R v Wardlaw (Ruling No 2)

[2019] VSC 409

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0333

THE QUEEN

v

BEN RICHARD WARDLAW

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JUDGE:	Champion J
WHERE HELD:	Ballarat
DATE OF HEARING:	3 – 7 June 2019
DATE OF RULING:	7 June 2019
CASE MAY BE CITED AS:	R v Wardlaw (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 409

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CRIMINAL LAW – Ruling – Trial – Murder – Application for jury to be discharged – Media reportage of information not before jury – Prominent local television news program – Jury direction would be inadequate – Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms D. Piekusis QC and Mr T. Bourbon	Office of Public Prosecutions
For the Accused	Mr M. Thomas Ms C. Lynch	Melinda Walker

HIS HONOUR:

Introduction

1. The accused man, Ben Wardlaw, is charged with the murder of Karen Ashcroft on 14 May 2018 at Unit 6/8 Alma Street, Maryborough, in Victoria.  It is alleged that the accused stabbed Ms Ashcroft once to the chest, causing her death soon after.  Ms Ashcroft was not previously known to the accused.  Further detail as to the alleged offence is contained in a previous ruling in this matter.[1]

   [1]R v Wardlaw (Ruling No 1) [2019] VSC 408.

1. The trial commenced on circuit in Ballarat, and on Wednesday 5 June 2019, parties provided their opening addresses to the jury.  Both argued the central issue of the trial was the accused’s intent at the time of stabbing Ms Ashcroft, as it is not disputed that he caused her death.  In this regard, counsel for the accused presented the alternative charge of manslaughter to the jury.

1. Over the course of the last two days of this trial, eight witnesses have been called.  These witnesses were all present in the Alma Street unit at the time the alleged offence occurred.  Today is the third day of the trial that was due to conclude at approximately the end of next week.

1. This ruling concerns an application made by defence counsel for the jury to be discharged.

Application to discharge the jury

1. This morning a matter was brought to my attention by counsel for the accused regarding a television media report of this trial.  It is this report that forms the basis of the eventual application that arose.

1. Defence counsel provided the Court with a video of a WIN News report being played on a television screen, at approximately 6.00pm last night.  WIN News is a local news organisation in parts of regional Australia.

1. The video includes a news anchor’s description of the trial, accompanied by footage and audio of a television reporter describing some aspects, partially filmed outside the front of the Court yesterday.

1. So far as it is necessary for this application, a very brief informal transcript has been provided to me by my associate.  It appears the news anchor said these words, ‘Witnesses have testified an accused killer was on ice and had not slept in days in the lead up to the alleged murder of Maryborough woman, Karen Ashcroft.  Ben Wardlaw is on trial for fatally stabbing the grandmother while on bail’ (emphasis added).

1. The reporter then appears to have said:

Karen Ashcroft was a much-loved figure in Maryborough. The fatal stabbing resulted in an outpouring of grief. Her alleged killer, Ben Wardlaw, is accused of killing the grandmother at an Alma Street unit in May last year.  He has pleaded not guilty to one count of murder and one count of committing an indictable offence (emphasis added).

1. Initially when the matter was raised this morning, defence counsel submitted that the report included matters that were not before the jury, but did not make an application for the jury to be discharged.  Instead, counsel submitted that any prejudice resulting from the news report could be cured by the provision of a direction to the jury.  As the prosecution had not viewed the footage, I offered them the opportunity to do so, in order to form a final view regarding any direction to be given.  The matter was stood down briefly.

1. When we resumed, defence counsel indicated their position had changed, and now an application is made to discharge this jury on the basis that there would be an unfair trial.  Regarding the veracity of the WIN News report, defence counsel note that while the indictment only included the charge of murder, the accused was on bail at the time of this alleged offence.  It is therefore acknowledged that I cannot inform the jury that the relevant remarks, as emphasised above, are entirely incorrect.

1. Counsel for the prosecution do not make the same application, but submit they are unable to assist the Court to formulate a direction capable of satisfying the need to preserve a fair trial, in light of the above report.

Analysis

1. As above, the reference by the reporter to the accused having pleaded guilty to ‘one count of committing an indictable offence’ is untrue.  That charge did not appear on the indictment when Mr Wardlaw was arraigned earlier this week, nor has the indictment since been amended to include it.

1. However, of deeper concern is the reportage that ‘Ben Wardlaw is on trial for fatally stabbing the grandmother while on bail’, information that was not before the jury in this trial.  Defence counsel confirmed this morning that the accused was on bail when the offence of murder was allegedly committed, and provided a copy of the brief of evidence for that matter which involved the alleged possession of a knife.  Moreover, having viewed the vision, it seems it could not be said that the anchor used the phrase ‘while on bail’ as a throwaway line with diminished effect.  Instead, a degree of emphasis was used when delivering those words.

1. Therefore, a problem exists in how the jury would be directed regarding a report that contains both a true statement and an untrue one.  I cannot say to the jury that they may have seen misleading and untrue material, and to therefore ignore it.  This would be inaccurate because it was only partially untrue.  In attempting to assuage the effect of this material, I would be saying something to them that would be misleading and I am not be prepared to do that.

1. There is an appreciable risk that this jury will have seen this media report.  It aired at 6.00pm, a time that must be regarded as prime time, and on a prominent local television channel.  There is also a risk that jurors would have, or have had, details of the report relayed to them by family or friends.  It will likely be quite evident amongst the families of the jurors, that there was reportage of the trial, and that the accused was said to have been on bail at the time the alleged offence was committed.

1. In my opinion there is a degree of prejudice regarding the report that the accused was on bail, as the jury is likely to speculate as to the circumstances of bail.  They have no evidence regarding any grant of bail.  This fact could have been confirmed by those reporting on this trial, had they considered the transcript or attended Court this week.

1. It is remarkable that such words were used in the WIN News broadcast.  Journalists must be incredibly careful about what material they report in criminal proceedings.  This confirms why reporters ask for transcripts, so they are clear about what they can report as being material that has been placed before the jury.

Conclusion

1. Ultimately, in my opinion there is an appreciable risk that there is material before the jury that has come from outside this Court, and that this material is prejudicial.  There is a real risk of the jury speculating as to why the accused was on bail, that is now intolerable.

1. I have considered the option to give the jury a general direction.  This would involve me repeating the directions I gave at the very beginning of this trial, that this case must be decided solely on the basis of the evidence given within this courtroom.  It seems to me that this direction would not adequately address the issue that now arises, as there is now an appreciable risk that the jury has information that has come from outside this Court that is prejudicial.  It is well understood in the community that a grant of bail attaches to an alleged criminal offence.  Therefore, there is a significant risk that there is material before the jury indicating the accused is facing a charge other than the charge subject of this trial.

1. Accordingly, considering all the above circumstances, including the fact that this trial has been proceeding for less than a week, I have most reluctantly concluded there is a high degree of necessity[2] that the jury be discharged from returning a verdict.  The defence application is therefore granted.

   [2]See R v Boland (1974) VR 849, 866.

1. I acknowledge that we have had two days of evidence in this trial and some witnesses will doubtlessly find it quite challenging to give evidence again.  I am also very conscious of the friends and relatives of Karen Ashcroft, who may well be put through this trial again.  These are sadly unavoidable consequences of this decision.