Application to Discharge Denied Due to Media Coverage

The Court denied an application to discharge the defendant, finding that indirect media coverage of bikie violence was not sufficient to create an irreparable prejudice that could not be overcome by jury instructions. The judge emphasised the importance of the relationship between the judge and the defendant in ensuring compliance with directions.

Supreme Court New South Wales

Medium Neutral Citation: R v [NAME] [2017] NSWSC 1383 Hearing dates: 13 – 16 February 2017 Date of orders: 16 February 2017 Decision date: 16 February 2017 Jurisdiction: Common Law - Criminal Before: Rothman J Decision: Application to discharge the [NAME] refused. Catchwords: CRIMINAL PROCEDURE – application to discharge [NAME] – publicity as to bikie violence – publicity not related to offences before the Court – directions to issue – application refused Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 21A(2)(c), 21A(2)(i), 21A(2)(n) Cases Cited: Adanguidi v R (2006) 167 A Crim R 295; [2006] NSWCCA 404 R v Harris (2000) 50 NSWLR 409; [2000] NSWCCCA 469 R v [NAME] (Court of Criminal Appeal (NSW), 4 November 1994, unrep) Texts Cited: tba Category: Procedural and other rulings Parties: Regina (Crown) [NAME] ([NAME]) Representation: Counsel: [redacted] [NAME] ([NAME])

Solicitors: [redacted] [NAME] ([NAME]) File Number(s): 2015/00181328 Publication restriction: NON-PUBLICATION ORDER RE identity or any matter that would identify witnesses A to G

EX TEMPORE Judgment 1. HIS HONOUR: There has been publicity in the mass media about "bikie violence". Before the Court is an application for the discharge of the [NAME], on the basis that publicity in relation to certain activities of the [NAME] ("the [NAME]") creates a prejudice to [NAME], which is incapable of being realistically overcome by a direction.

2. I am not one, despite the authorities, who takes the view that the mere fact a direction is made, juries will always or necessarily follow it. But I am of the view, particularly given the body language of the [NAME] during the course of the directions that have already been given, that the [NAME] in this case is taking seriously the directions that have been given thus far. The juror's disposition to accept a direction depends to some degree on the relationship between judge and [NAME].

3. There are, it seems to me, a number of unfortunate aspects of the current publicity. The articles in the Daily Telegraph and the Sydney Morning Herald have not been tendered, but because of the most appropriate way in which [NAME] has dealt with the issues, having given the Court advance notice of the fact the application was to be made, he has given the Court, or me in particular, the opportunity of reading the Daily Telegraph and Sydney Morning Herald articles, which I have done. I, of course, have not seen the internet articles, but often the internet versions of news are similar, if not identical, to the print version.

4. The Daily Telegraph article is longer and more detailed than the Sydney Morning Herald article. Each of them refers to the fact [NAME] was a member of the [NAME] and the death is suspected to be one occasioned by retribution by the [NAME]. There is also mention, particularly in the Daily Telegraph article, of the reference of danger to persons who leave or pose a threat to the gang or to bikies generally.

5. It is said that the prejudice to [NAME] results from that which may be discerned by the [NAME] from the articles and applied to [NAME]. On the information currently before the Court, [NAME] is to give evidence, presumably to the effect he did not shoot the deceased and was not a party to any agreement to shoot the deceased. The prejudice, therefore, may also run to whether or not [NAME] is to be believed on account of the articles that are now being published.

6. Against that proposition are a number of factors, as has been pointed out by the Crown. There is no direct connection in the media with [NAME], but there is indirect connection, namely the association with the [NAME]. It was my intention to give fairly strong directions about any prejudice that may exist in relation to membership of bikie gangs; and I will probably now, at least in part, bring that forward.

7. I do not intend to draw attention to the publicity that has already been issued that is the news articles either on the internet or in hard copy print, simply because, by way of analogy, it is a bit like saying, do not eat the fruit of the tree that is an apple. Nevertheless, I will give some directions.

8. In relation to the "believability" of [NAME] if he gives evidence, if there be a prejudice, it is a prejudice that will run against [NAME] as much as it runs against [NAME]. So in that sense, it evens itself out.

9. The other difficulty is, as the Crown points out, internet stories are ageless. One can always access articles on the internet without too much trouble. Some, once they are several years old, may be difficult to obtain or require additional effort to locate, but by and large, they will come up in any of the usual search engines. So any future [NAME] would also be able to access the information.

10. The other aspect is the Court does not live in a cocoon, despite some rumours to the contrary. The fact of the matter is, there are, from time to time, stories about [NAME], whether in New South Wales, Queensland, Victoria or elsewhere. It would be difficult to find a time at which one could conduct a four or five week trial, in which there would be no current publicity about a bikie gang.

11. One either takes the view that any publicity about [NAME], or the [NAME], in particular, would stop a trial or prevent it from occurring; or it has to be more direct prejudice and we deal with it by way of directions.

12. It seems to me in the scheme of things, the prejudice to [NAME], if it be prejudice, is matched by any prejudice against persons who are giving evidence against [NAME]; and, secondly, the articles, as I have read them, relate to retribution on account of a danger to bikies rather than the kind of motivation which has, it is said, occasioned the current death.

13. In those circumstances, once [NAME] gives evidence, if he were to give evidence, that he is not currently a member of the [NAME], he may well obtain a favourable view from the [NAME].

14. I am not persuaded in all of the material I have been provided, whether in Court or out of it before we assembled this morning, that the prejudice to [NAME], if there be any, is incapable of being overcome by appropriate directions at the summing-up and at an earlier time, albeit less full than might be the case in my summing-up.

15. As a consequence the application to discharge the [NAME] is refused.

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 October 2017