse inference against her in respect of her character and her personality, and would essentially be prejudiced against her in this case.
The relevant test of course which I must apply is that which has been spelt out by the High Court in Crofts v R[1] and by the Court of Criminal Appeal of this State in R v Boland[2].
[1](1986) 186 CLR 427 especially at 432 per Dawson J.
[2][1974] VR 844 at 866.
In essence, particularly this being the fourth day of the trial, and near the conclusion of the Crown case, the relevant test is whether there is a high degree of need that I discharge the jury in the interests of justice.
In considering that question, it is relevant and indeed most important that I determine whether any potential prejudice to Ms Sleiman can be sufficiently or totally dispelled by a direction which I might give to the jury should they happen to have seen the news footage in question.
In my view, there are three important matters that tell against the submission made by Mr Toohey and as a result of which, in my view, there is no such high degree of necessity, but which, by contrast, indeed invests me with a high degree of confidence that no unfair prejudice has been incurred by Ms Sleiman as a result of the news broadcast.
The first matter is that on the first day of the trial, immediately after the empanelment of the jury, I gave to them the usual directions given by a trial judge at the commencement of a criminal trial. As is my practice, I specifically directed the jury, not just advised them but indeed directed them, that if this case is the subject of any publicity, they must not watch it, or if it is in the print media, read it. I directed the jury that if any of them wished to know what the media were saying about the case, they could ask someone on their behalf to keep a record of it, but they must not watch it.
In doing so, I took care to explain to the jury why I gave them that direction, in order to reinforce the importance of the jury not being distracted by anything which occurred outside court and to ensure that they concentrate their minds purely on the evidence given in court in an unprejudiced and fair way.
It is my experience, the experience of all judges I believe of this court, and, indeed in my view the experience of all people who practice in criminal law before juries, and indeed before civil juries in this State, that jurors have shown themselves to be very conscientious in adhering to the type of direction which I gave to the jury at the beginning of this case. Indeed, by happenstance, an incident has already occurred in this case which has revealed that at least one member of the jury has shown that that member has been particularly astute to observe other directions which I gave at the beginning of the case. I remark that the conduct of that juror in bringing that matter to my tipstaff’s attention is, I believe, typical of the conscientiousness with which jurors almost universally approach their task in jury trials, particularly in criminal jury trials.
Given that direction, I must say that I have a high degree of confidence that the jurors in this case would have adhered to the direction which I gave to them. Mr Toohey has submitted that that may well be so, but one can never be totally sure, and he is correct in making that submission. I can only conclude that I have a high degree of confidence but, of course, there can never be guarantees.
Mr Toohey has also submitted to me that a juror might either have inadvertently seen the part of the footage, to which he takes exception, or misunderstood my directions.
I must say that I think that the likelihood or possibility of a juror misunderstanding the direction I gave to the jury is remote.
I also consider that it is highly unlikely that, through inadvertence, any juror would have seen the footage if that juror had, as I expect, adhered to my directions. By happy circumstance, the part of the footage to which Mr Toohey has taken exception did not occur at the beginning of the segment relating to this case, but, rather, a distance into it. Thus, any juror who happened to be watching the news would well and truly, before the offending part was shown, have readily realised that the segment on the news at that time related to this case, and, in obedience to my direction, would have ceased to watch or listen to it.
Thus, in my view, it is highly unlikely that inadvertently any juror would have seen the offending part.
The news footage itself has been tendered in evidence and thus becomes part of the record of the court on the voir dire. One must be careful about assessing one’s own impression of it. I must say that, whilst I accept that it does depict an unfavourable comparison between the accused and Patrizia Rolls, I do not accept that it is such an unfavourable comparison as that submitted by Mr Toohey. However, in expressing that view, I guard against any subjective analysis of the matter by myself; it is more important that I try to appreciate how a juror might view the footage, and a juror might view it otherwise.
Nevertheless, the footage is but one piece in a program. It does not contain any statement of matters prejudicial to the accused. It is thus to be distinguished from the type of news broadcast which publishes matters pertaining to an accused’s prior convictions or to evidence that has been excluded from the trial.
That is not to condone the footage that was portrayed. It is unfortunate, to say the least, that it was portrayed. However, it does not put it into the same category as the type of broadcast which, in my view, creates a high degree of need for a discharge of the jury.
The third matter which, in my view, assuages any residual concern that there may be about the footage is that it would seem to me that if, notwithstanding my clear direction to the jury, somehow or other the offending section did come to the attention of a juror or jurors, I consider that any possible prejudice to Ms Sleiman could be suitably offset by a general direction which I shall give to the jury. In doing so, I agree with Mr Toohey that I ought not to refer to the particular piece of footage in question but, rather, it would be appropriate for me to direct the jury that, given that this matter is the subject of substantial publicity apparently overnight and this morning, if inadvertently they have seen or read anything, including any pictures or films, they should put those matters out of their minds.
In my view, in the atmosphere of this trial, any such direction would be sufficient to allay any possible residual prejudice, if there be any, to Ms Sleiman.
Based on those matters, I do not accept the submission made in persuasive terms by Mr Toohey on behalf of Ms Sleiman. I do not propose to discharge the jury.
In closing, I do note that representatives of Channel 9 have been good enough to attend at court and I would be grateful if they could convey to their client my displeasure at the piece of footage that was shown. I do agree with Mr Toohey that it is unfortunate that it was shown. It is not appropriate that material such as that is shown during a criminal trial.
0
0
0