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

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

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.

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.

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.

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

Application to discharge the jury

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.

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.

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.

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…

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 Wardlaw (Ruling No 2)

Details

AGLC: R v Wardlaw (Ruling No 2) [2019] VSC 409
Case: [2019] VSC 409
Decision Date: 7 June 2019

CaseChat Overview and Summary

In the case of R v Wardlaw, the respondent was charged with the murder of his partner. The trial was held before his Honour Judge Aistrop in the Supreme Court of Victoria. The respondent applied for the jury to be discharged on the basis that it was not possible to give an effective direction to the jury, following extensive media reportage of information not before the jury. The media reportage occurred during the period between the trial and the jury's retirement to deliberate. The application was made on the basis that the reportage was broadcast on a prominent local television news program and that the respondent's name and image were broadcast alongside a statement that he had been found guilty. The trial judge found that the reportage was so prejudicial that a direction would be ineffective and granted the application for the jury to be discharged.

The primary issue before the court was whether the respondent's application for the jury to be discharged should be granted. This involved consideration of the prejudicial effect of the media reportage and the adequacy of any direction that could be given to the jury to disregard it. The court had to consider whether a direction would be sufficient to mitigate the prejudicial effect of the media reportage or whether the prejudice was such that a direction would be ineffective. The court had to balance the respondent's right to a fair trial with the need to ensure that the jury's verdict was not influenced by external factors.

The court found that the media reportage was highly prejudicial and that a direction would not be sufficient to mitigate its prejudicial effect. The court noted that the reportage was broadcast on a prominent local television news program and that the respondent's name and image were broadcast alongside a statement that he had been found guilty. The court found that this was likely to have a significant prejudicial effect on the jury's deliberations. The court found that a direction would be ineffective in mitigating this prejudice and that the application for the jury to be discharged should be granted. The court noted that the prejudice was not caused by any fault on the part of the respondent or his legal representatives and that the only appropriate remedy was to discharge the jury.

The court granted the application for the jury to be discharged and ordered that the jury be discharged without reaching a verdict. The court noted that this was a rare and exceptional remedy and that it should only be granted in the most serious of circumstances. The court noted that the prejudice caused by the media reportage was such that it was not possible to give an effective direction to the jury and that the only appropriate remedy was to discharge the jury. The court noted that this would cause significant inconvenience and expense but that it was necessary to ensure that the respondent received a fair trial.

Orders