R v Willis (Ruling No 3)
[2015] VSC 272
•12 June 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT BALLARAT
CRIMINAL DIVISION
S CR 2014 0146
| THE QUEEN |
| v |
| JESSE WILLIS |
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JUDGE: | OSBORN J |
WHERE HELD: | Ballarat |
DATE OF HEARING: | 11 June 2015 |
DATE OF RULING: | 12 June 2015 |
CASE MAY BE CITED AS: | R v Willis (Ruling No 3) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 272 |
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PROCEDURE – Application for adjournment – Where accused brought into courtroom handcuffed in view of jury pool – Where pre-trial publicity – Whether real risk that jury would be unfairly prejudiced by media reports.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Brown | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
| For the Accused | Mr J D Williams with Mr P Smallwood | Victorian Legal Aid |
TABLE OF CONTENTS
The limited question......................................................................................................................... 1
The further application..................................................................................................................... 1
The prosecution position.................................................................................................................. 5
The relevant principles..................................................................................................................... 5
The threshold question..................................................................................................................... 6
Conclusion......................................................................................................................................... 10
HIS HONOUR:
Application is made on behalf of the accused that the trial of this matter at Ballarat be adjourned to 27 July 2015, when the Court has a three week window of availability for an adjourned circuit hearing.
The application is made on two bases. First, a limited basis arising out of the manner in which the accused was brought into court this morning. Secondly, a more extended basis relating to pre-trial publicity which has occurred as a result of reporting in the Courier newspaper this week.
The limited question
This morning as a result of works being undertaken in the police cells the accused was brought into the courtroom via the front door to the building, through the ground floor lobby, up the public stairway and in through the door giving the public access to court number 5 in which I am sitting.
This occurred at approximately 10:00 am when coincidentally the jury panel had been instructed to assemble at the court.
The consequence was that the accused was paraded past potential jurors whilst handcuffed and accompanied by police officers marshalling him through the building.
This should not have occurred but it is readily remediable. A new panel can be convened on Monday and, if the trial is to proceed in Ballarat during this circuit, that is the course which should be followed in order to avoid the risk of prejudicial perceptions on the part of potential jurors.
The further application
The application for adjournment to late July is further made on the basis of two reports which have appeared this week in the local newspaper.
On Tuesday this week (9 June 2015) Hutchison, a man initially charged on a joint indictment with the accused, pleaded guilty to an amended separate indictment charging an attempt to pervert the course of justice, constituted by assisting Willis dispose of the body of Ganly and a car belonging to him, knowing that Willis had unlawfully killed Ganly.
In addition, I heard argument on the same day concerning the admissibility of the accused’s second record of interview[1] and of tendency evidence sought to be adduced on behalf of the accused.[2]
[1]See Ruling No 1.
[2]See Ruling No 2.
On the following day (10 June 2015), the Courier reported Hutchison’s plea of guilty in the following terms:
AN AVOCA man on Tuesday pleaded guilty to helping dispose of the body of missing Deer Park man Ricky Lee Ganly in a flooded mine near Ballarat.
Stuart Angus Hutchinson, 31, appeared briefly in the Supreme Court sitting at Ballarat, pleading guilty to the offence of assisting an offender.
Another man, Jesse Willis, 29, of Maryborough, is charged with Mr Ganly’s murder.
Willis is due to stand trial in the Supreme Court later this week.
Hutchinson pleaded guilty to attempting to pervert the course of justice on or about April 29, 2013, when he committed a ‘series of acts’ to assist in the disposal of Mr Ganly’s body and his car. Mr Ganly’s Magna sedan was hauled from a flooded Avoca mine on January 19, 2014, with his body inside.
Mr Ganly, 48, had been missing for some months, last seen by his girlfriend at his Doherty Street home in Deer Park about noon on Sunday, April 28, 2013.
Phone records showed his last movements were in Avoca on April 28-29.
He died from a single gunshot to the back of the head.
Willis appeared in the Supreme Court on Tuesday where his legal counsel called the arresting officer from the homicide squad to give evidence.
Following lengthy examination of the detective, Willis’ barrister told Justice Robert Osborn there was insufficient evidence Willis was ever cautioned during his interview.
Willis was remanded in custody and is expected to stand trial in the Supreme Court starting on Thursday.
Hutchinson was also remanded in custody and will reappear in the Supreme Court at Ballarat on Wednesday for a plea hearing.[3]
[3]Patrick Byrne, ‘Avoca man remanded in custody for plea hearing Guilty plea to body disposal’, Ballarat Courier (Ballarat), 10 June 2015, 5.
No report should have been published of the pre-trial applications made on behalf of the accused Willis. Those applications concerned sub judice matters and publication breached s 3(1)(c) of the Judicial Proceedings Reporting Act 1958:
3 Restriction on publication of reports of judicial proceedings
(1)It shall not be lawful to print or publish or cause or procure to be printed or published—
(c)except as provided in this section in relation to a hearing under Part 5.5 or 5.6 of Chapter 5 of the Criminal Procedure Act 2009, any matters other than—
(i)the identity of the court and name of the judge constituting it;
(ii)the names, ages, home addresses and occupations of the accused and witnesses;
(iii)any relevant business information;
(iv)the offence or offences, or a summary of it or them;
(v)the names of Australian legal practitioners (within the meaning of the Legal Profession Act 2004) engaged in the proceeding;
(vi)if the proceeding is adjourned, the date and place to which it is adjourned and bail arrangements on the adjournment.
In consequence, I directed at 10:00 am on Wednesday that the relevant paragraphs be taken down from the newspaper website. Nevertheless, they remained in general circulation within Ballarat and the surrounding region in print form.
Counsel for the accused now submit that the publication was prejudicial to the fair trial of the accused for the following reasons:
·it invited speculation as to the content of the evidence which was the subject of lengthy examination;
·it conveyed the imputation that there was evidence which the defence did not want the jury to know.
It is further submitted that this prejudice was amplified by a front page report published in the Courier on Thursday (11 June 2015) of the plea hearing related to Hutchison, which was conducted on the previous morning. That report commenced as follows:
AN AVOCA man who helped dump a missing Deer Park man’s body in a flooded mine near Ballarat later told police he knew it was the wrong thing to do, a court has heard.
Stuart Angus Hutchinson, 31, pleaded guilty, in the Supreme Court sitting at Ballarat on Wednesday, to assisting an offender, with a prosecutor saying his help in the disposal of Ricky Lee Ganly’s body was a ‘serious example’ of the crime, punishable by up to 25 years’ jail.
‘The principal offence, that’s sought to be concealed, is a very serious offence, being an unlawful killing,’ Crown prosecutor Daryl Brown told the court.[4]
[4]Patrick Byrne, ‘Man helped dump body Hutchinson pleads guilty in Ganly murder case’, Ballarat Courier (Ballarat), 11 June 2015, 1.
It is submitted that the reference to the offence as a ‘serious example’ of the crime punishable by up to 25 years’ jail coupled with the statement that the principal offence was a ‘very serious offence, being unlawful killing’ was potentially prejudicial to the accused.
The continuation of the report at page 4 included reference to the emotional impact of the offending upon the victim’s family and quoted a victim impact statement which described the family’s grief:
‘The impact on my life has been endless ... my heart never stops breaking’.[5]
[5]Ibid 4.
It is also submitted that this evidence of emotional impact is unfairly prejudicial to the accused.
In turn, the defence submits that, having regard to the media publications as a whole, the matter should be adjourned until the end of July to allow the potential for prejudice to abate.
The prosecution position
The prosecution opposes the application for adjournment beyond Monday next. It is submitted that on careful analysis there is no real risk of unfair prejudice arising from the media reports and in particular the Wednesday report in respect of which primary complaint is made.
Secondly, it is submitted that the Crown has assembled its witnesses and is ready to proceed next week. If, however, the matter is put off there is a risk that difficulties will arise in assembling the witnesses again and in particular there may be a difficulty in securing the attendance of the witness Peters, who is currently in custody.
The relevant principles
The defence submits that the accused has a fundamental right to obtain a fair trial and that a prudential approach should be adopted to ensuring that this occurs. I accept that there is longstanding authority to the effect that, where it is necessary to do so, an adjournment may be granted to ensure a fair trial. In Murphy v The Queen, Mason CJ and Toohey J said:
It is fundamental that, for an accused to have a fair trial, the jury should reach its verdict by reference only to the evidence admitted at trial and not by reference to facts or alleged facts gathered from the media or some outside source. However, the might of media publicity in ‘sensational’ cases makes such a pristine approach virtually impossible. Recognizing this, the courts have used various remedies such as adjournment, change of venue, severance of the trial of one co-accused from that of the others, express directions to the jury to exclude from their minds anything they may have heard outside the courtroom and the machinery of challenge for cause.[6]
[6](1989) 167 CLR 94, 98–9.
In R v Long; Ex parte A-G (Qld),[7] Jerrard JA identified a series of considerations which may be relevant on an application for a stay based on pre-trial publicity. That case concerned an application for a permanent stay, but I accept the submissions made on behalf of the accused that the summary is nevertheless helpful in identifying considerations that may inform the proper exercise of the Court’s discretion on an application for a limited stay.
[7](2003) 138 A Crim R 103.
1.The extent and nature of the publicity, when it occurred, and the nature of the offence charged.
2.The legitimate public interest, and legitimate private interest(s) of a person charged with a crime, the witnesses, the victim of the alleged crime and their relatives, in the ordinary and expeditious process of prosecution to verdict of those charges.
3.That in this era of intense commercial publication of information about immediately current events, and easy electronic access to that, there can be no guarantee an individual juror may not have been influenced by pretrial publicity.
4.That recognition of that possibility requires judges to do what can be done to protect the integrity of the criminal process, including but not limited to punishment for contempt, adjourning a trial until the influence of prejudicial publicity subsides, ordering a change of venue for the hearing of the trial, ordering separate trials for different accused persons, and giving express directions to jurors that their verdict must be based on the evidence given before them on the trial and that in reaching that verdict they must disregard knowledge otherwise acquired.
5. That of necessity the law places much reliance on the integrity and sense of duty of jurors to comply with such directions and give a verdict based on the evidence led. Accordingly, it is necessary to show more than the possibility that a juror or jurors would have gained knowledge of prior convictions to support the argument that it was likely those jurors would or did ignore or disobey directions given.
6. That the necessary assumption that jurors understand and follow directions given by trial judges can give way to recognition that jurors’ decision making is affected by matters of possible prejudice, where more is shown than the mere possibility a juror would have gained knowledge of inadmissible and prejudicial matters. It is in these cases that the discretionary exercise of the powers of the trial judge is critical, including the power of adjournment for a lengthy period.
…[8]
[8]Ibid [167] (citations omitted).
The threshold question
As Jerrard JA suggests, the logical starting point is a careful consideration of the extent and nature of the publicity. In the present case, such a consideration raises a threshold question, namely whether there is a real risk that a jury would be unfairly prejudiced by the media reports to which I have referred. The Crown submits that there is no such risk and the evaluation of this controversy must be fundamental to the resolution of the application made on behalf of the accused.
Whilst the cumulative effect of the reporting must ultimately be considered, it is useful first to consider the matters identified individually.
(a) I do not consider that the statement that lengthy evidence was called on a pre-trial hearing would have any real capacity to distract or prejudice a jury. Juries are routinely made aware of the calling of lengthy evidence upon a committal hearing or a Basha enquiry prior to the trial before them. The fact that there has been some prior hearing is readily capable of being addressed by directions to the effect that the jury must decide the matter on the basis of the evidence in the trial and that evidence alone.
(b) Likewise, the statement that the accused’s barrister told the judge ‘there was insufficient evidence Willis was ever cautioned during his interview’ is not in terms a statement that application was made to exclude evidence. Moreover, in consequence of my subsequent ruling it will be abundantly clear to the jury that all of the accused’s recorded interviews are in fact being played to them. I do not accept that the report carries with it any prejudicial connotation of substance or enlivens any real likelihood of generating collateral and improper enquiry.
(c) The statement contained in the Thursday report that the prosecutor said Hutchison’s offending was a serious example of assisting an offender does not report the prosecutor’s submission with precision. Nevertheless, disposal of a body is self-evidently a relatively serious example of the offence in issue. Likewise the statement that the principal offence, being an unlawful killing is a very serious offence is also self-evident. Both these statements will in reality have no prominence whatsoever once the facts of the present case are opened to the jury. It is not in issue that the accused shot Ganly in the back of the head and then disposed of his body by dumping it inside his car in a water-filled mine working. The jury will be provided with photographs which illustrate and demonstrate this conduct. The jury will also be told at the outset of the case that the charge is murder and it will be self-evident that the offending with which the accused is charged is of the most serious kind. I do not accept that the media statements concerning Hutchison’s offending are likely to affect materially or at all the jury’s perception of the seriousness of the alleged offending. Nor do I accept that the statements made in the context of Hutchison’s plea hearing can realistically be regarded as prejudicial. It is true that members of the jury who have read the media reports will know that Hutchison acknowledged the killing was unlawful but it will be fundamental to the conduct of the trial that the jury is directed that they must evaluate the case against the accused themselves and do so only on the basis of the evidence in his trial. It is relevant in this regard that the process of the trial will immediately make apparent that the real issues which the jury must decide relate to questions of self-defence turning on events said to have occurred in Hutchison’s absence. In turn, it will be apparent that the real issues in the trial can only be resolved by detailed consideration of the evidence, including in particular the accused’s account of events.
(d) Similarly, quite apart from the media publicity, the probable impact upon Ganly’s family of his violent death, the concealment of his body for some eight months and the condition of his body after immersion in water for eight months will be readily apparent to any jury of common sense. Indeed, having myself observed Ganly’s mother and sister in court during the hearings this week, the probability is that simple observation of the persons in court during the trial will enable members of the jury to infer that persons having a close connection with the dead man are present in court and that the circumstances of his death are likely to have had an emotional impact upon them. Irrespective of the publicity issue, the jury will need to be carefully instructed to decide the case by reference to rational considerations and not by reference to feeling, emotion or sympathy. That need will arise overwhelmingly from the confronting circumstances of the killing and the disposal of the body, including particular aspects of the evidence such as relevant photographs. The risk of prejudice flowing from emotional considerations will not in my view be materially amplified by any prior exposure the jury may have had to the publications complained of.
It follows that I do not accept that there is a material risk of real prejudice flowing to the accused from the individual matters complained of. Likewise, I am not persuaded that their combined effect is material. For completeness however, it is necessary to address the other factors referred to by Jerrard JA and quoted above which are contextually relevant to the exercise of my discretion.
First, I accept the submission made on behalf of the accused that the very serious nature of the offence charged makes the issue of potential prejudice from media publicity a very sensitive one.
Secondly, I accept that delay of approximately six weeks would not of itself necessarily hamper the relatively expeditious process of the trial.
Thirdly, I accept that in the present case it is likely many of the jurors will have read the material complained of and there can be no absolute guarantee that it has not generated some prejudicial preconceptions concerning the case against the accused.
Fourthly, I accept that as a general principle it is proper to adopt a prudential approach when there is a readily available procedural mechanism to avoid potential prejudice.
Fifthly, nevertheless it is proper to place some material reliance upon the capacity of jurors to understand and abide by judicial directions.
Sixthly, whilst as I have said it is likely that potential jurors will have knowledge of the media publications complained of, it is very doubtful, for the reasons I have explained, that they are in a real sense prejudicial and, in large part, those matters which might be said to give rise to prejudice will be raised by the admissible evidence on the trial in any event and/or be self-evident from the fundamental facts which are not in issue.
Putting the above considerations together, I accept the Crown’s primary submission that the likelihood of prejudice arising from the reports complained of is not such as to require adjournment of the trial in Ballarat beyond Monday next. In summary, I do not accept that the matters complained of are specifically prejudicial in the ways and to the extent submitted on behalf of the accused. Further, insofar as the reporting may be said to carry with it potentially prejudicial emotional connotations, the connotations in issue will substantially arise from the facts of the case in any event. In my view, the ordinary trial processes adopted in cases such as the present will be sufficient to manage and overcome any risk of prejudice which is likely to flow from the pre-trial publicity.
The principal safeguards are the excusing of potential jurors who may have difficulty deciding the case impartially; warnings and directions from the trial judge to the jury of the need to decide the case strictly on the evidence and not upon considerations of sympathy or emotion; and the effect of participation in the trial itself including the definition of the issues which must be decided.
Having reached the above conclusions, it is unnecessary to consider in any detail the Crown’s alternative submission that a change of venue to Melbourne would be preferable to adjournment to late July in any event. I would only say that the presumption in favour of a local trial explained in R v Vjestica[9] would not favour this course.
[9](2008) 182 A Crim R 350, 352–3 [2]–[5] (Maxwell P)
Conclusion
The trial of the accused will be adjourned to Monday next.
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