Juries (Prejudicial Publicity) Amendment Bill

Introduction and First Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (11:06): Obtained leave and introduced a bill for an act to amend the Juries Act 1927. Read a first time.

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (11:07): I move:

That this bill be now read a second time.

The law about seeking a stay on the grounds that there has been prejudicial publicity sufficient to threaten a fair trial and the course of jury deliberations is governed by the decision of the High Court in Dupas v The Queen (2010) 247 CLR 231. The applicant was charged with a particularly vicious and notorious murder. The circumstances of the murder and the identity of the applicant were the subject of widespread and inflammatory pre-trial publicity. The applicant applied to have the trial permanently stayed as an abuse of process of the court because, he alleged, it would be impossible for him to ever have a fair trial.

The High Court held that there should not be a stay. It decided that any unfair consequences of prejudice or prejudgement arising out of extensive adverse pre-trial publicity was capable of being relieved by the trial judge in the conduct of the trial, by thorough and appropriate directions to the jury. And, tantalisingly enough, Mr Speaker, I seek leave to have the remainder of my second reading explanation inserted in Hansard without my reading it.

Leave granted.

But the court went further. It adopted as authoritative this statement of the law from R v Glennon (1992) 173 CLR 592 at 605-606:

[A] permanent stay will only be ordered in an extreme case and there must be a fundamental defect 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences'. And a court of criminal appeal, before it will set aside a conviction on the ground of a miscarriage of justice, requires to be satisfied that there is a serious risk that the pre-trial publicity has deprived the accused of a fair trial. It will determine that question in the light of the evidence as it stands at the time of the trial and in the light of the way in which the trial was conducted, including the steps taken by the trial judge with a view to ensuring a fair trial.

The law on trial by judge alone is set out in s 7 of the Juries Act 1927. It was changed substantially by the Statutes Amendment (Serious and Organised Crime) Act 2012. That set of amendments dealt with the situation in which a charge of a serious and organised crime offence had been laid and there was a real and substantiated threat of a miscarriage of justice by reason of threats to the jury or other forms of intimidation. In such an event, the DPP was empowered to make an application to the trial judge for trial by judge alone and the trial judge was given an unfettered discretion to make that order if he or she found that the interests of justice required it.

The public's demand to know and the media's determination to sensationalise is ever present. The stay discretion lies in the inherent discretion of a court, as a court, to deal with an abuse of its process. Even if it was wise to examine that area of law, one could not do so without threatening the independence of the jury and making demands of the judicial system that would clearly be unconstitutional.

But the courts can be offered constitutional alternatives to manage a fair trial and counter threats to its process. That is what this proposal is designed to do. Its operation depends, not on an application by the DPP, nor upon the court of its own motion, but on an application for a stay by the defendant. (It may be noted that Queensland has a similar provision but it is activated by application of the DPP). The making of the order for trial by judge alone is entirely discretionary and would only be made if it was in the interests of justice to do so.

The following points should be noted:

The Bill applies to an application for a stay whether the publicity alleged to be prejudicial occurs pre-trial or at any other stage in the trial, and whether or not it is submitted that the prejudice may occur or has occurred (or both);

The Bill applies to an application whenever made and, in particular, whether or not a jury has been empanelled;

The sole criterion for the making of the order is that the court (at the relevant time, be it the trial judge or a judge hearing an application pre-trial) thinks that the order is necessary in order to ensure a fair trial;

If the accused in question is being jointly tried with another or others, the court retains an absolute discretion whether or not to order joint trial by judge alone for one or more of the co-accused. That decision will be influenced by the extent to which the prejudicial publicity will impact on those co-accused and the discretion of the court, in all the circumstances, to weigh the necessity for joint (or separate) trials in the interests of justice; and

The Bill expressly preserves the powers of a court in relation to contempt of court as an explicit reminder to those who might be tempted to use this measure as a warrant to prejudice the trial of an accused.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Juries Act 1927

4—Amendment of section 7—Trial without jury

This clause amends section 7 of the principal Act to allow a court to order trial by judge alone in the circumstances set out in new subsection (3ca) in order to ensure a fair trial.

Debate adjourned on motion of Mr Gardner.