R v McNeil (No 2)

1. [1]

   HIS HONOUR: The accused, Shaun McNeil, is on trial charged with the murder of Daniel Christie at Kings Cross on 31 December 2013. He was arrested and charged on that date and has been in custody since. The trial commenced with the empanelment of the jury on Monday 1 June 2015.

2. [2]

   On the third day of the trial (3 June) Mr Smith SC, counsel for the accused, applied for the jury to be discharged because of prejudicial media reporting of the first day of the trial. He foreshadowed the possibility of the application the previous day.

3. [3]

   After receiving evidence and hearing submissions I refused the application. The following are my reasons.

A background of prejudicial pre-trial publicity

1. [4]

   The Crown case, very simply, is that the accused assaulted Daniel Christie on New Years' Eve 2013 in Kings Cross by punching him once to the head. As a result of that punch, Mr Christie fell to the ground and suffered catastrophic blunt force trauma causing his death. This tragic event occurred near to the location where a similar death occurred in similar circumstances 18 months earlier: see R v Loveridge [2014] NSWCCA 120. The two cases were at the forefront of a lot of media and community discussion about alcohol-fuelled violence, so-called one-punch homicides, and various efforts that should be, and were, made to quell such abhorrent events.

2. [5]

   It was in this context that there was pre-trial media publicity concerning the accused and his alleged involvement in the death of Mr Christie. This was a principal ground for an application for a trial by judge-alone being made pursuant to s 132 of the Criminal Procedure Act 1986 (NSW). That application was refused by Johnson J on 2 April 2015: R v McNeil [2015] NSWSC 357. (Paragraph references given below relate to this judgment unless otherwise indicated). His Honour made an order prohibiting publication of the making of the application and the evidence and submissions relating to it until such further order as may be made after completion of the trial. That order was in force at the time I heard this application.

3. [6]

   The publicity considered in relation to the trial by judge-alone application included images of the accused, details of his criminal history and commentary arising from the public controversy concerning so-called one punch attacks in the Kings Cross area (at [44]). It was contended that such publicity suggested violent and dishonest tendencies on the part of the accused, often linked with inflammatory images of him (at [45]). The Crown acknowledged that there was a substantial volume of such publicity but emphasised that it occurred very largely in the period between January and March 2014; a fact that Johnson J accepted (at [47]; [71]).

4. [7]

   There was no dispute in the trial by judge-alone application that the earlier publicity was prejudicial to the accused. His Honour determined, however, that a significant period of time had elapsed since the majority of it had appeared and ameliorative steps could be taken to alleviate the possibility of potential and actual jurors locating it on the internet. In relation to potential jurors, an order was made prohibiting publication of the accused’s name up until a jury was empanelled. This was perceived to minimise the risk of jury panel members viewing such material because of any publicity given to the imminent trial. In relation to actual jurors, his Honour assumed (rightly) that the trial judge would give directions to the jury concerning media publicity upon empanelment and through the course of the trial. Such directions would include reference to s 68C of the Jury Act 1977 (NSW) which renders it a criminal offence for a juror to make inquiries (such as searching on the internet) in relation to the accused or anything relevant to the trial.

5. [8]

   Before empanelling the jury on Monday 1 June 2015, I gave a more lengthy explanation than usual to the panel members about the need for objectivity and impartiality (T1-4). I referred to this case having been the subject of a degree of publicity and told them that it was essential that jurors be able to put aside any recollection they may have of such matters. The jury panel were taken elsewhere in the complex in order for panel members to have time to reflect upon what I had said. I indicated that if any of them considered that they should not be a potential member of the jury in this case for any reason, including an inability, or possible inability, to completely put aside any recollection of prior publicity, they would be automatically excused without any questions being asked simply by indicating that fact to the Sheriff's officers.

6. [9]

   I was informed that 8 out of the 56 members of the jury panel were excused as a result of that process. I was confident that the remaining panel members who returned to the court room for the empanelment process considered themselves to be able to decide the case objectively and only on the basis of the evidence presented during the trial. In short, these were people who took the role of being a juror generally, and the need for objectivity and impartiality in particular, seriously.

7. [10]

   There had been a pre-trial hearing on the Wednesday before the trial began at which a number of issues were discussed. One of them was my proposal to revoke the non-publication order made by Johnson J concerning the name of the accused immediately upon empanelment of the jury. Mr Smith raised two issues relating to that; one was a concern as to what might happen if for some reason a jury was empanelled but had to be discharged and then a new jury empanelled. In the Crown Prosecutor’s response he said:

8. [11]

   I responded as follows:

9. [12]

   There were quite a number of journalists present in court at the time these things were said.

10. [13]

    On Monday 1 June there were also a significant number of journalists present in court whilst the jury panel members were absent considering what I had said about the need for objectivity and impartiality. I took the opportunity to deal with a number of issues, including confirming that I would revoke the non-publication order made by Johnson J concerning the name of the accused. In that context I said this:

11. [14]

    Following empanelment, I made some opening remarks to the jury. In the course of this I reiterated the fundamental importance of deciding the case upon the evidence and nothing else. I also informed them of the absolute prohibition on making inquiries about anything to do with the people involved in the case, including the accused, or the issues in the trial itself.

12. [15]

    Each member of the jury was given a document setting out some further directions supplementing those I had given orally in my opening remarks (MFI.1). The directions included that they should put aside any past or contemporaneous media reporting.

13. [16]

    Before the jury left at the end of the first day I gave further directions to the jury about the need for them to decide the case uninfluenced by other things such as by speaking about it to persons who were not fellow jurors. I reminded them about the requirement that they not make any inquiries for themselves about things to do with the trial and indicated that this included going to Kings Cross in order to make an assessment of the crime scene. I also specifically directed them to be wary of anything they saw or heard by way of reporting of the trial, given that such reports would by necessity be selective and probably based upon what a journalist thought might be interesting to the general public. I reminded the jury that it was for them to determine what evidence was important and it was for them to decide the case on the whole of the evidence.

Media reports following the first day of the trial

1. [17]

   An affidavit by the accused's solicitor was read in support of the application to discharge the jury. It referred to photographs of the accused that were published following the first day of the trial.

2. [18]

   There was a news report concerning the trial on Channel 7. A number of still images of the accused were displayed including the following:

3. [19]

   The report included a fifth picture which is not available in a format that can be incorporated in this judgment. It showed the accused holding a jug of blue liquid, probably alcoholic, while appearing to be dancing.

4. [20]

   Yahoo7 News and News.com.au published the following photograph:

5. [21]

   Channel 10 aired what it called a "Newsbyte" (which may well have been a synopsis of a longer story appearing on its main news program). It included the following image:

6. [22]

   Dailytelegraph.com.au published this photograph:

7. [23]

   An article published in the Daily Telegraph (2 June 2015, p. 16) included a cropped version of 4th photograph above.

8. [24]

   Of course, none of these photographs are, or will be, part of the evidence in the trial. They are not relevant to any issue.

Submissions

1. [25]

   Mr Smith submitted that the publication of these photographs was so prejudicial that neither could he make any submission to the jury that could address any thoughts that jurors might have about them and nor could any judicial direction adequately overcome it. It was submitted that the photographs directly bear upon the two issues in the trial: the accused's use of violence and his tolerance to the effects of alcohol.

2. [26]

   It was submitted that by showing that the accused appeared to be a person who consumed alcohol on other occasions, perhaps to a generous extent, the photographs could suggest that he was a person with a significant tolerance to alcohol. Mr Smith referred to the Crown's intention to call Dr Judith Perl, a pharmacologist, who would give an opinion that the accused was a person who had "a very high level of tolerance". That opinion is relevant to whether the accused had the required intent to establish the charge of murder and it is challenged by the defence. (As events transpired, the Crown did not call Dr Perl.)

3. [27]

   It was submitted that by showing that the accused appeared to have engaged in violent conduct in the past (the photograph of him with the torn shirt shown by Channel 10) it appeared that the accused was a person who was generally a violent man.

4. [28]

   The photograph that showed a large tattoo of the name "Christie" on the accused's forearm (“the Christie tattoo photograph”) would lead the jury to speculate that the name was a reference to the deceased. Mr Smith accepted my characterisation of this photograph (see below).

5. [29]

   The Crown Prosecutor submitted that there was no evidence that any juror had seen or heard of any of the photographs. He referred to my having directed the jury to ignore any media publicity. He also referred to my direction that jurors should report any irregularity, such as the inability of a juror to be impartial, and noted that no such report had been forthcoming.

6. [30]

   It was submitted that I should take into account that it was common ground between the parties that if the jury were to be discharged, a further trial with a jury should be deferred for a period of time to allow the prejudicial effect of the publication of the photographs of the accused to subside. A consequence of that would be that the recollection of eyewitnesses would suffer.

7. [31]

   Finally, the Crown Prosecutor suggested that before I contemplated discharging the jury I should exercise the power provided in s 55D of the Jury Act to examine jurors as to whether they had seen the photographs and, if so, whether they felt that their ability to be impartial had been compromised.

8. [32]

   In reply, Mr Smith submitted that questioning members of the jury was not practical and had no utility.

Determination

1. [33]

   I accepted that there was no evidence that any juror had seen or heard of the photographs. However, it may be readily assumed that there is a high possibility of this, given the widespread nature of their publication.

2. [34]

   It is true that I directed the jury to ignore media publicity but I did not direct them to completely avoid it. My direction was more concerned with the possibility of selective, or out of context, reporting of evidence given in the trial rather than with prejudicial material, which I did not anticipate would be published.

3. [35]

   It is also true that no report had been made by any juror concerning the inability of a fellow jury to be impartial. However, I do not believe that is any guide as to whether any jurors had seen the offending material.

4. [36]

   I am not convinced that consideration of the likely consequences of a discharge of the jury is a significant matter in the determination of this application. If I were of the view that the fairness of the trial was impermissibly impacted by the publication of the photographs of the accused, then a discharge of the jury would be the only option.

5. [37]

   Finally, I was not persuaded that questioning the jury was practical in the circumstances.

6. [38]

   The photographs to which my attention was drawn were taken of the accused on various occasions prior to 31 December 2013. (He has been in custody since his arrest on that night.) They may be perceived to portray him as someone who has quite a few tattoos and drinks alcohol.

7. [39]

   The Christie tattoo photograph is concerning. I was told that “Christie” was the name of a former partner and so it is sheer coincidence that the name coincides with the surname of the deceased. There are a considerable number of publicly available (on the internet) photographs of the accused. But out of all of them, someone chose to publish the Christie tattoo photograph. The inference is available that it was selected because of the name in the tattoo. It would be open to an uninformed viewer to think that having a prominent tattoo of the name of the deceased indicates that the accused took some pride in having caused his death and that the tattoo was obtained as some sort of celebratory trophy. A view is available that the photograph was deliberately selected to maximise the prejudicial impact it may have. I cannot conceive that the person responsible thought that there was no chance of a juror seeing it (if he or she had bothered to give the possibility any thought).

8. [40]

   The photograph of the accused wearing what appears to be a torn shirt with much of his torso exposed gives the impression that he has been involved in a fight. It was this photograph that prompted Mr Smith's well-justified concern that it suggested that the accused was a man prone to violent behaviour.

9. [41]

   In relation to photographs showing the accused drinking alcohol, there is merit in Mr Smith's concern that they are capable of conveying an impression that the accused habitually drank alcohol, and to excess, and that therefore he was a man who had developed a significant tolerance to its effects. This would render it more likely the jury would accept the disputed opinion of Dr Perl that I have referred to above (which, ultimately, was not before the jury).

10. [42]

    There is a single issue in this trial: is the accused guilty of murder or manslaughter? Put more directly and specifically: can the Crown prove beyond reasonable doubt that at the time of the punch, the accused intended to cause really serious bodily harm to Mr Christie?

11. [43]

    That this is the issue was made apparent from the time the accused, on arraignment in front of the jury panel, pleaded not guilty to murder but guilty to manslaughter (which the Crown did not accept in satisfaction of the indictment). It was made abundantly clear when Mr Smith opened to the jury and told them that there was no dispute that the accused punched Mr Christie and that the only issue was his intent.

12. [44]

    It is appropriate to note as well that Mr Smith told the jury that there was no dispute that the accused had earlier punched a teenager to the ground and then kicked him. He also referred to the accused having punched Peter Christie after he had assaulted Daniel Christie.

13. [45]

    What this means is that there is no issue before the jury that the accused acted violently towards the deceased and others. A single photograph of the accused with a torn shirt suggestive of having been in a fight does not say very much, if anything, about any propensity he might have to behave violently. It would be perverse, in my view, to draw that inference just from that photograph. There is enough evidence about the accused's behaviour on the night of 31 December 2013 to draw a conclusion that he was readily prepared to act violently. He concedes as much himself.

14. [46]

    Further, even if an inference was drawn that a person had a propensity to behave violently, that says nothing about whether that person intended on a specific occasion of being violent to inflict grievous bodily harm as opposed to some lesser degree of harm.

15. [47]

    As to the sub-issue of alcohol tolerance, there is no dispute that the accused was affected to some extent by alcohol. The only issue in this respect is the extent of any tolerance the accused had to the effects of alcohol. Photographs showing him drinking alcohol on other occasions say very little about the extent of his drinking behaviour. The photographs were likely taken in social settings, such as parties and other gatherings where it is unremarkable for people to drink alcohol. It would not be at all sensible to draw a conclusion that a person who drinks on such occasions is such a regular and heavy drinker that they have a high tolerance for its effects. I was not prepared to assume that the jury was not comprised of sensible people. (And they certainly do not look like they are; quite the opposite.)

16. [48]

    The Christie tattoo photograph is the most concerning. It is open to the interpretation I have described above. But such an interpretation would be completely wrong because the tattoo existed before the accused ever crossed paths with the deceased and his brother. Anyone who is aware of this would easily see that the name in the tattoo is just a coincidence and is of no significance. For this reason I concluded that an appropriate direction to the jury would suffice to overcome any potential for prejudice.

17. [49]

    It is convenient to refer to a case cited by Johnson J in R v McNeil because it supports a proposition that judges in this era need to be robust in not readily assuming that juries easily succumb to prejudice as a result of media publicity.

18. [50]

    In R v Jamal [2008] NSWCCA 177; 72 NSWLR 258, Spigelman CJ said:

19. [51]

    I accept that there can be cases in which such publicity can be extreme to the point of being very difficult for anyone to completely put aside. But the situation presented in this case cannot be so characterised.

20. [52]

    The photographs of the accused that are the basis of this application to discharge the jury should never have been published after he was charged; and certainly not during the course of his trial. The inference is available that publication was designed to present the accused in the worst possible light. This is particularly evident by the contrasting photographs, often appearing in the same news reports, of the deceased.

21. [53]

    In the end, whilst I acknowledge that reasonable minds may differ about this, I was satisfied that, with an appropriate direction being given to the jury, the risk of impermissible prejudice could be significantly and sufficiently ameliorated.

Conclusion

1. [54]

   The photographs of the accused should not have been published.

2. [55]

   The motivation of the persons who are responsible for their publication, on the basis of inferences open to be drawn from the material before me, appear to be highly questionable (and perhaps that is an understatement). The potential for impermissible prejudice to the accused’s trial for an offence of the utmost seriousness was very real.

3. [56]

   Whilst I determined not to discharge the jury, the publications have impacted upon the trial. It resulted in a need for defence lawyers to ask (appropriately) for time out to investigate the issue. Half a day’s sitting time was lost on that account. It occupied hearing time in dealing with the evidence and submissions in relation to the application which certainly cannot be said to have lacked merit. It occupied time by lawyers on both sides considering the issues when they should have been devoting their time to the issues in the trial itself. And it distracted me in having to consider and determine the matter and formulate my reasons for determination. It required me to spend some time giving the jury a direction about the matter and likely distracted the jury for some short time in considering what I had said. After announcing the refusal of the application to discharge the jury it necessitated the making of a non-publication order designed to prevent any further similar publications.

4. [57]

   Intrusion of the media into the conduct of a serious criminal trial for highly questionable reasons is intolerable. I propose to refer the matter to the Attorney-General for consideration of whether any proceedings should be taken as a result.

Order

1. [58]

   The order I made was that the application for the discharge of the jury was refused.