DEFENDING HIGH PROFILE CASES.

Michael B p e QC'

1. Introduction & Overview

"Celebrities are targets. They ' r e targets for any number of people to hy to develop a reputation and make some money at the expense of the celebrity. " S o were the words of Tom Mesereau when appointed Michael Jackson's new lead defence counsel in February 2004.~ Tom Mesereau repeated this explanation for the child molestation complaints against Michael Jackson when addressing the jury some 18 month later.3 As we all know, Michael Jackson was acquitted of chiId molestation charges in June 2005.

High Profile cases such as the recent Michael Jackson trial often become household names because of a defendant" celebrity status or identity. Other high profile cases, however, may concern non-celebrities who soon become well known because of the horrific nature of the crime or due to bizarre, unique or scandalous features of their case. One can contrast Michael Jackson's case with the Okalahoma bombing case of Timothy McVeigh case and both can be contrasted with the case of Jeffrey Dahmer involving macabre dismembenneint and other gory details! Yet all such cases were high profile cases and attracted massive media coverage.

Jm defending high profile cases it can be seen that there are different categories. How they are initially portrayed in the eyes of the public can raise various defence issues that need to be addressed prior to or at the trial. As will be seen, these issues include the need to ensure a fair trial especiaIly where there is negative publicity.5

CeIebrity cases range from the statutory rape proceedings against Errol Flynn to the rape trial of Mike Tyson many years later. Strangely, the proceedings against Errol Flym made him even more memorable and resulted in sayings such as "In Like Flym." Less serious charges that dill made headlines because of the accused's identity include Zsa Zsa Gabor's assault of a police officer, Winona Ryder's shoplifting, and Robert Downey Junior's revolving door appearances for drug offences. Other's include Hugh k t ' s indiscretion in 1995 when visiting a less salubrious part of Los Angeles. English celebrities who have appeared in Court range from the 1 9'h century" Oscar Wilde to another more recent playwright namely Lord Jeffrey Archer. Of come, the trial of the 2oth century is sometimes said to be OJ

1 Special thanks to Juiian Wagner, Barrister-at-Law, for assistance with this paper. z A Michael Jackson Conspiraq? CBS News, 2 June 2004, www .cbsnews.com.au JUT Begim DeIiBeration After Defense, Prmecubion Wrap Up, 12 June 2005, Live! The Michael

Jackson Trial, ~vww.~.typepad.comlIiner/2005 4 Njgel Cawthome, The WorZd's Greatest Serial Killers, Chancellor Press, 2004, 8 1-87. On rare occasions, some cases may attract positive publicity, see Laurie Robinson, Professional

Athletes-Held to a Higher Standard afidAbove the Law: A Comment on High Profie Defeadants and the Needfop. States to Establish High Profile Courts, (1 99R) 73 Iud LJ 13 13 at 13 30.

Simpson's murder trial. The media circus surrounding that trial arguably eclipsed the "carnival atmosphere" of the murder trial of Dr Sam Sheppard in the 1950s.~

There are many non-celebrity cases that soon attract massive media coverage because of the type or nature of the crime. Cases involving horrific detstils are oRen the more difficult to defend as the media and the cormunity are often polarised against the client well before a trial. Recent horrific Australian crimes would include the Snowtown "Bodies in the ~asrels"case~, the Childers Backpacker deaths8 and Ivan Milat's trial some years earlier resulting in more backpacker deaths.9 Serial killers M e r &eld have been England's Moors ~urders", the Yorkshire Ripper1', the Ukraine's Rostov Ripper", and Fred and Rosemary West formaIy of 25 Cromwell Street Gloucester.13

Incidents attracting media attention due to unique or even bizarre allegaiions would include Australia's Azaria Chamberlain case in the 1980s; the 1999 murder trial of England's Sally Clark for what she said was cot death and perhaps the trial of Lorena Bobbitt in America in the 1990s concerning an incident that her former husband will undoubtedIy never forget. Indeed, the Lorena Bobbitt case attracted more media attention then the rape trials of Mike Tyson and William Kennedy srnith.14 The publicity actually helped Lorena Bobbitt as over twenty witnesses came forward to assist the defence."

The trial of the 20' century was clearly not OJ Simpson's trial but the first of the Nurembesg ~ r i a 1 s . l ~ High profile jury trials, however, will only be discussed in this paper.

In Sheppard v MmeId 384 US 3 33 (1 966) the US Supreme Court held that due process was not accorded at Sam Sheppard's trial given the prejudicial publicity and ''carnival atmosphere" at the trial. See F Lee Bailey, The Defence Never Rests, MichaeI Joseph Ltd, 1972, p 94 where the less sensational re-trial resulting in an acquittal can be contrasted with the media circus that sensationalised and yolarised the Cleveland community at the f rs t hial.

See R v B~pltiprg & Wuper [2003] SASC 257 where Martin J referred to the murders as horrific and likely to be distressing to the jury.

See R v Long expwte Attorney-General {Qld) [ZOO31 QCA 37 where pre-trial media reports were described as inflammatory and damaging.

1bid at 176-1 78. 10 Concerning Ian Brady & Myra Hindley, see Nigel Cawthome, The World's Greatest Serial Killers, Chancellor Press, 2004,61-66.

Peter Sutcliffe, ibid at 99-1 10. l2 Andrei Chikatilo bid 1 85- 1 88 l3 ibid 166-176. Fred West did not make it to trial as he was found hanged in his cell in January 1995. Rosemaxy West was convicted of 10 counts of murder. " 4 M e s a Weininger, The Trials ofLorena Bobbie www.The Trials of Lorena Bobitt-htm 15 Richard Crouch, Trials wifh Press Presence, Pu Alicii;~, Family Law News, Virginia State Bar PubIication, (703) 528-6700. 16 See generaIIy Alice FIemming, TrTPirals that Made HeadIines, St Ma&' s Press, 1974. Arguments raised at the International Military Tribunal at Nuremberg continue to be echoed in the current ICTY proceedings against SIobodan Milosevic and in the Iraqi Special Tribunal proceedings against Sadaam Hussein. Both Defendants have raised claims of victor's justice and both refuse to recognise the jurisdiction of the respective tribwnats.

2. Preparation & Performance

Louis Nizer, one of America's most famous trial lawyers who's clients included Charlie Chaplin, Mae West and SaIvador Dali stated in his 1963 memoirst7 that "preparation is [he be all and end all of hid s u c ~ e s s . ~ " ~ The need for preparation and a defence strategy was echoed almost 40 years later by OJ Simpson's Iead attorney, Johnnie Cochran when reflecting on the OJ Simpson ease and many other trials during Cochrm's 40 years as a trial attorney.19 Most will recall that on 3 October 1995, OJ Simpson was acquitted of murdering his former wife Nicole Brown Simpson and one Ronald Goldman after an eight-month trial.

Good preparation by the Defence and getting the jury to focus on the prosecution"^ weaknesses were identified by the November 1995 edition of the American Bar Association Journal as key traits OJ Simpson's defence team. One commentator asserted that it was "not so much their courtroom pep.forwzunce, which was good- if was all the digging they did outside the courtroom. ,320

Of course, the reputation, expertise and performance of defence lawyers play a major role. For example, the nine defence lawyers that made up 05 Simpson's so-called "Dream Team" included the high profile lawyers Robert Shapiro (the original lead attorney), Johnnie Cochrme (who took over as lead anomey) and F Lee Bailey who made his reputation in the Sam Sheppard case. Most importantly, the Dream Team also included lawyers who were DNA experts2' Behind the scenes the team incIuded one of America's best jury selection consultants.22 As will be seen, OJ's Defence team also successMly pIayed the media well in advance of the trial.23

Good court performance and demeanour are undoubtedly important. There are, of course, some lawyers such as Johnnie Cochran who possess a godlike gift in speaking to a jury and have jury appeal. Indeed, it has been suggested that courtroom demeanour in the OJ Simpson case shifted the focus from the evidence to personalities of the prosecutors vis a vis the defence lawyers and upset the momentum of the prosecution case.Z4

Prospective jurors may be well aware of the reputation of certain defence lawyers especially in America where they too acquire celebrity status. A positive affinity may arise well before the trial. For example, in the year before Michael Jackson's 2005 trial, his lead attorney, Tom Mesereau, was described as having a well-mannered style. He was positively portrayed in the press as a regular church-goer and for pravidingpm bono assistance to the needy.25 Of course, by that time, Tom Mesereau

I' Louis Nizer, My L& in Cow?, Pyramid Books, 1963. lX Ibid p 10. '' Speech by Johmie Cochran, A L w e r 3 Life, 24 October 2002, Californian Commonwealth Club, www.commonwealthclub.org/archive/02/02-1 Oconchran-speech-html '* Professor Yale Kamisar, University of Michigan Law School, as reported in Henry J Reske, Verdict era Simpson Trial, (1 995) (Nov), ABA Journal 48 at 48a. '' M Rantala, 0 J Unmasked- The Trial, the Trufh, and the Media, Catfleet Press, 1997 pp 5-6.

Ibid p 173. Tom Goldstein, The Race Card, Columbia Journalism Review, 1997.

24 Henry J Reske, Verdict on Simpson Trial, (1 995) (Nov) ABA Journal 48 at 48a refeming to comments of Gerard Lynch, formerly of the US Attorney's Office. 25 A Melzael Jackso~1 Conspiraq, 2 June 2004, BC News, www.cbsnews.com

was also well known for representing the actor Robert Blake and the boxer Mike Tyson.

3. Developing a Defence Stratew - Jury Trials.

Whilst good preparation will involve an identification of issues of law and evidence, various high profile cases show that the Defence must ultimately keep in mind the human dimension of the jury who will ultimately decide the case. As will be seen, cases such as the 0 6 Simpson trial show that a defence strategy must be developed well in advance.

An American text now published in Australia, namely 'Fundamentals of Trial Techniques' aptly observes that: you musf develop a theory of the case iu advance of fhe trial and stick with that theory throughout. It firther observes that: "Juries decide cases on the basis of impressiom - what they think the truth is - based on the way the parties have p~esented the evidence. ""

Most jurors, of course, are commonly drawn from the same community as the defendant. Their views on a myriad of community and wider issues may be firmly embedded well before a trial. Underlying issues ranging from politics to race and religion are often not directly relevant to a trial yet they may soon become a central theme. Such issues may fairly arise on the evidence or be introduced through evidence. Furthermore, some views may be embedded in a juror's psyche. As observed by some commentators foI1owing the 1995 OJ Simpson trial2':

"Allperso~rs are products of the culture of our sociev ond may have feelings, aftihdes und hostilities of which they are not fully aware. "29

The prosecutors in the 0.J Simpson case, for example, might have initidly viewed it as an open and shut murder case by a man who used to abuse his wife. Could they have foreseen that it would explode into a trial concerning inter-racial anxieties within a nation?'kould they have foreseen that the goal posts would change and, in effect, the LAPD would be on

High profile cases such as the OJ Simpson case and the 2005 Michael Jackson case involved the strategy of attacking the prosecution case and effectively turning the tables by putting the prosecution witnesses on trial. Issues raised at trial and in the defence closing arguments were clearly believable and appealed to the human dimension and understanding of the jury.

The 1990 trial of Imelda Marcos also involved a 'keverse of focus." The Defence successfully tapped into a theme of "government nastiness'yin the midst of confusing

26 Thomas Mauet & Les McCrimmon, FwprdmentaI of Trial Techniqzdes, LBC, 2"d Ed, 2001 at p 248. " a i d . Also see Sonya Hamlin, What Makes Juries Listen, Prentice Hall, 1985, at p 326, as to the importance of establishing a theme. *' The People of the State of California v Orenthal James Sjmpson, Case No. BA0972 11,24 January 1995. 29 Toni Morrison & Claudia Lacour, Birth of Nation ' Hood, Vintage, 1997, p 32. '' Gerry Spence, 0.J The Last Word-The Derath of Justice, St Math's Press, New York, 1997, p 143. 31 %id pp 163 - 144.

documentary evidence.32 Geny Spence also developed the theme that whilst Imelda Marcos was a world class shopper and had 3000 shoes she was only ever guilty of loving her husband and h e w nothing of his theft of some $200 million from the ~ k i l i ~ ~ i n e s ! ~ ~ Another example is the Lorena Babbitt's trial in the 1990s of malicious wounding. A defence of "'irresistible impulse" based on temporary insanity was success^.^^ Lorena Bobbitt was ultimately viewed by a jury of seven women and five men as the true victim of domestic violence at the hands of her now former husband.

3. The Atmosphere in Which the Case is Tried.

Ultimately, a Defence lawyer must consider the atmosphere or prevailing mood in which a high profile case is tried. In 1948, Sir Travers Humphreys described the atmosphere of a certain well h o r n trial when reflecting upon his involvement as one of Oscar Wilde's counsel at the Old Bailey in 1895:

"In every sensational trial by jury, one of the factors lo be reckoned with is the atmosphere in which the case is fried by which I mean the attitude of the public, from which ure drawn the jurors, to the particulm subject debated, and the likelihood of prejudice for or against one of the parties. ""

Needless to say, there are some trials where the atmosphere or prevailing mood is all too damning. The prosecution case may simply be water-tight. Defence Counsel in the criminal trials of Oscar Wilde, for example, clearly fought an impossible battle in trying to portray Oscar Wilde as a victim of blackmailers. This was especially so given Wilde's ill-fated criminal defamation case against the Marquees o f Queensberry which sparked the prosecution of Oscar Wilde. Lord Carson's devastating cross- examination of Oscar Wilde during the libel case had caused long term damage. 36

The mood at the t h e of the trial of Lindy and Michael Chamberlain in 1982 was also stark. T h e Defence strategy of John Phillips QC at the Azaria Chamberlain trial was to attack the Crown's forensic and cicwnstantial evidence and stress the fact that there had been other dingo attacks prior to the disappearance of Azaria ~hamberlain.'~ He also reminded the jury that Mother's don't kill their own babies. Even the trial judge, Justice Muirhead had doubts about the Crown case and made comments short of directing the jury to acquit.3R

Whilst prejudicial publicity will be discussed later in this paper it is apt to note at this juncture that the publicity in those trials was consistently damning and resulted in a

32 M Rantala, O.J. Unmaske4 Catfleet Press, 1996, p 186. 33 The World S Greatest Sex & Scandals, ChancelIor Press, 2004, p 345. 34 MeIissa Weininger* The Trials of Lorem Bobitt - A Studj in Media BacHmh, www.The Trials of Lorena Bobbitt.htm 35 Forward to the original edition of The Trials ofOscm Wilde (Notable British Trials), William Hodge & Co Ltd, 1948, as reprinted in H Montgomery Hyde, Famow Trials Seventh Series Oscar Wilde, Penguin Books, 1962, pp.11-12. " The Oscar Wilde trials will be considered under the topic of pre-trial publicity. 37 For an excellent discussion of the trial and subsequent events, see: MaIcolm Brown & Paul Wilson, Justice & Nightmrares - Successes and Failures of Forensic Science in Australia and NEW Zealand, New South Wales University h s s , 1992, pp 1 19- 143. 38 Jlrsfice & Nightmares1 op cit, p E 34.

trial by media atmosphere. A 'tough on law and order stance' by politicians prior to a trial also raises concerns. A juror at the trial of two ten year olds, Jon Venables and Robert Thompson, for the 1993 murder of a two year old James Bulger, was to later say: "They were tried as adults in an open court, in a lyrach-rno b atmosphere whipped up by lmv-and-order politicians and the media "39

However, cases that may appear damning at the outset can still be swung around. Who, for example, had not seen or heard of the damaging footage of OJ Simpson's bronco being pursued by the LAPD when Simpson failed to make his appointment with the police for questioning following the murder of Nicole Brown Simpson and Ron s old man?^^ Yet at trial, the defence succeeded in getting the jury to focus on issues of police racism and corruption and also sloppy forensic evidence.

Who had not heard of previous allegations of abuse against Michael Jackson and that he settled earlier civil suits some ten years before the 2005 criminal trial? Indeed evidence of the earlier allegations was allowed at Jackson's 2005 trial due to a statutory exception to the rule against propensity rule.4' This evidence, however, was far from convincing. The d e h c e demonstrated that one previous accuser was motivated by money when achieving a civil settlement and never filed a criminal c ~ r n ~ l a i n t . ~ ~ ~ n o t h e r who settled a civil claim refused to testify at Jackson's criminal trial.43 Furthemore, the Defence called MacCaulay Cullsin to refute allegations that C u h had himself been molested by Michael ~ a c k s o n . ~ Culkin aIso denied being "groomed" by Jackson when Jackson gave Culkin an expensive Rolex watch. Lastly, Culkin's description of Jackson being a "childlike" adult supported another Defence claim that Jackson was more of a child rather then a child

4. The Defendant.

The public image, demeanour, and intelligence of the actual client are dearly significant factors in high profile cases, These and other factors may also be relevant in deciding whether to calI one's own client.

A positive public image and demeanour is well illustrated by Jerry Geisler's successful defence of Errol Flynn in 1 943 upon two charges of statutory rape. Geisler's strategy was to get the jury on side and see him as a gentleman and not the defiler of y o u ~ornen.~"t trial, Errol Flynn denied having intercourse with the cornplainants.4'Geislrr once said that F l y ' s "gentlemnni'y demeanour throughout the trial had been an important factor.'* Undoubtedly Flynn's good looks and popularity played a part before the all-female jury. The Los Angeles proceedings

39 Julie Hyland, "Britain: SecondJzaror Condemns Jailing of Two Boys for the Killing of James Bzalger " 1 1 November 1999, m. wsws.org/arficles119991ov1999/bulg-n 1 .shtml 40 Insert info. 41 Section 1 I08 Evidence Code (Ca). 42 The Michael Jackson Trial, www.knx.typepad.comllinder12005 43 ibid. 44 The case Against Michael Jackson, www.thesmokinggun.codmhive/05 1 105 1 culkinl .him1 45 ibid. 46 Errol Flynu S Rope Trials -Source of Common Phrase, www.lawbuzz.com 47 Betty Hansen and Peggy Samerlee, see: Mark Drop, Dateline Hollywood, F r e i M a i r f a x , 1994, p 141. 48 f ie Oflcial ErroI F l p n Website, www.inlike fl ynn.com

resulted in the saying "In like Flym." It has more recently been suggested that the American rap artist, Sean Combs, perhaps better known to some as Sean 'Puffy' Combs or Sean 'P Diddy' Combs, benefited from his popularity in the lead up to his 2001 trial in New York for weapons and bribery offences.49 One of his lawyers, Johnnie Cochran, was to later say: He was able to convince everyone thar he was innocent. ""

Good looks, of course, are only skin deep and not everyone looks like Errol Flynn. Roscoe "Fatty" Arbuckle, one of America's beloved chubby comedians, was tried for the 1921 manslaughter of a young and attractive lady by the name of Virginia Rappe. Arbuckle allegedly raped her during a party at a San Francisco hotel. She died several days later. The coroner ruled that Arbuckle's massive weight burst the petite victim's bladder. The Sm Francisco District Auorney was intent on a conviction. Arguably, Arbuckle's popularity played some part in avoiding conviction despite three jury trials.5'. Rumours, however, also emerged that cormpt payments by Arbuckle's studio affected the outcome.52

Some American commentators say that it is not difficult to make most defendants seem like 'nice people' even if this is rarely directly reIevant to guilt or innocence.s3 Of course, the demeanour and how one's client 'comes across' if they give evidence is a significant aspect in any trial.54

It is said that how Imelda Marcos was portrayed at her 1990 New York trial were significant factors. In his opening statement, her Defence Attorney, Gerry Spence, painted h e d l a Marcos as a lady incapable of crime who was totally ignorant of her husband" nefarious dealings.55 Damaging political issues were avoided. After the not guilty verdict, Gary Spence stated that: "The only time the jury could hear about political issues was in the opening sfafemenf because the judge hudn 't allowed any evidence of it. "j6

Imelda Marcos and an associate of Ferdinand Marcos, one Adnan Khashoggi, were tried in New York for racketeering and other offences. She was accused of squandering millions of dollars which belonged to the people of the Philippines. She was charged under American law as much of the money was transferred to Khashoggi's accounts in the U S. It is perhaps not surprising that Imelda Marcos spent most of the money in New York City! The jury appeared to be moved by the tears Imelda Marcos shed during her testimony. One commentator says that the fact

--

49 Laurie Robinson, Professional Athletes-Held to a High Standmd md Above the Law: A Comment on High-Profie CriminaI Defendants and the Need for States to Establish High-Profile Courts9 ( 1 998) 73 Ind W 1313 at 1330. 50 Marcus Errico, P u f i Not Guilv, 16 March 200 1, E! Online News, www.eonlme.comMewsflte~sPf 51 Though his popularity soon waned: DafeIine Hodlywood, op it, p 134-137. 52 fiid p 137. 53 M Rantala, 0.J Unmasked: The Trial, The Truth & The Media, Catfleet Press, 1997, p 189. 54 bid. 55 Ibid, p 188. 56 Ibidp 188.

that Imelda Marcos gave Ferdinand Marcos 24 one-kilogram weights of gold as an anniversary gift was not viewed as even remotely damaging.57

By contrast, Lindy Chamberlain was off to a bad start well before her 1982 murder trial. It was said that she seemed to have an "apparent lack of emotion " and a "callous ind@rence " when images were seen on television.58 She appeared to be "unnervingly o hjecfive " in face to face interview^.'^

Then there are others who perhaps make their public image all the worse. Let's say Mike Tyson tomorrow faced trial for rape and biting off someone's ear. Surely most jurors truthfdly would have great difficulty in extricating a bad image of Mike Tyson from their minds? His conviction on 10 February 1992 for raping a beauty contestant, Desiree Washington, is known worldwide. As is the fact that he once bit off an opponents ear during a boxing match. Indeed, a year aRer his rape conviction he denounced Desiree Washington as ". . . a lying, reptilian, waonstp.ous, young lady. 1 just hate her puts ....hiow I really do want to rape her and herfucking moma.

Then there are some Defendants who might try to improve their populariw in the eyes of the media prior to actually being charged with an offence. It is said that Lord Jefiey Archer was well aware in September 2000 that he would soon be charged with perjury and perverting the course of justice. The charges arose out of his libel suit against the Daily far.^' The newspaper had alleged that Archer had slept with a prostitute. As the criminal charges loomed, it is said that Archer entertained journalists and photographers at his London penthouse suit when promoting one of his upcoming plays aptly titled The Accused which also starred Lord ~ r c h e r . ~ ' Even in the lead up to his trial at the Old Bailey, it has been suggested that Lord Jeffrey Archer then tried to counter any negative publicity by portraying himself as a victim of the tabloid vendetta.63 At the same time, it is said that he intended to rely on any bad press coverage to bolster a claim of prejudicial pre-trial publicity.64 On 19 July 2001, Jeffrey Archer was convicted and sentenced to four years Appeal proceedings on the ground of prejudicial publicity and an excessive sentence were unsuccessful .M

5. The Trial Judge.

A trial judge ofien tells a jury of the need for impartiality. In short, they are told to decide the case on the evidence alone. They must put aside opinions, sympathies and prejudices. Yet is this asking the impossible? Do jurors really approach cases in such

57 bid, p 189. The jury selected is said to have also favoured the defence as most said during the voir dire that they had no interest in politics. One had never heard of Ferdinand Marcos: O.J. Unmasked, op cit, at p 187. 58 The Giant Book of Crimes lhat Shocked Australia, op cit, p 400-40 1. 59 fiid. 60 Mike Tyson Timeline, www.boxingabout.com " The irony is chat the fabricated alibi was for the wrong date. 62 Archer 's Yew ofLiving Dangerously, The Guardian, 1 9 July 200 1. 63 Archer 's Yew of Living Da~lgerowsIy, The Guardian, 19 July 200 1. " h i d . 65 Disgraced Archer Begins Jail Twm, BBC News, 20 July 200 1. 66 Judges 7'hrow Out Archer Appeal, The Guardian, 23 July 2002; R v Archer [2002] TLR 3 33.

a clinical fashion? Gerry Spence, the American trial attorney who represented Imelda Marcos, suggests this is judicial nonsense unfounded in h m a n experience:

"The judge is the father figure, the law, in the courtroom. He expects the juror to say he can wipe a w q his opinions and set aside prejudices. But prejudices by definition are un inbredpart of us. We can no more set them aside than we can sever ourselves @om our heads or divorce ourselves porn our souls or barricade oumelves against the memory of om experiences. We are our prejudices, our experiences, our opinions. Ifwe do not have them, we either have not lived or m e too dense to have acquired them. Vhen a judge a s h us if we can set these opinions aside, he is asking us if we can set ourselves aside3om ourselves, separate ourselves from who we are and yet still be who we are."67

Of course, people that hold views adverse to one's client might not even be detected during the rigorous voir llires in American trials. In Spence's experience, those who do hold certain opinions and want to be on a high profile 'ury will simply go through a silly ritual of questions where they swear impartiality. 6d Australian Courts do not have a rigorous voi~. dire process for selecting jurors and a challenge for cause challenging the impartiality of a particular juror is rarely if ever allowed. In the High Court appeal by the Murphy brothers who were convicted of murdering Anita Cobby, Mr Justice Brennan observed:

'"A juror who would not volu~tmily seek to be excused because of bias would not readily confess that Bias u ~ d e r questioning $he were chullenged for cause. Rough the procedure is available, the practice of Ausfralian courts has been against its adoption. In fhe AusPalian cornrnunily of today, I think that approach is generally right. "@

6. Composition of the Juw

In America, of course, the jury selection phase of a triaI involves a voir dire where prospective jurors from a panel or venire are required to speak the truth about their ability to be fair.70 The sixth amendment to the US Constitution, af course, speaks of the right to a fair trial by an "impartial jury." Australia, of course, has the same right to a fair triaL71

Whilst it is not proposed to conduct a comparison of the jury selection processes in Australia and England vis a vis America, a few brief words are stiIl appropriate. The main focus will then be whether it is truly possible in Australia for D e h c e Counsel to pick a more favourable jury.

Our jury selection process is markedly conservative and Iess intrusive when compared with the American voir dire process. In Australia, peremptory challenges

67 Geny Spence, 0.J The Last Word-2% Death of Justice, St Martin's Press, New York, 1997, pp 96- 97. 68 Ibid at p 96. 69 (1989) 167 CLR 94 at 124-124. 70 M Rantala, 0.3. Unmasked, op cit, p 168. 71 See Diefrich v R (1992) 177 CLR 292 at 300.

are more limited7' and, as noted, the High Court has expressed doubts about the efficacy of chalIenges for cause in detecting bias.73 Since the 1991"Joh Jury" incident and a Queensland CrirninaI Justice Commission report,74 Defence lawyers in Queensland can only access the panel list of randomly selected jurors on the afternoon before a trial." Any information acquired by a party that a potential juror is unsuitable must be given to the other parties.76 Lastly, the notion in clause 39 of the Magna

that a defendant be tried by his her or her peers or members of a particular community of same standing does not apply in ~ u s t r a l i a . ~ ~

American Defence lawyers, by contrast, clearly have much more Iicence when challenging potential jurors. The 0 J Simpson trial, for example, involved the panel being given a Questionnaire of some 300 questions. It included questions about any contact with a celebrity and whether the prospective juror had ever dated a person of a different race or ethnic It has been suggested that trial judge, Judge Ito, allowed a lot of irreIevant questions or at worst did not even look at the questions.80 For example, Question number 48 on the Questionnaire asked if the potential juror's spouse is "widowed, divorced or separated Perhaps it was a test of a juror's intelligence?

In Queensland, of course, Defence lawyers will simply have the name, address and occupation of the potential juror. As a prospective juror approaches the bible, Queensland defence lawyers simply rely on the appearance, sex and occupation of a juror and perhaps some wives tales, hunches and gut feelings when deciding whether a juror should be ~hallenged.'~ The only means by which a biased juror can usually be sifted in Queensland trials is when the trial judge makes statements as to the need for impartiality at the beginning of the trial and invites jurors to declare my knowledge of witnesses or concern over indifference.

What ideas, if any, can be gleaned from high profile cases when selecting a jury?

The Defence team in the OJ Simpson undoubtedly opted for African Americans. After aI1, they had powerful evidence that Detective Fuhrman was a racist and knew that the LAPD was far fiom impeccable given earlier incidents such as the bashing of Rodney King. Whilst it is said by some that the media was hostile towards OJ Simpson 83, it is equally evident that the Defence strategically played the media with prospective jurors in mind well before the trial. Barely a month after the murders on 12 June 1994,

72 These have been markedly limited by the July Act 1995 (Qld). Murphy Y R (1989) 167 CLR 94 at pp 103-104 & pp 123-124.

74 Report by the Honourable W.J. Carter QC into the Selection of the Jwy for the Trial of Sir Johannes Bj eke-Petersen, (1 993). 75 Jwy Act 1995, section 30. 76 J u y Act 1995, section 35.

Magna Cam cl39 (121 5). 78 R v Walker [I9891 2 Qd R 79. Section 60A of the Jnries Act 1927 SA does allow an all female or an all maIe jury in limited circumstances. 79 M Rantala, 0.J Unmasked, op cit pp 169-1 7 1 .

Ibid. a i d at p 171.

82 As for a list of non-verbal clues jn deciding upon jurors, see Sonya Ramlin, mar Makes Juries Listen, Prentice NaI1, 1985, pp 66-75. s3 See Toni Morrison & Claudia Lacour, Birth of a Nation Hood, Vintage, 1997, pp 339-366.

The New Yorker 'bublished an article titled "An Incendiary Defence." It referred to a police conspiracy against OJ Simpson and described Detective Mark Fuhrman as ". a . r o p e cop who, rather than solving the crime, framed an innocent man."85 This storey was soon to be published around the nation and could have been read by prospective jurors. The journalist, who wrote the article in The New Yorker, received dctails concerning Mark Fuhrman from Robert Shapiro, one of Simpson's lawyers.'6

It is said that the 0 5 Simpson defence team was also advised by a jury consuItant to avoid potential jurors who had a background in science or mat he ma tic^.'^ Those with a non-scientific or analytical background would be more confused by forensic evidence including DNA.

In the racketeering case of Imelda Marcos case, it is said that the defence avoided persons of an educated background." Bankers and money traders were to be avoided as there was to be much prosecution evidence concerning complicated financial transfers and dealings. One juror following the acquittal of Imelda Marcos stated that the prosecution should have: "stopped and expluined it to us. jag In Queensland, of course, it is not uncommon for Defence Iawyers to avoid bankers, accountants and the like in complicated fraud trials or dishonesty cases generally. It appears trite to say that the prosecution in the Imelda Marcos case did not keep it simple by limiting the case to less transactions and miking the case clearer and easier to understand.90

James Linn, who defended Imelda Marcos's GO-accused, Adnan Khashoggi, preferred a jury of middle-aged women who would be suspicious of male authorities and who preferred L h ' s own charms and good looks.91 Undoubtedly, the Defence preferred the all-female jury in the Errol Flynn case. Perhaps a jury o f 7 women and 5 men assisted at Lorenna Babbitt's malicious wounding trial in the 1990s.

Whilst it may sound condescending, a school of thought, common to Australian and American defence lawyers, is that jurors who appear to be overly intelligent are to be avoided. F. Lee Bailey, another Iawyes on the OJ Simpson defence team, once wrote: "A lawyer who has what he believes is cs ~ e ~ y weak case muy be interested in impmeling twelve people of limited intellectual ability. "92 In his book titled To Be a Trial Lawyer, Bailey says:

"The reason why strong-willed, educated, intelligent people are o f i n ~.emovedfiom the jury box by the 1myep.s is disupppointingly simple: To the fellow who believes that his case is weak, these h m a n qualifies spell "ener~zy ."~~

Of course, jury duty can markedly impact on a juror's professional. and vocational commitments. Prospective jurors who say that they are unable to set aside their

84 1 g July 1994. g5 Gerry Spence, 0.J 73771e Last Word, op cit, pp 32-33. 86 See Tom Goldstein, The Race Card, Columbia Journalism Review, Febrvary 1997. 87 M Rantala, 0.3: Unmasked, op ci< p 187.

a i d at pp 186-1 87. gg lbid at p 189. 90 Ibid at p t 89. 91 M Rantala, 0.J Unmasked, op cit, pp 1 86-1 87. 92 lbid at p 187 referring to F. Lee Bailey, To Be a Trial Lauyer, Wiley, 1994, p 1 1 X. 93 lbid at fn 3, referring to F. Lee Bailey, To Be a TrialLaryer, WiFey, 1994, p 115.

opinions and be impartial are those that know it is the easiest way to be excused from jury duty.94

Lastly, it has been suggested that prospective jurors in today's society are unduly influenced by television shows such as "CSI: Crime Scene Investigation" and "Law &

One UCLA law professor, Michael Asimow, recently suggested that "Shows like 'CSJ' are teaching people that without forensic widenee you can 7 convict anybody "96 Indeed, Vince Bugliosi, who prosecuted the Charles Manson trial in the 1970s has suggested that the OJ' Simpson jury may have been m d d y influenced by an expectation that the prosecution should explain or fit every piece in a puzzle.97 It appears that prosecutors in America are nowadays urged to tell jurors that it can some.times be very dificult to obtain forensic evidence and that circumstantial evidence is mficient to prove a case.g8

7. Some Recurring Themes.

Some high profiIe cases involve themes or explanations of a complainant7 s motive which have perhaps been around for many years. Celebrities or high profile clients can be seen as targets for a variety of reasons. Celebrities and Non Celebrities dike may also be scapegoats. The 1963 Old Bailey trial of Stephen Ward for prostitution related offences comes to mind. The charges followed a scandal involving the Conservative War Minister John Profurno and a fun loving girl named Christine ~ e e l e r . ~ Behind the scenes politics may even determine whether the death penalty will be sought by the prosecution in a given jurisdiction. The District Attorney in the 0 J Simpson case made it clear from the outset that it would not be a Capital case. One wonders if a different stance would have been taken if the defendant was not a celebrity? One can contrast the Australian case of Ronald Ryan in 1966 where the Bolte Government of Victoria was quiet on whether the death penalty would be sought if Ryan was convicted. No one had been executed in Victoria in fifteen years and most of the jury thought Ryan would not be executed.IoO The Government was determined to hang Ryan. Sir Henry Bolte, who was facing an election at the time, later said: "ryou want to win an election, have a hanging. ""' A couple of themes that led to acquittals in some high profile cases will now be discussed. It is hoped that one will glean an appreciation of the defence strategies involved in bringing home those themes to the jury.

P1 h i d at p 97. 95 Linda Deutsch, "CSI " & &" Law & Order " lead Jurors to Great Expectadiom, Journal News, 1 6 January 2006, www.thejomalnews.comlappdpbcs.dI~article 96 ibid. '' M Rantala, 0 J Uamasked, Catneet Press, 1996, p xiii. 98 Op cit ''CSI" & Law & Order, & The Victoria Advocate, TY Crime Shows Raising Expectations of Real Juries, 1 6 January 2006, www.thevictoriaadvocate.comlfront/v-printJstoy " see Tim Bealey, The World S Greatesr Trials, Hamlyn, 1990, pp E 14- 12 1. loo Seven members of the jury petitioned the Bol te Government for a reprieve to no avail: Phillip Opas QC, Throw A w q My Wig, p 228.

The comment was made to an aspiring Jeff Kennett in the 1 980s, Sir Hen y Bolfe, the Hanging State Premier, www.angelf~e.com

(i j The Money Motive.

Most people including potential jurors are aware that money may be a possible motive for complaints against Celebrities and other wealthy identities. Of course, money may be an incentive in any trial where a conviction can greatly assist a subsequent civil damages action or a criminal compensation claim. Those with plenty of money such as celebrities are usually classic targets.

America's Jerry Giesler initially made his name in defending a statutory rape complaint by a pretty teenage girl named Eunice Pringle. Pringle claimed that a middle aged grey haired theatre mogul named Alexander Pantages raped her in a mop closet. The Los Angeles Superior Court initially convicted Pantages though was acquitted at a re-triaI. The underlying defence theme developed by Jerry Geisler was that Eunice was of low morals and was after money. By 1929, Pantages was worth US 30, million dollars. The theory that she had torn her clothing and ripped her garments to make it look like rape was supported by an in court demonstration that the mop closet was too small to enable a rape as she had described in her evidence. The movie playing at Pantages's cinema at the time was William A Seiter's m y Be Good? '

A recurring theme in the 2005 Michael Jackson child molestation trial was that the complainant and especially his mother were "Con artists, actors, and liars. "I" The mother was said to have coached the complainant to fabricate allegations against Jackson. The complainant, Gavin Arvizo, was a 13-year-old cancer patient at the time of the alleged molestation at Jackson's Neverland Ranch. It was claimed by the ~ e f e & e that a multi-million dollar civil suit would ensue if Jackson was convicted.103 The defence adduced evidence of previous scams. These included evidence of a fabricated a civil claim against JC Penny and social security fraud.lo4 indeed, in cross- examination, the mother claimed the Fifth Amendment against self-incrimination in refusing to answer questions about social security fraud.

Following Michael Jackson's acquittal, one juror was to state:

"1 went in there with a courage to convicd a ce1ebp.i~. Because I really believe in doing whof is right. And witness uffer witness I was wore convinced of the innocence because of the motivations of$;~zanciul gain and PeveHge. It w m just amazing the w q it was laid out. "' O5

At the 2001 trial of Sean 'Puffy' Combs, defence lawyers J o h i e Cochran and Benjamin B r a b successfully argued that witnesses against Combs were motivated by geed and hoped to secure a chunk of the entertainer's $300 million ernpire.lo6

'02 The Michael Jackson Trial, www.knx.typepad.com '03 ibid. la4 f ie case Against Michael Jackson, www.thesmokinggun.comlarchive '" "Mesereau Mesmerizes - Juror Quotes fiorn Interviews." ~ . t h o m a s m e s e r e a ~ ~ s ~ ~ a r e s p a c e . c o m ( 2 August 2005). 106 Marcus Emco, P u f i Not Guilty, E! Online News, www.eonline.comMewslitemslPf

(ii j The Race Card

The criminal trial of The People of the State of Cul~lrpaia v Orenthal Jmnes imps son'^^ involved the use of a number of strategies by Defence Attorne Jahnnie Cochran and other members of OJ Simpson's so-called "Dream Team. ,'I*&,

strategy was to play the so-called "Race Card."

Another strategy mentioned in Johnnie Cochran's opening statement to the jury was to show that the evidence against OJ Simpson was "contaminare$, compromised and ultimately corrupted. "'09 These issues did overlap.

The Defence argued that evidence was contaminated and/or planted by corrupt and racist Fundamentally, the prosecution case was flawed from the outset.'' On top of this, the defence argued that Simpson had neither the motive to commit the murders and indeed was too infirm to commit them within the time frame suggested by the prosecution."2 It was accepted that Simpson had struck k s former wife in the past however there had been no physical violence since 1989 some five years before the murders.'13 Lastly, it was demonstrated in court fiat blood stained gloves said the belong to 0 J Simpson simply didn't fit.""

For present, the main focus is the race issue which caused much damage to the prosecution case through the cross-examination of an LAPD detective cdled Mark Fuhrman. Fuhrman was convicted of pe jury some time after OJ Simpson's trial."'

At the trial, Detective Fuhrmm was accused of finding two gloves at the murder scene at 875 South Bundy Drive, Brentwood. It was said that he later planted one of the gloves at Simpson's Rockingham home a few miles away fiom the murder scene. Before planting the glove at Rockingham, it was alleged that Fuhrman rubbed it inside OJ Simpson's Ford Bronco so as to connect Simpson to the murders. Simpson had provided a sample of blood to the LAPD following his arrest on 17 June 1994 for DNA testing. As pointed out by Johnnie Cochran is 'his opening and closing address to the jury, there was some 1.5 cc of O.J. Simpson's subsequently missing from the via^."'" There were other contentions over the planting of both 0 J's blood and the female victim's blood which need not be addressed for present purposes.' l7

Detective Fuhrman, as expected during cross-examination, denied planting the glove.''8 Ordinarily this would have been the end of the matter. However, the Defence

lo' Case No. BA097211,24 January 1995. log M Rantala, 0.J. Unmasked-The Trial, The Tmth and The Media, Catfleet Press, 1997, p 5 . I09 Transcript, 3 0 January 1995. 'I0 M Rantala, 0.J Unmasked-The Trial, De Tmth and The Media, Catfleet Press, 1 996, p 6. "' Ibid. "' bid. 'I3 bid. 'I4 In his closing address to the jury, Johnnie Cochrane repeatedly used the expression: ",'fit doesn 'ffit, yon must a t p i t . " See Closing Argument of Johnnie Cochrane in the 0.J. Simpson Case, www.law.umkc.edulfaculty/proj ects/~ialslSimpson~cochranclose.html

O.J. Simpson, Wikipedia, www.wikipedia.com 116 Closing Argument of Johnnie Cochrane in the 0 J Simpson Case, www.law.umkc.eddfacultylprojects/ftrials/Simpson 117 As to this and further tests see Rantala, 0 . J Unmasked, op cit at pp 133 to 138. "' Rantala, ibid, p 152.

was soon to use damning evidence showing that Fuhrman had disdain for African Americans. This in itself did not prove that F- planted the glove. However the underIying fieme developed by the Defence was that the glove was more likely to be planted by a racist cop such as Fuhrman than anyone else.'19

During M e r cross-examination, Detective Fuhrman denied having ever used the term "nigger" in the past ten years. The cross-examination by one of 0 J Simpson's several lawyers, Lee Bailey, was as follows120:

Q: I want you to assume that perhaps at some time since 1985 or 86,you addressed a member of the African American race as a Nigger. Is itpossible that you hme forgotten thaf act on you part?

A: No, it is not possible. Q: Are you, therefore, saying thut you have not addressed any black person as ra Nigger or spoken about blackpeople as niggers in fhe pmf 10 years, Detective Fuhrman?

A: Yes, that is what I'm saying.

Q: And you say fhut unde~. oath that you have nof addressed aqv black person 0s a Nigger or spoken about black people as niggers in fhe past I 0 years, Detective Fuhrman?

A: That 's what I'm suyi~g Sir.

Q: So thut anyone who comes to this cowt and quotes you using that word in dealing with African Americans would be a liar, would they not, Detective Fuhrman?

A: Yes, they would

Proof that F u h a n was in fact lying under oath came in the f o m of tape recordings made of Fuhrman using the "nigger" expression on some 42 occasions over preceding years. Some excerpts were played to the jury. A defence witness, Laura Hart McKinney, told the Court that she had engaged Fuhrman to assist her in writing a fictional screenplay about law enforcement. She taped recorded her discussions with Fuhrman. Fuhrman not only used the nigger term but also spoke of police brutality and rniscond~ct.'~' The Defence called other witnesses as to F u h a n ' s racism. One witness, who had once been arrested by Fuhman, gave evidence that Fuhrman said: "I told you I'd ger you, nigger. "I2' Another told the court that Fuhrman said in 1 9 87 that: "the only good nigger is a dead nigger. Fuhrman told another witness in 1985 or 1986 that be wanted to "burn niggers. When recalIed to the stand on 6

'Ig Gerry Spence, 0.3. The Last Word, op cit p 29. 120 Exbacted from Closing Argument of Johnnie Cochrane op cit, p 6. 12' Rantala, ibid, p 15 1. 122 Evidence of Roderic Hodge, Transcript 6 September 1995. '23 Evidence of NataIie Singer, Transcript 5 September 1995. 124 Evidence of Kathleen Bell, Transcript 5 September 1995.

September 1995, F h a n claimed the Fifth Amendment to defence questions about whether his earlier testimony was false. 125

m e n addressing the predominantly African American jury in his closing argument, it is not difficult too see why Johnnie C o c h chose to open his address with an extract from past of a speech by the African American abolitionist, Frederick Douglas who has been arm icon to African Americans since the time of the American Civil War. Johnnie C o c h stated:

" Ultimately, it's what you determine to be the facts is what's going to be importcdnt, and all of us can live with that. You are empowered to do justice. You are empowered to ensure that this great system of ours werh. Listen for a moment, will you please. One of ~~ryfavowite people in history is the yeat Frederick Douglas. He said shortly after the slaves were fieed, quote: "In a composite nation as like ours as before the Imv, there should be no rich, no poor, no high, no low, no white, no black But common citizenship, equal rights and a common destiw. " This mawellous stutement was made more than 1 00 years ago. If's an ideal worth sfriving fop. and one t h t we still strive for. We haven't reached this goal yet, but certain& in this great counpy of ours, we 're frying. With n jury such m this, we hope we can do that in this particular case. "

J o M e Cochran was to complete his address to the jury by quoting the cross examination of Fuhrman where Fuhrmm denied using the expression 'Tigger." He also referred to evidence showing Fuhrman's racism. Cochran referred to Fuhrman as an "unspeakable disgrace " and 'Ymerica 's worst nightmare. " He also suggested that the LAPD were hying to cover up for F b m .

In emotional tones reminiscent of the statement by Frederick Douglas, Johnnie C o c h implored t he jury to do something about compt police such as Fuhrman:

"One of the things that hm made this country so great is people's willingness to stand up and say that is wrong. I'm not going lo be part of it. I'm not going to be part of the cover up. Jfyoa don't stop it, then who? Do you think the police department is going to stop it? Do you think the D.A. 's oflce is going to stop it? Do you think we can stop if by ourselves? If has to be stopped by you. "'" Well aRer the verdict of not guilty on 3 October 1995, one juror, the foreperson Amanda Cooley, was to reflect upon her view of Mark Fuhrman:

" Ijust sort of h e w that he was u snake. Mutter offact, I think in my journal I indicated that myjrst feeling when I saw him, he looked like a Ku KIw Klan or a skinhead with hair, fhaf type of thing.

It appears, however, that Cooley and at least two other jurors, Carrie Bess and Marsha "

Rubin-Jackson, ultimately rejected Fuhman's evidence because he was a liar, not

lZ5 Further evjdence of Mark F h a n , Transcript 6 September 1995. lZ6 Closing Argument of Johnnie Cochrane in the O.J. Simpson Case op cit p 8. 127 M Rantala, O.J. Unmasked, op cit 1 84.

simply because he was a racist.12' In reaching a verdict, the three jurors' first concern was the mishandling of the blood evidence. Secondly, there was a related lack of credibility of LAPD oficers who were involved with collecting and securing the evidence. Lastly, it seemed impossible for 0 J Simpson to have done everyhino

129 alleged at the crime scene within the time frame presented by the prosecution. They were particularly insulted when it was suggested they themselves played the race card in their deliberations.

Quite a number of commentators have suggested it was unfair or impermissible for the so-called Race Card to have been played.13' After all, eight of the jurors were African Americans. Other's say that the location of the trial in down town Los Angeles and not in the mostly white American Santa Monica was crucial to the outcome.132 One wonders if their views are in themselves racist? If anything can be said, it is trite to say that the case become something inhitely greater then the trial and acquittal of one man for the murder of two people.'33

The simple answer is that the Defence was well within its legal and ethical rights to cross-examine Fuhnnan as racism and introduce contradictory evidence. In considering the credibility of a witness, section 780 of the C ~ l ~ r n i a n Evidence Code permits a Court to consider: "the existence or non existence of a bias, interest, or other motive. " It also enables consideration of "a statement made by the wihess that is inconsistent with any part of his testimony at hearing. " In 1 994, the Californian Court of Appeal succinctly stated in VaNbona v Springer '" that where: "a witness is kaowinglyfalse in one part of his testimony, the jury may d i s m s t otherportiom of his testimony as well. " It may very well have been malpractice for the Defence not to present the race issue.'35

The same d e s of evidence and procedure and one's ethical duty to a client would have applied had 0.5. Simpson been a white American and the police were found to be African American's who were shown to have a hatred of white people. The same rules would apply where the police were neo-nazis and the defendant was jewish. W d d it be sug ested that a Defence lawyer was improperly playing a race card or a religious issue?ji6 One commentator says there would not be any such suggestion in the media as the social politics were different.'37

lZ8 Birth ofNutbora Hood, op cit, p 69, referring to CooIey, Bess & Rubin-Jackson, Madam Foreman - A Rush fo Judgment?, Dove Books, 1995. 12' Birth o f m i o n Hood, op cit, p 60 referring to Cooley, Bess & Rubin-Jackson, Madam Foreman - A Rush to Jzadgment?, Dove Books, 1995. 130 Ibid, p 7 1. 13' Birth ofA Nation' Hood, op cit pp 33-37.

(3.3'. Simpson, Wikipedia, www.wikipedia.com "3 Birth ofA Nution Hood, op cit p 17. 'j4 Ydboraa v Springer 43 Cal. App. 4fh 1525 (1996). 135 Geny Spence, O.J. The Last Word, op cit p 3 1. "' Birth ofNation Hood, op cit, pp 41-42. 13' Ibid.

8. Forensic Evidence & Experts.

In his closing address to the jury in the OJ Simpson case, Johnnie C o c h repeatedly used the expression "If it doesn't fik you must acquit." This refrain clearly captured the attention of jurors and was used in persuading the jury that there were reasonable doubts and gaps in the prosecution case. These anomalies included concerns as to forensic evidence and continuity13g, the time frame w i t h which Simpson allegedly committed the murders, and the fact that gloves said to have been worn by Simpson on the night of the murders did not in fact fit.139

It was crucial for the Defence to strenuously fight the OJ Simpson prosecution on the forensics front. Afterall, Simpson's blood was found in many places at the crime scene. The case can be seen as a testament to how much confusion and doubt can be created where complex evidence is involved. 140

The so-called Dream team included two DNA legal experts"' and the defence called some of the most renowned expert witnesses. One was probably the country's most famous forensic scientist, Dr Henry Lee, who had given evidence in other high profile cases."' The fact that Lee said there was "something wrong" with the DNA evidence greatly supported the defence theory that evidence had been planted.'43 This theory was supplement by evidence of a toxicologist who suggested that an anti-coagulant (EDTA), which had been used to preserve Simpson's blood sample, was later found in Simpson's blood at the crime scene.'@ Another expert who inspected the LAPD laborator pave evidence that there was a persistent and substantial contamination

4. problem. It was suggested that there was cross-contamination between 0 J Simpson's blood and the victim's b10od.I~~ Furthermore, the Defence claimed that blood swatches were so mishandled that the blood of the real killer had completely degraded. 147

The reputation of expert witnesses, the extent of their expertise, and their ability to easily explain complicated evidence can be crucial. Defence Counsel must also be able to concisely explain scientific evidence as was done by one of the defence lawyers in .the OJ Simpson case who had expertise with DNA cases. One juror in the OJ Simpson case was to later say: "On the whole I did notfind DNA too complicated

138 It was urged by the Defence that Detective Vannatter planted Simpson" blood in various places after a sample was volunteered by Simpson. What was clearly established was that Vannatter failed to immediately take the vial of blood to the LAPD Exhibit Control Unit: O.J. Unmasked, op cit, pp 56-69. "' See generally the Closing Argument, ibid, and 0.J Unmuked, op cit, especially pp 45-55 as to the gloves not fitting. '" Or how prosecution wimesses can be %pped up" and how issues can be clouded: OJ Unmasked, op cit, p 9. 14' B m Scheck and Peter Neufeld: 0.2 Unmasked, op cit, p 6 . '42 For dxample the William Kennedy Smith rape trial-M la, O.J. Unmasked, op cit p 62. '43 bid pp 63-64.

There was much debate over whether the EDTA in the blood at the crime scene was from naturally occurring human ante-coagulant or the EDTA placed in the test tube containing Simpson's volunteered blood sample: Ibid 133-138. 145 Dr John Gerdes, Evidence in Chief Transcript, 2 August 1995, see: 0.J Unmasked, p 94. '46 0.1 Unmasked, ibid, pp 114-1 15. 14' 0.J Unmasked, ibid, p 93.

to grasp because Bamy Scheck took the time to explain it and we really o bsewed and listened to what those people were telling us. " I d 8

Of course, it must be remembered that expert opinion evidence should never be accepted as gospel.149 Defence Counsel must always keep in mind that expert opinion evidence called by the prosecution may simply be flawed or at worst biased. This is equally applies even if the expert is of some renown and has given evidence in other high profile cases. The imperative is to scrutinise all suck evidence and to call an expert who can hopefully identify flaws and provide a more worthy opinion.

This is not always possible. For example, it was not until some years after Lindy Chamberlain's murder conviction that copper dust found in the Chamberlain3s car and possessions was shown to yield the same ortho-tolidine results which the prosecution had initially suggested was blood.150 Furthermore, what was also said to be Azaria's blood in the Chamberlain's car was later identified as sound deadener sprayed by manufacturers under the vehicle's dashboard.l5l ~t the Royal Commission into the Death of Azaria Chamberlain, Justice Morling, the Commissioner, held that a trid Judge equipped with all the evidence that came before the Commission would have been compelled to direct an acquittal.152 John Winneke QC, who appeared for the Chamberlains at the Morling Royal Commission., had submitted that the jury's attention was distracted by an avalanche of opinion evidence.'"

A recent International Bar News article titled Unreliable ~vidence'~~, reminds us of the need to constantly question opinion evidence. It instances doubts as to the accuracy of dangerousness predictions by a Texan psychiatrist known as Dr Death who is often relied upon by prosecutors in seeking death penalty verdicts in exa as.'^^ It also refers to the tragic English case of Sally Clark who was convicted in 1999 for murdering her two baby sons. At the trial, paediatrician Sit Roy Meadows said that the probability of two cot deaths in the family was 73 million to one. Sir Roy Meadows had given similar evidence in two earlier cases which resulted in murder convictions. The English Court of Appeal later overturned Sally Clark's convictions. The Royal Statistical Society and other experts narrowed the odds of cot death as being roughly 200 to one. Zn 2004, the General Medical. Council found Sir Roy Meadows guilty of professional misconduct for misleading evidence.

Intentional or unwitting bias can also be a concern, especially when the police or a Government office directly employs experts. High profile cases and the surrounding publicity may very well attract experts who are prepared to slant their opinions depending on who engages them. In 1977 the British Home Ofice suspended one of its eminent forensic scientists, Dr Alan Clift. Clifl had stated that: "Police oflcers are

14' Juror Amanda Cooley, Birth ofA Notion 'Hood, op cit, p 66. j4' Neil Hodge, UmeIiabde Evidence, (2005) Vol59 No 6, International Bar News 13 at 15. 150 Justice & Nightmares, op ciq pp 135- 13 6 . Is1 The Giant Book of Crimes that Shocked Awkaliu, op cit, p 405. 152 Tbid at p 140, r e f e ~ g to the Royal Commission report released 2 June 1987. 153 The Giant Book of Crimes that ShockedAustradia, op cit, p 406. '54 Op cit. 155 A study commjssioned by the Texas Defender Service has cast doubt on predictions as to violent behaviour: Unredirable Evidence, ibid at p 14.

our CuSbomerS and if is fhe view of some senior police oficers that our job is to$nd evidence which may contribute to police inquiries.

Another major concern is whether there has been full disclosure to the defence of all evidence including scientific evidence. Indeed, whether there has even been full disclose in the brief to the DPP. The case of Harry Blackbum comes to mind. In July 1989, Blackbum, a former NSW Detective Superintendent, was charged with serial rapes and related offences. Less then 3 months later the NSW DPP dropped all charges. In a subsequent Royal Commission report by Justice Jack Lee it was found that investigators were not intending to disclose critical blood type evidence that showed Blackbum was not the offender. Mr Justice Lee observed:

"'VMr Bluckburn had been put on @Pal, sign$cant parts of the evidence pointing to his innocence would never have Been available to the defence because the police involved in the investigation suppp.essed that evidence, and there was no way that Mr Blackburn's legal representatives at the @ i d could have knowpa of if. The selection of the charges by the police so us to exclude those in which Mr Blackburn did have favourable evidence would have made Mr Blackhza~.~~'~ posision all the more dificult '" j7

9. The Media Circus

(il Overview.

Since 2000, most will recall the media circus surrounding a number of trials concerning celebrities or simply notorious crimes. In England, for example, there was the 2003 trial of Ian Huntley for the Soham murders of Holly Wells and Jessica ~ h a ~ m a n ' ~ % d in 200 1 Jeffrey Archer's pe jury trial. In Australia, the Snowtown "bodies in the barrels case" in South Australia come to mind as well as the 2002 trial of Robert Long concerning the Childers Backpackers fire and, of course, the 2005 trial of Bradley Murdoch. Last year America's most newsworthy case was undoubtedly the Los Angeles trial of Michael Jackson. Clearly, the media coverage of high profile cases in Australia, America and England is perhaps the most concerning dilemma faced by Defence lawyers in representing a client. The diIemma has been around for years. For example, the Old Bailey trials of Oscar Wilde in 1895, the first trial of Dr Sam Sheppard in America in 1954 and the trial of the Chamberlains in Australia in 1 982. Nowadays, there is even more coverage of high profile trials though Internet news reports and dedicated websites such as "Court T V . 7 7 " 5 9 On top of that, there have been television current affairs shows that invite public awareness and perhaps incite prejudice. "Australia's Most Wanted" in past years comes to mind.

Justice & Nightmares, op cit, p 7. 157 Lee ~eport.

Said to have become the biggest story in Britain: Police ChiefLoses Plot-A Case ofSElecfive Reasoning, The Courier Mail, 28 January 2006. 159 See Richard AckIand, Contrf in the Net, The Walkley Magazine, www.magazine.waMeys.com

What, if anything, can be done to kerb prejudicial publicity in the hope that a client gets a fair trial before an impartial jury. After all, America, England and Australia all share the concept of justice not only being done but also being seen to be done. 160

In addressing the media circus aspect of high profile trials, it is initially proposed to provide a brief overview o f the rights or freedom of the press. Contempt laws and media suppression orders will then be addressed. Lastly the various applications that can be made by the Defence prior to and during criminal proceedings will be examined.

(ii) Freedom of the Press

The concept o f freedom of speech or expression is recognised in ~ustralia '~ ' However, d i k e the First Amendment to the US ~onsti tution, '~~ freedom of expression in Australia is far from an absolute or individual right.163 In AustraIia, media coverage of criminal proceedings is tempered by sub judice contempt laws.164 By contrast, contempt proceedings against the American press is almost unheard of as the United States Supreme Court requires there be a "clear and present danger" to the administration of justice before contempt sanctions are possible.'65 As a result, the media circus instanced in the respective trials of Dr Sam Sheppard, OJ Simpson and Michael Jackson may come to mind. The US Supreme Court in 1966 described Sam Sheppard's trial as having a "cmival atmosphere. Yet contempt measures were not even addressed by the Court.

Some may recall that Dr Sam S heppard was convicted in 1954 of murdering his wife. Be was onIy released in 1966 when the US Supreme Cowl finally held that prejudicial publicity prevented a fair trial and due process.167 The Court said, amongst other things, that the trial judge could have sequestered or isolated the jury from

In England and Australia a hallmark of the legal system is that: "It is offindamentral importance that justice should not on& be done but shouldr~lunifestiy and undoubtedly be seen to be done " (The Queen v Sussex Justices parre McCarfhy [ 19241 1 KB 256 at 259). In America see the Sixth & Fourteenth Amendments to the U.S. Constitution and genedly Sheppard v Mawell3 84 US 3 3 3 (1 966). 161 See generally Nationwide News F@ Ltd v Wilds (1 992) 177 CLR 1, Aiw@uIian Capital Television P f y Ltd v Commonwealth (1 992) 177 CLR 106 & Theophmous v Herald & Weekly Times Ltd (1 994) 1 &2 CLR 104. See Lung v Australian Broadcasting Co~poration ( 1 997) 1 89 CLR 520 as regards the implied constitutional principle of freedom of political communication. Also see Article 19 of the Jnternational Covenant of Civil & Poljtical Rights as regards hedom of expression. As for a cursory recognition of freedom of speech at common law, see Gallagher v Dwack ( 1 983) 152 CLR 23 8 at 243. 162 The 179 1 amendment to the U. S. Constitution states: "Congress shall make no law respecting an estcablkhrnen f of religion, or prohibiting thefiee exe~cise thereox or abridging the freedom of speech, or of the press, OF the right of the people peaceably to assemble, and to perition the government for a redress of grievances. " lB3see Michael Chesteman, OJ and the Dingo: How Media Publicily Relating to Criminal Cases Tried by J q is Dealt With in Azkstsadia d America, ( 1 997) 45 American Journal of Comparative Law 109 at pp 114-1 15 & 125. '64 "under a judge."

Bridges v Cralifonia 3 14 US 252 (1941). See generally MichaeI Chesteman, OJ and 53ae Dingo, op cit pp 125-128. 16' Sheppwd v Mawel l3 84 US 33 3 (1 966). '67 Sheppard did not receive a fair trial consistent with the Due Process clause o f the Fourteenth Amendment. A probability of prejudice in terms of Estes v Texas 381 US 532 as distinct from identifiable prejudice need only be shown: Sheppwd v Maxwell 384 US 333 (1966) at 352-355.

media exposure and could have placed restraints on comments by witnesses, counsel and police oficers.

Sequestering a jury is possible in America though it is considered a drastic measure.16' The jury in OS Simpson's trial was sequestered for 266days at a cost of just under $3 million The jury in the Charles Manson trial in the 1970s was sequestered for some 8 months.170

{iii) Contempt

Chief Justice Sir Samuel Griffith stated many years ago in Packer v ~eacockl~' outlined that "A publication which tends to pptejudice or bias the public mind, either on one side or the other, and to so erzdunger a fair trial, is unlawfil and a contempt of COUP^." l 72

Sub judice contempt, as the expression implies, only comes into play when proceedings are pending.'73 A criminal matter is usually sub judice &om the time the accused is arrested or charged.174 11 may also arise upon the issue of an arrest warrant. ' 75 On 16 July 19 1 0, an mest warrant for murder was issued for the apprehension of one Dr Crippen after human remains hacl been found at Crippen's House. Crippen, by that time, had absconded to Canada. En the meantime, London's Daily Chronicle published a rurnoured confession and other details concerning the police investigation. In finding contempt, Mr Justice Darling aptly observed that: The Cowt could not be Bli~d to the fact that newspapers were9equenfly owned by wealthy people who would take fheir chance and cheep-fullypay anyfines that might be inflicted for the sake of the advertisement ''17~

Instances covered by the doctrine range from an allegation that the accused is or has a criminal record17* to publishing a photograph or footage of the

accused where identification is or may be an issue at trial. 79 On 7 June 1 994, the New South Wales Court of Appeal, amongst other things, made an order restraining the distribution of a Who Weekly magazine which displayed photographs of Ivan Milat singing into a microphone at a family Christmas @hering.'" Milat had only just been

Michael Chesteman, OJand the Di'ngo, op cit p 130. Also see KUTV Inc v Wilkima~r 686 P 2d 456 (1984) wbete

Charles Whitebread & Darrell Contreas, Free Press v Fair Trial: Protecting the Criminal Defendant's Rights is a Highb Publicked Trial by Applying the Sheppard-Mu Mip? Reme*, (1996) 69 Cal L Rev 1587 at 1612. lTO b id at 1604. 17' (1912) 13 CLR577 I" (1912) 13 CLR 577 at 587. 133 James v Robimon (1 963) 109 CLR 593 & AttoraqpGe~leral for NS W v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368. '74 James v Robinson (1963) 109 CLR 593 '75 R v Clarke exparte Crippera 119 101 27 TLR 32. Also see Schedule 1, Contempt of Court Act 198 1 m>. "' Ibid at p 35. In R v Pancini 119541 VLR 544. 178 Hinch v Attornq-General for Victoria ( 1 987) 164 CLR 15. " R R uzlst~.a/ian Broodcasting Corporation [ 1 9831 Tas R 16 1 180 Attom? General fur New South Wales v Time Jrzc Magazine Co Pv Ltd (NSW Court of Appeal, 7 June 1994, unreported). Other orders included the recall of editions and the placement of black stickers over tbbe photographs of Milat.

charged in May 1994 with the rnurder of seven backpackers and identification was still a live issue. A contempt finding was subsequently rnade1"and a fine of $100,000 was imposed on the magazine and $10,000 on the editor. lS2

In AustraIia, the media undoubtedly runs the contempt gauntlet. Of equal concern are law enforcement agencies that enlist the press to smear the character of an accused prior to an arrest. In 1989 the New South Wales Police, media unit orchestrated damning publicity when a former Detective Superintendent, Harry Blackburn, was arrested for serial rapes in Blackburn was "walked" past news crews prior to being charged. One television news service referred to Blackbum as: "A police ofzcer by day, an alleged rapist by night. 11 t e n t on to refer to Detective Blackbum's "bizarre double l*. "n5 The NSW DPP soon dropped the charges. Identification evidence was questionable and, worse still, Blackburn's blood type did not match the offender.lS6 A Royal Commission ensued.''' Blackbum could have easily sued for defamation. Me ended up accepting an ex patio compensation payment h r n the New South Wales Gioverxunent.

Press releases or press conferences by the police can undoubtedly have a damning effect.'" In 1989, the media was heavily fined when one Paul Mason turned himself into the police for the axe murders of two women and a child. After his arrest, the police released details of his confession and allowed the media to film Mason being walked around the murder scenes. The New South Wales Court of Appeal rejected arguments by the media that the prosecution case was watertight. Paul Mason's right to a fair trial was none the less simply because the case against him was strong. 189 A

publication may have a "...real and deJinite tendency lo prejudice or em burrass pending p r o c e e d r-egardless of whether the person about whom the matter is published is guilty In any event, Mason never came to trial as he committed suicide whilst on remand.

Of significant concern are rogue and unnamed police who pass on infomation to the press prior to an arrest and just prior to a matter being sub judice. This occurred prior to the arrest of Robert Paul Long for the Childers Backpacker fire in 2000.''~ McMurdo P observed in an appeal to the Queensland Court of Appeal that the publicity was grossly inflammatory and contained some wrong it was

Is' Attomq-General for NSW v Time I ~ c Mugmine Co Pv Ltd f lo 21 (NSW Court of Appeal, 15 September 1 994, unreported). lgZ AftornvGeneral for NSW v Time Inc Magazine Co P v Ltd P o 21 (NSW Court of Appeal, 2 1 October 1994, unreported). ls3 See Mi Justice Lee's "Report of the Royal Commission of Inquiry into the Arrest, Charging and WjthdrawaI of Charges against Harold James Blackbum and Matters Associated Therewith", NSW Government Printer, Sydney, 1990. lW Channel 10 News, 25 July 1989. See: Mark Pearson, The Sownulist's Guide do Media Law, Alen & Unwin, 1997, p 44.

hid. IX6 see Malcolm Brown & Paul Wilson, Justice & Nightmares-Success B Failure ofForensr'c Science, New South Wales University Press, 1992, at p 202. l X J ibid lS8 see the comments of Brennan J in R v Glennnan (1992) 173 CLR 592 at 61 1. lS9 Attomq-General for New South Wales v TCN ChannslNine Pi;v Ltd [1990] 20 NSWLR 368 at 3382. lW ?bid. 191 R v Long; ex parde Abbornv-General (Q14 120031 QCA 77. '= b i d at para [ 3 ] .

of added concern that an unnamed Queensland police officer provided a journalist with information about Long" previous convictions and charges of which he was not convicted. Her Honour observed:

"It is not suggested the courts hudpower over those who created these reports before Long was charged Responsible journalism, however7 requires common sense and resfraint to ensure medi~ia reports 60 not put at risk an individual's comtifutional right to a fair trial. Complaints to and determinations by the Austr~lian Press Council or the Australian Broadcasting Authori fy may be of assistance in educating those working in the media and in kimitingp~.ejudicialpublici~ in&twe notorious cases but no complaints to those bodies h o e yet been made in this case. " I g 3

Ordinarily, contempt proceedings are brought at the behest of the ~ t - t o r n e ~ - ~ e n e r a l ~ ~ ~ and sub judice principles apply independently of criminal trial applications.lg5 For example, in Regispar, Courr of Criminal Appeal v wi.hseeig6 a criminal jury was discharged on the ground of prejudice caused by a television broadcast the night before it was due to consider its verdict. However, the broadcaster was not held liable in subse uent proceedings for contempt.'97 Conversely, Brennan J observed in R v Glenn04 98, that: "it does nor follow that, where a punishable contempt of court has been committed, the bid must be aborted. " Contempt liability is assessed at the time of publication whereas applications in criminal proceedings now to be discussed are considered at the time such are rnade.l9'

The prosecution may also have a vested interest in kerbing media reports especially where issues might contaminate or undermine Crown evidence. Whilst such proceedings are normally brought by the Attorney-General, it may be prudent for the Defence to implore this to happen if it becomes aware of imminent prejudicial material.

(iv) Media Suppression Orders

In America suppression orders can be made against lawyers, witnesses, Court oficiaIs and law enforcement officials. However '"gag orders" against the media are invariably

193 h id at para [5 ] . 194 For example Hinch v Aworn~y-Gene~aZ for Victoria (1 987) 1 64 CLR 15 though the court that will bear the contempt may instigate contempt proceedmgs, eg, Registrm, Court ofAppea1 v Widdesee (1 985) 3 NSWLR 650. 195 An alleged contempt is considered at the time of publication, see R v Gleanon (1992) 173 CLR 592 per Mason CJ & Toohey J at 605-606; per Brennan J at 612-615. Furthermore, it is debatable whether the fact that a mistrial occurred is actualIy admissible in subsequent contempt proceedings. See Attornq-General fop. NSW v Television and Telecasters (unreported, Supreme Court of New South Wales, I0 September 1998, James q. lq6 (1985) 3 NSWLR 650. lg7 A television broadcast cast aspersions on the credibility of the accused and mentioned that he had shot a man. However, a public interest defence was allowed. The program had not referred to the trial and the program was incidental to a wider concern of police corruption. See generally Mark Pearson, The Journalist 's Gzkide to Media Law, Allen & Unwin, (I 997) at 2 1-60. lg8 (1 992) 173 CLR 592 at 613. 199 See generally: The Courts & The Media, Faculty of Law, UniversiQ of Technology, Sydney, Halstead Press, 1999 p 73.

unconstitutional given the First By contrast, Australian courts can make media suppression orders?" It is a contempt in both countries to disobey a suppression order.

In America, a gag order was imposed by Judge Melford upon Jay Leno in the 2005 Michael Jackson trial. Leno, the commentator of a popular television show, was only restricted in so far as he discussed his own evidence at the It did not apply to otherwise commenting on the Michael Jackson trial.

In Australia, there has been an increase in the use of suppression orders in Victoria and South ~ustralia.~" Indeed, South Australia is said to be the suppression capital of ~ u s t r a l i a . ~ ~ There were 228 suppression orders made in the Snowtown "bodies in the barrels" case.'05 The media was not to report the names and occupations of certain witnesses or portray the faces of the accused.206 ~ u ~ ~ r e s s i o n orders were also made by the Northern Territory Supreme Court at the trial of Bradley John Murdoch. Furthermore, the Defence was successful in having the cinematic release of a movie called "Wolf Creek" postponed. The movie was said to be loosely based on the case. 207

Lastly, where child defendants are involved a court is usually able to make an order that their identities not be disclosed. Such an order was made when two ten year olds, Robert Thompson and Jon Venables, were tried for the 1993 murder of a two year old James ~ u l ~ e r . ~ ~ ~ One, however, wonders if such orders are at all effective when much prejudicial publicity has already taken place before trial.209

(v). Preiudicial Publicitv

Without wanting to sound unduly pessimistic, the prospects of proceedings being stayed or a conviction being overturned in A u s d i a on the grounds of pre-trial

ZOO Nebraska Press Association v Stuart 427 US 539 (1 976). Though see KUTY h c v Wilkinson 686 P 2d 456 (1984) where an order prohibiting media statements refening to the defendant's alleged mafia connections was allowed.

Assuming there is legislative power. It is uncIear whether jurisdiction exists at common law: Attornq-General for NS W v h4qya.s P v L R ~ (1 98s) 14 NSWLR 342 & John Fairfm d Sons Pty Ltd v Police Tribunal (1986) 5 N S W R 465. See generally: Michael Chesterrnan, OJ and the Dingo: How Media Publiciw Relating to Criminal Cases Tried by JUT is Deal# With in A~swalia & America, (1 997) 45 American Journal of Comparative Law 109 at 12 1-1 22. 202 See Miguel Marquez, Leno: Clara Jackson Triad Gag Order, 3 March 2005, www.CNN.com *03 See Report on Free Speech Issues, 2004-2005, Australian Press Council, www.wresscouncil.org.au & Norrie Ross, Suppression Orders Double in Victoria, 14 December 2005, www.news.com.au. A media suppression order was made by the Queensland Supreme Court in 1999 aRer a hung jury was discharged and a re-trial was listed in R v Brown concerning the abduction and murder of Judith and Susan Mackay: see Attumty-General (Ql4 v Win Television Qdd Pw Ltd [2003] QSC 1 57. 204 Nome Ross, Suppression Orders Double in Yictoriu ibid. 205 Penelope Debelle, Gruesome Trail of KiEIing, 9 September 2003, m.theage.com.au/articles12003

ibid. 207 See Australian Broadcasting Corporation, Murdoch Trio1 Begi~rs, The 7.30 Report, 17 October 2005, www.abc.net.au/7.3 O/content/2005/s 148433 I .him '08 See CIive Walker, Fundmental Rights, Fuir Trials and the N w Azrdio- Visual Secfor; (1 996) 59 Mod L Rev 517 at 524. Also see the Children & Young Persons Act 1933 (UK) ss 39 & 47. 209 See Julie Hyland, Britain: Second Juror Condemns Jailing of Two Boys for the KiIlirlg of Jlarnes Bulger, 1 1 November 1999, www. wsws.org/articlesJ199/nov1999/bulg-1 I .shtml

publicity are severely slim given the High Court decisions of Murphy v R~'' concesning the Anita Cobby murder and R v ~lennon.~" Given the stance of the High Court, it was stated by Pincus JA in Terry Lewis's appeal to the Queensland Court of Appeal that:

"...at least in some circumstances, an accused must be content wifh a trial in which the court does the best if can for him by way of directions, without producing any certainQ ~ h a t p e c o c e p i s derfvedporn media treatpnent of the facts of the case will be utterly dispelled by the time the jury comes to consider its verdict. "I2

Pincus JA went on to observe that if this was not so, then it might be impossible to try a person such as Jack Ruby whose shooting of Lee Harvey Oswald was witnessed by millions on From an Australian perspective, perhaps we could add the televised siege at Port Arthur concerning Martin Bryant in April 1996? After all, the Port Arthur massacre has been described as the largest peacetime atrocity in Australia with 35 Martin Bryant was eventually arrested and the then Tasmanian Director of Public Prosecutions even warned the media about contempt prosecutions.T15 Both examples are academic, of course, as Jack Ruby died before his trial and Martin Bryant pleaded guilty and no trial took

Nevertheless, the Australian position is generally clear. Fundamentally, every accused person is entitled to protection from an unacceptabIe risk of prejudicial publicity precluding a fair trial.'17 Tn turn, a fair trial hinges on the requirement that a jury be impartial.218 However, even if contempt laws fail to kerb prejudicial publicity:19a trial judge is still considered sufficiently able to counter such any prejudice. This is through adjournments or other interlocutory orders and especially by adequate directions to a jury.220 A jury, in turn, is assumed to have sufficient integrity and sense of duty so as to base their verdict on the evidence alone in accordance with the judge's di re~t ions .~ '

210 (1989) 167 CLR 94. 211 (1992) 173 CLR 592. The English Courts are more inclined to set aside convictions where there has been a real risk of prejudice. See for example R v McCmn (1991) 92 Cr App R 239, R v Taylor (1994) 98 Cr App R 361 & R v Wood [I9961 1 Cr App R 207. 'I2 R Y Lewis [I9921 1 Qd R 613 at 636 after referring to Murphy v R (1989) 167 CLR 94. 213 [I9921 1 Qd R 613 at 636 (though it should be noted that Ruby died before his trial and the US Supreme Court, unlike the High Court of Australia, has overhuned convictions due to prejudicial publicity, see: Sheppard v M m e I I 384 US 3 33 (1 966).

Mark Pearson, The Journalist's Guide to Media LOW, Allen W Unwin, 1997, p 21. 215 Michael Sexton, Uncertain Justice -Inside Ausiralia 's Legal @stem, New Holland Publishers, 2000 atp 117.

WhiIst the sub judice principle is virtually non existent in America, it should be noted that the US Supreme Court, unlike the High Court of Australia, has overturned convictions on the basis of prejudicial publicity such as the "carnival atmosphere" at the first trial of Dr Sam Sheppard: Sheppard v Maxwell 384 US 333 (1966).

R Y Glennon (1992) 173 CLR 592 at 623 per Deane, Gaudron & McHugh JJ. Dietrich v R (1 992) I77 CLR 292. See Sir Anthony Mason, Fair Triul, (1 995) 19 Crim LJ 7.

219 See Brennan J in R v Gleunon (1992) 173 CLR 592 at 614-615 & Jago vDistpict Court ( ; y S q (1989) 168 CLR 23 at 47. 2ao Brennm J in Jugo v District Court PSW} ( 1989) 1 68 CLR 23 at 47 & R v Glennorn (1992) 173 CLR 592 at 614-61 5.

R v Glennon (1992) 173 CLR 592 at 615.

Most courts accept that it would be naive to think that one could select 12 jurors who have heard nothing about a crime involving considerabIe n ~ t o r i e $ ~ ~ or involving a well-horn identity. The law in Australia says that this does not mean that a potential juror may not be impartial or indifferent even if they know something of the case.223 The position in America is the same.224 As recently stated by one US Federal Court of Appeal: "The U S Constitution does not require ignorant or uninfo~.medjurom, it regwires impartial jurors. "225

In Glennonn the High Court, by a 4-3 majority, overturned a decision of the Victorian Court of Criminal appeal which set aside sex offence convictions concerning a former priest, Father Michael GIennon. Most will recaIl that Derryn Hinch had made prejudicial sub judice comments on radio during Glennon's trial. Hinch named the accused and detailed his criminal history including goal time served for a prior sex offence. h c h was subsequently jailed for 28 days m d fined $10,000.00 for contempt.226 In the leading judgment High Court judgement, Mason CJ and Toohey J held that the Victorian Court of Criminal Appeal had placed too much emphasis on Hinch's contempt conviction and had paid insufficient attention to the directions given by the trial judge in attempting to counter any prejudice.227 Their Honours stated:

"The mere possibiliw that such knowledge might have been acquked by a juror during the @id is not CI suficient basis for concluding that the accused did not h o e fair ~ i a l or that there was a miscarriage ofjustice. Something more must be shown The possibility that a juror might acquire irrekevcant and prejudicial informafion is inherent in PZ criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in eonformi@ wifh the instructions given to them by the trial judge, will render a true verdict in accordance with the widcnce. As Toohey J observed in Hinch v Attorney-General (Vi'c) Il\re 2) (I 987) 164 15 at 74, in the past too little weight muy huve Been given to the capaciy of jarors to assess critically what they see and hear and their ability to reach their decisions by reference to the evidence before them "228

(vi) Applications

(a) Permanent Stay.

A permanent stay will only be ordered in an extreme case.22p A permanent stay of an indictment was granted at the Old Bailey in October 1993 when three former police

2" See Marphy v R (1989) 167 CLR 94 at 98 referring to R v Hzrbbert (1975) 29 CCC (24 279 at 291. 223 Murphy v R (1989) 167 CLR 94 at 98. 224 See Duggan J in R v Von Eiaem (1991) 55 SASR 199 at para [29] referring to lrvin v Dowd(1961) 366 US 7 17 at 722: "it is suflcient $the juror can lay aside his impressiorn or opinion crnd render a verdict based on the evidencepresented in c0vP.t. " Also see Rqmolds v US 98 US I45 and generally: Ronald B Standler, Pre-trhl Publicip Preventing a Fair Trial, (2 1 February 2004), pp 10-1 1, www.rbs2.confpretsiaI.pdf 225 McQueen v Scroggy 99 F.3d 1302 (1996) at p 1320. 226 See Hinch v Attorney-GeneraICyic) (1 987) 164 CLR 15. 2n (1992) 173 CLR 592 at 598. 228 Bid at 603. 229 R v Gdennon (1992) 173 CLR 592 at 605 per Mason CJ & Toohey J referring to Jago v District Cotkrd of NSW (1 989) 168 CLR 23 at 34; per Deane, Gaudron & McHugh 9 at 623.

officers appeared before Mr Justice Garland charged with fabricating evidence in the case of the Birmingham ~ ix . "~ In AustraIia it appears to have never happene~?~' even where there has been massive prejudicial The High Court decision of R v Glennon suggests that there must a sustained media campaign of vilification and prejudgement that cannot be remedied by a trial judge's directions to a jury before a stay m i ~ h t be granted.233

When faced with an application for a permanent stay a trial judge in Queensland must decide whether there would be a "sign$cunt and zlnacceptable likelihood that the trial wouM be vitiated by inadmissible prejudice dndprejudgmelaf. "'j4 Put another way, there must be nothing a trial judge could do in conducting the trial to relieve against the consequences of pretrial

In rejecting the application for a stay in the Childers Backpacker case of R v Long, the trial judge was satisfied that proper directions could counter any likely prejudice. Furthermore, some 20 months had passed since prejudicial material was

The lapse of time since prejudicial pre-trial publicity was similarly given significance in the subsequent appeal to the Queensland Court of ~ ~ ~ e a ~ . ~ ~ ~ Yet one wonders if much weight can be attached to the passage of time as it assumes that jurors have poor memories. Surely media saturation in some of the most notorious cases such as the "Bodies in the Barrels" case in South Australia are likely to leave an indelible impression unabated by time?

Defence lawyer may alternatively seek to have the trial tempomil stayed or adjourned for a period of time until the publicity has died do~n.~~'This is invariably denied on the basis that a trial should ordinarily be dealt with expeditiously for all concerned.239 The 1987 trial of the Murphy brothers for the abduction and murder of Anita Cobby was adjourned far a week &hen the initial jury was discharged due to prejudicial A further adjournment of 6 months was denied.241 Similarly, a temporary stay of 3 months was denied in one of Laurie Cornell's trials.242

230 Evan Whitton, The Carted-Lmyers and Their Nine Magic Tricks, Herwick Pty Ltd, 1 998, at pp 152- 153. 231 Tuckiar v R (1934) 52 CLR 335 is sometimes mentioned but i t does not even come close and did not involve a stay at trial. Tuckiar v R (1934) 52 CLR 335 concerned a refusal by the High Court to order a retrial where Tuckiar's own Defence Counsel unethically announced in open court that Tuckiar had correctly confessed to the murder of a policeman. Furthemnore, Tuckiar's conviction was overturned for other reasons. 232 As a recent example see Long v R 12002 1 QSC 54 where Dutney J accepted there was massive regional, national and international publicity in the wake of the Childers Backpacker hostel arson. 2'3 R v Glennon (1992) 173 CLR 592 at 624. 234 Para 168 of the judgment of Jerrard JA in R v Long exparte A-G (Qld) [ZOO31 QCA 77 referrjng to the joint judgment of Deane, Gaudron & McHugh JJ in R v Glenaon (1992) 173 CLR 592 at 623-624. 2 3 ? ~ 173 of the judgment of Jerrard JA in R v Long expurie A-G (Ql4 [2003] QCA 77. 236 see paras [23] & [24] of the judgment of Dutney J in Long v R [2002] QSC 54. 237 R Y Long exparre A-G (Qlq [2003] QSC 77 per Davies JA at para [37] & Jerrard JA at para [168]. 238 R v Von Einem (1991) 55 SASR 199. ''' Mwphy Y The Queen (3989) 167 CLR 94 at 99. 240 The media had published adverse reports of a GO-accused pleading guilty when the trial jnitially commenced and also referred to one of the remaining co-accused Murphy brothers as "an unemployed prison escapee of no fmed address. "

(cl Chanae of Venue

Defence lawyers may seek a change of venue within an Australian State or ~ e r s i t o ~ y . ~ ~ ~ This might be possible under State or Territory internal legislation. There is, however, no comprehensive Federal legislative scheme enabling a change of venues between States or territories.244 Rather uniquely, the CommomaIth did enact special enabling legislation in the case o f R v Toh Yu en$^' where a murder trial was transferred from the Supreme Court of Christmas Island to the WA Supreme Court at Perth. Given community tensions, 12 impartial jurors were unlikely to be drawn from the small Christmas Island territory.246

A change of venue within a State is to be considered on its merits, However, it is still necessary for the Defendant to show cause why the trial should not proceed in the district in which the offence allegedly occurred.247 Apart from issues of convenience, one clearly important factor favouring a transfer is that a fair trial should be had and be seen to be had.248 Even if an initial application is refused, it can be later renewed as was done in the Childers Backpacker arson case.249 Robert Long's murder trial was eventually transfetred from Bundaberg to Brisbane. The chief reason, however, was a concern about delay. At the time of the renewed application there was still an appeal to the High Court against an initiaI transfer refusal. Ultimately, the interests of all parties and witnesses required the trial to commence as soon as possible.25o

A change of venue was aIIowed in the ChamberIain case where proceedings would have ordinarily been held at Alice ~ ~ r i n ~ s . ~ ~ ' The 2005 trial of Bradley Murdoch for the murder of Peter Falconio and the abduction of Jennifer Lees was also held in Darwin. A transfer to Darwin also occurred in an earlier Northern Territory case of R v ~ e ~ ~ e r i l l . ~ ~ ~ Mr Justice Muirhead transferred an AIice S rings case of wounding P involving an incident between police and aboriginal The local press had rallied the community against the defendants in what Justice Muirhead described as "disgaceful journalism calculared and likely to inflame opinion against the ~ b o r i ~ i p l e s . " ~ ~ ~

241 The trial judge's decision was approved by theHigh Court in Mwphyv R (1989) 167 CLR94. 242 Conned1 v The Queen (1 994) 12 WAR 133. 243 For example see sections 557 & 559 of The Criminal Code 1899 (Qld) and R v Long [200 13 QSC 445, de Jersey CJ. AIso see, for example, section 63, District Cows Acr 1967 (Qld) and R v Yanner (unreported, Qld C of A, 2 1 November 1997). 244 See for example Bwh v The Queen (1993) 43 FCR 549 at 553 where D m o n d J observed that there was no legislation enabling a trial outside of the ACT. 245 (1987) 30 A Crim R 203 246 C h i ~ t ~ n a s IxlmdAct 1958 (Cth). Of interest, chere was only a BilI before the Commonwealth Parliament at the time of the transfer application subsequentIy enabIing such a transfer of venue. 247 R v Yanner (unreported, Qld C of A, 2 1 November 1997). 248 bid. Also see R v Lange (1986) A Crim R 139; R v Anderson (19741 5 ALR 268 & Hart J in R v Knot [I9741 Qd R 58 at 59; R v PepperilI (1981) 54 FLR 327. 249 R R Long [200I] QSC 445 (de Jersey CJ). AIso see R vDavis /I9641 NZLR 417.

R v Long- [200 t ] QCS 445. 251 See MichaeI Chesterrnan, OJ and the Dingo: How Media Publici~ Relating to Criminal Cases Tried By J u y is Dealt With in Australia rand America, (1997) 45 American Journd of Comparative Law, 109 at 123. 25"~981 j 54 FLR 327 253 pursuant to section 83(2) of the Supreme C o ~ r t Act 1 979 (NT). 254 ibid at p 33 1.

A change of venue appears to be more common in America where there are Counties within a State. California, for example, has comprehensive guidelines for venue changes on the grounds of bias, publicity and political concerns. In January 2004, for example, the trial of one Scott Petersen for murdering his pregnant wife and unborn son was transferred from StanisIaus County to Los Angeles Petersen's attorney, Mark Geragos, argued that StanisIaus County was too small and the potential jurors were too involved in the case.256

Id) Judicial Comment & Juw Selection A~plications.

In relation to jury selection, a trial judge, at the outset, can ask questions of the panel to ascertain whether they are likely to have been influenced by When selecting a jury the law in Australia "theoretically" enables a Defence Counsel to challenge for cause, that is to say, challenge to each prospective juror as to their impartiality.25g The difficulty is being able to provide some foundation that a particular juror is biased,259

Challenges for cause were allowed at a fiurther murder trial of the Kray twins in 1 969 on the basis of a "pprobahility of prejudice."260 The circumstance were said to be 'Cvholky exceptional " as the b a y s had only just been convicted for another murder some six weeks earlier and further pre'udicial publicity ensued. Kray was distinguished in R v Stuarf & Fincd6'where the Queensland Court of Criminal Appeal upheld a refusal by the trial judge to allow a challenge for cause. Matthews J criticised the decision in Kruy and suggested that a stronger foundation for a challenge was required in Queensland. His Honour stated:

"the only foundation of fact which had been laid wwas that the matter prejudicial to the accused hlad been published By navsgapers and the tramlation of this into a finding that each of the prospective jurors was probably not idlg"erend between the Crown and the accused was a mat&. of speculation and not in the circumsfances justiJied. jJ6*

In R v ~ 2 r p h $ ~ ~ , Mason CJ & Toohey J reiterated the need for a s a c i e n t foundation of fact before a challenge for cause will succeed. Their Honours stated:

"There may be cmes where a reading by the trial judge of oflending material, where it has been pu blished in circums tames that justifi an i~ference that mem hers of the

255 Judge Changes Peterson Triad Site, 8 January 2004, CNN.com 256 ibid. 257 See the suggestions in R v GIen~lon (7992) 173 CLR 592 at 601. See for example R v Mclachlaa [20003 vsc 2 15. 25 8 Section 43, Jury Acr 1995 (Qld). A challenge for cause is only possible on the grounds of impartiality or lack of qudification to act as a juror: R v A Judge of District Courts & Shellv; Ex parte Artoraq-General [I99 11 1 Qd R 170. It might arise where a juror has sat on another jury in respect o f the same matter: Watson & Purnell, Criminal Law in New South Wales, 2nd ed (1981) p 802. 259 BWJZ v The Queen (1993) 43 FCR 549; M w p b v The Queen (1989) 167 CLR 94 at 104; R v Stuart & Finch [I9741 Qd R 297 at 369; R v Mawon [I9741 Q d R 197. 260 The Qzceen v fiay (1 969) 53 Cr App R 4 12 at 4 15.

[I 9741 Qd R 297 262 ibid at 370.

(1989) 167 CLR 94

jury are Silcely to have read it und to have been influenced against the accused will be enough to justlfi acceding to an application to question potential jurors. But they are exceptional cases. "264

In at least two Australian high profile cases the defence sought to show likely prejudice on the part of prospective jurors through adducing evidence of tele hone surveys and expert opinion evidence based on empirical studies and surveys. pss , one of the proceedings concerning Laurie Connell of Rothwell's infamy, the West Australian Court of Criminal Appeal stated:

"In our opinion szkweys m d experiments which are based on the results of interviews with or studies of individual jurors w e somewhat suspec f because they do not fake account of the collective work which a jury undertakes as a group which may be thought to give them a capcify for recollection and impartial judgment greater than the sum ofthut possessed by them as individuals. "266

Surveys suggested that most potential jurors h e w of Laurie Connell and a high proportion regarded him udavombly. Nevertheless, the following extract from the appeal judgment suggests that something closely approaching actual bias must be shown:

"In fhe present case there was no evidence that any particular juror was afected By actual bias. Putting if at its highest, there was no more than evidence of a statistical probcsbiliiy that a high proportion of potential jurors would regard the appellant unfmourably and that many, perhaps a majorig, had a tentative view that he wm p i l w of the charges he faced In such circumstances, it could not be said that the learned trial judge was in error in refusing to allow a challenge for cause. "267

In Queensland, section 47 of the Juiy Act 1995 (Qld) provides for questioning of jurors by the trial judge md counsel where a party can demonstrate there are "special reasons for inqui~y." A party seeking to invoke section 47 must ordinarily make an application at least three (3) days before the date fixed for Three recent appeals to the Queensland Court of Appeal by Bill kc J6', the former politician and convicted paedophile, show that "special remom " do not include a blanket assertion that potential jurors might be prejudiced due to pre-trial publicity. As stated by Keme JA in the most recent appeal:

"As this Coup-t hm made ckeur in its previous decisions involving this appellant, a sufficiently exceptional case is not made out simp& by pointing to adverse comments made in pahe media and suggesting that such comments have a general tendency to bead jurors to develop prejudicial feelings against an accused To go so fur, and no further, does not establish the 'suflcien t foundation of f~act to j~ksfrfi cscceding to the

264 insert page ref 265 See for example, Conned! v The Queen (1994) 12 WAR 133, R v Coranell(1993) 8 WAR 542 & BmI? v The Queen (1993) 43 FCR 549. 266 Conneldv The Queen (1994) 12 WAR 133 at 154. 267 Ibid at p 168. 2Gp Section 47(2), Jury Act 1995 (Qld) unless the judge, for "special reasons" dispenses with this requirement. 269 R v William Theodore D 3p.q (200 1) 122 A Crim R 268; R v D 'APT [2003 J QCA 124 & R v D 'Arq [2005] QCA 292.

application' (Murphy v The Queen (1989)167 CLR 94 at 103-104).To go only so far does not establish a risk that individual jurors mdy no f be "impartial" in the sews that they may be acfualky Biased alpainst the accused, or unable or umvilling to cornply with fhs directions of the trial judge to ignore prejudicial comments in the media about him. "270

In one of the Snowtown "bodies in the barrels" cases namely R v Bunting d ~ a g n e 2" Mr Justice Martin considered the inherent power of the South Australian Supreme Court to ensure that an accused received a fair trial. The Defence invited His Honour to question potential jurors by way of a written questionnaire to ascertain their impartiality. The proposed questionnaire included a question as to whether a potential juror had formed any opinion about the guilt or innocence of the accused as a result of the exceptionally large amount of pre-trial publicity. His Honour ultimately ruled against the proposed questioning though observed:

"Bearing in miid the objects sought to be atfained by the exercise of the inherent power; I am inclined to the view that it is not beyond the scope of fhat power to invite jurors to n m e r oral or written questions delivered by the Judge to each juror for the purposes of ascertaining info~mafion relevant to the exep-cise of the duties ofjurors in csparticukar trial. Exceptional circumstances would be required to just@ such a course. I~tpracfical terms, such questioning would not be far removed@om the procedure of challenge for cause. "272

Lastly, it should be noted that section 48 of Queensland's Jury Act 1995 enables a trial judge to discharge a jury upon empanelment if the composition of the jury may cause the trial to be, or appear to be, unfair.273

lej The Trial

Unlike America, juries in Australia are not sequestered or kept away from the media. Accordingly, Australian trial judges should instruct the jury instruct the jury at the commencement of the trial that they must ignore anythin which they have heard in the media and decide the matter on the evidence alone. 2 2

If, however, prejudicial publicity occurs durin the trial then an application to abort the trial and discharge the jury can be made.27BIn deciding whether to take this course, the trial judge may question the jurors to ascertain whether they have indeed

270 R v D Yrcy [2005] QCA 292 at para [24]. 271 120031 SASC 257 272 ibid at para [14]. 273 Perhaps this could apply in the unique factual cucumstances presented in R v Toh YEI Teng (1 987) 30 A Crim R 203. There was widespread prejudice within classes from whom an initial Christmas Island jury was to be drawn. 274 As was more recently done at the commencement of the triaI of Robert Paul Long, see R v Long ex parte A-G (Qld) [2003] QCA 77. 275 For example, Registrrar, Court of Appeal v WiIIesee (1 985) 3 NS WLR 650, R v Murpb (I 984) 1 67 CLR 94, Attoray-General for NSWv Radio 2UE Sydney Piy Ltd (unreported, NSW C of A, 1 1 March 1998). See generally: The Courts & the Media, Faculty of law, University of Technology, Sydney, Halstead Press, (1 999) at p 7 1.

been influenced by prejudicial The juror's individual responses can be taken under oath.277 Questioning the jury is not necessary. For example a trial judge at a Sydney murder trial felt bound to discharge a jury when John Laws referred to the accused a a "scum bag" during his 2UE radio broadcast.27"

In 2000, a Victorian jury was discharged due to prejzrdiciaI material being published on the Internet during the re-trial of one ~ c ~ a c l d a n . ~ ~ ~ The trial judge concluded that there was a real risk that the jury had or might become aware of entries on an internet service called CrimeNet which detailed the facts of the earlier trial. At the time of the re-trial, the merits of the website including the effect it might have on jwies, was also discussed in a Radio National program. Before discharging the jury, the trial judge noted that before the jurors were empanelled at the outset of the trial, they advised they did not know of the accused or the His Honour, however, could not rule out the risk of access to the website since that time. Of particular note, a "catch 22" dilemma had now arisen. Any fresh directions to the jury concerning the website might of itself cause speculation as to the accused's prior history. Of m h e r interest, His Honour very briefly considered keeping the jury together at all times prior to verdict. Sequestering the jwy as is sometimes done in America as in OJ Simpson's trial . 2 p v ~ following passage from His Honour's judgment encapsulates the dilemma faced:

"I do not think it is possible to cure this problem by any direction which has reference to the CrimeNef. If would be possible, of course, to give the j u g strong instp.uctiom that all it musf consider is what is heard in this court. Any reference to CrimeNet, either on the program this morning or to the site generally, even ff the jury were not able now to have access to the Infernet by being kept together, would have the risk of tg.iggey.ipltg speculation about the accused's prior histmy as a person fhat is worthy of note on ~rirncn~et.

Since July 2002, Section 69A of the Jury Act 1995 (Qld) prohibits jurors from enquiring about defendants until after a verdict. It includes Internet searches.283

276 R v George, Harris v Hirdon (1987) 9 NSWLR 527 at 533. h Registrar of the Supreme Cow6 of South Azrstralia v Advertiser Newspaper Ltd (unreported, SC SA, 1 7 May 1996, Bollen I), it was observed that the trial judge ascertained from the Sheriff that the jury had not read a prejudicial newspaper article. AIso see R v Pearce (1992) 7 WAR 395 where the trial judge was satisfied that it was unlikely that the jurors saw the relevant television program. '" In Registrar of the Court ofAppea1 v John Fairfax Group Ltd (unreported, NSW Court of Appeal, 21 April 19931, it was observed that the trial judge put written questions to the jury which had to be answered under oath pursuant to section 55D of the Jugv Act 1977 (NSW). 278 A ttorney-General for NS W v Radio 2UE ,Sydney Pty Ltd (unreported, NS W C of A, I 1 March 1998). 279 R v McLachlara [ZOO01 VSC 2 1 5. 280 Tbid at para [lo].

For example The People of the State of California v Orenthal James Simpson, Case No. BA097211, 24 January 1995, where the jury was sequestered for 265 days. 282 R v McLachIan [ZOO01 VSC 2 15 at para [ I 41. 2g3 Section 69A was not in force at the time of the trial of Robert Paul Long concerning the Childers Backpacker fm as noted in R v Long [ZOO31 QCA 77. See Hon Chief Justice Spigelman AC, The Internet LC the Right to a Fair Trial (2005) 29 Criminal Law Journal 3 3 1.

(f) Appeals

AppeIlate Courts are invariably loath to set aside discretionary decisions of a trial judge in rejecting an application for a stay based on prejudicial publicity.2x4 Only a rare or exceptional case wilI just@ such action.lg5 An extreme case would appear to require a horrendous crime where the published material was virtually conclusive of guilt.2S6~ven then, it is not clear that an accused would be entitled to a permanent stay.287 AS recently stated by the Queensland Court of Appeal in R v Long; ex parre Anorney-General ( ~ l @ ' ~ ~ , the ultimate question for an appeal court is not whether the case was an extreme case but whether "..there was nothing the judge could do in the conduct of the trial to relieve against the consequences of that earlier publiciy. "289

In deciding whether thcre has ultimately been a miscarriage of justice, a court of appeal wilI consider the whole of the trial proceedings including directions given to the jury. Mason CJ and Toohey J outlined the relevant considerations in R v

290 + Glennopa .

".... before it will set aside a conviction on the ground of miscarriage ofjustice, requires to be satisfled that there is a serious risk that the pre-trial pubEicity taas deprived the accused of a fair frial. It will determine that question in the Eight of the evidence as i f stapldr at the time of [he trial and in light of the wqv the trial was conducted, including the steps taken by the trial judge with a view to erasuring a fair trial. jJ9'

In R v Long; ex parte Afforney General, there were two pre-trial publicity grounds namely (a), that the learned trial judge erred in refusing to grant a permanent stay and (b), that there was a substantial risk of prejudice arising from the pre-trial publicity. As regards the general ground of prejudicial publicity, the Court of Appeal considered that there were sufficient directions by the triaI judge at the beginning of the trial and during the summing up to counter such concerns. Of note, the directions included an exhortation that the jury should not "..attempt any private investigafions of the matter. "292 T h i s direction and others were considered sufficient to counter the possibility that a juror could have accessed the Internet during the trial and could have discovered prejudicia1 publicity. "293 McMurdo P observed that there was absolutely no evidence that a juror or jurors had accessed the ~nternet:~%d J e m d JA stated that case authorities required the appellant to show more then a mere possibility that

284 As tritely observed by Davies JA in R v Long; exparte Attorney-General (Qld) [ZOO31 QCA 77, at para 48. Z8s bid. "' Pincus JA in R v Lewis [ I 9941 1 Qd R 613 at 639. "' hid. 288 [2003] QCA 77 2" [2003] QCA 77 at para 173 per l e m d JA. 2w (1992) 173 CLR 592 at 660. 291 (1992) 173 CLR 592 at 605-600. 292 AS outlined in the judgment of Jerrard Jk at para [ 1 721. 293 See [ZOO33 QCA 77 at paras [XI per McMurdo P distinguishing R v MacLachlan [2000] VSC 215; at para [42] per Davies JA; and paras [ 1691 - [I 331 per Jerrard J d . 294 [2003] QCA 37 at para 8, distinguishing R v MacLachlan, where there was a sipificant risk of the jury being wrongly influenced given the well publicised CrimeNet site and reference to it on the radio during McLachlan's re-trial. McMurdo P obsened that, even thcn, the remedy was to discharge the jury and not the granting of a p m a n e n t stay.

one or more jurors accessed the Internet infomation.295~urthemore, the Court of Appeal observed that a period of some 20 months had passed since the publication of highly inflammatory material. Shortly before his arrest, Long was described as 'bAushalia's Most Wanted" and his criminal history was published. There was also an allegation that Long once torched a caravan whilst his de facto was asIeep inside. Of some note, Davies JA observed that the pubIicity "would have made a fair pial exiremeEy dificult andpossibIy even impossible " had the trial took place immediately after Long's arrest.296

In considering the whole of the proceedings, an appellate court will take into account any questions from the jwy and whether the ultimate verdict or verdicts suggest that they only considered the actual evidence at trial in reaching a verdict.297

One wonders if it is nigh on impossible to have a conviction overturned in Australia on the grounds of pre-trial publicity.29"he only case that has come close is theLCpost conviction" publicity case of Tuckiar v where the High Court set aside a conviction on other grounds and ruled out the possibility of a fair re-trial due to adverse comments made by Tuckiar's own Defence Counsel at trial.300 In the leading case of R v ~lennon~' ' , the High Court, by a 4-3 majority, set aside a Victorian Court of Criminal Appeal decision which held that the trial of Father Michael Glennon had miscarried and was polluted by prejudicid sub judice broadcasts by Derryn Hinch. The Victorian Court of Criminal Appeal did not pay enough zflention to the steps taken by the trial judge in ensuring a fair trial. Mason CJ and Toobey J considered that the Victorian Court of Criminal AppeaI placed too much emphasis on I-[inch's conviction for contempt in deciding that the juror's must have been prejudiced.302

10. A Reflection on The TriaIs of Oscar Wilde

In having considered issues of contempt proceedings and various Defence applications, it is proposed to consider what codd have been further done at the criminal trials of Oscar WiIde in 1895 in light of prejudicial publicity.

On 5 April 1895 Oscar WiIde was arrested for acts of gross indecency upon young men. He was taken to Scotland Yard within hours of Wilde withdrawing his criminal defamation prosecution against the Marquess of ~ u e e n s b e r r ~ . ~ ' ~ A verdict of not guilty had been returned in the libel case after the trial judge told the jury that a plea

295 [2003j QCA 77 at para [170]. 296 [2003 j QCA 77 at para [34j. 297 In Connell v The Queen (No 6, (1994) 12 WAR 133 at 158-1 59 much weight was givcn to there being nothing to suggest or infer that the jurors were not true to their respective oaths. The fact that the appellant was convicted on one count and acquitted on another count suggested that they went about their task conscientiousfy and in accordance with directions from the trial judge. 298 See Evan Whitton, TriaI by Voodoo, op cit at p 90. 299(1934)52 CLR335 300 supra. 30' (1992) 173 CLR 592 302 see Mark Pearson, 7Tze Journalists Guide ro Media Law, op cit p 42. 3D3 John Sholto Douglas, the eighth Marquess of Queensberry. R v Qweember~ commenced before an Old Bailey jury on 3 April 1895 and ended on 5 April 1895. The renowned cross-examination of Oscar Wilde by Sir Edward Carson left none in doubt as to Wilde's homosexuality: H Montgomery Hyde, Famous Trials-Oscar Wilde, Penguin Books Ltd, (1 9621, p 8.

of justifiqation had been proved.304The Marquess had asserted that Oscar Wilde'posed asla sodomite.,305

London 1ewspapers spared no time in prejudging Wilde's guilt.306On 5 April 1895,for exam Ile, the London Echo gloated that Oscar Wilde was "damned and donefor"and that ounse1,the trial judge andjury were: "... entitled topublic thanksforabruptly erminating the trial, and so preventing thepublication ofprobably revoltingrevelatio s. ,,307On 6 Apri11895, the National Observer thanked the Marquess ofQueensb rry on behalf of the English speaking world for "..destroying the HighPriest of ecadents. ,,308On the day after Wilde's arrest, the Daily Telegraph stated:

"we hav

~

1 had enough of Mr Oscar Wilde,who has been the means of inflicting on thepublic du ing this recent episode as much moral damage of the most hideous andrepulsive kind as no single individual could well cause. ,,309

Despite

E

e subjudice rule, condemnation in the press continued for weeks.310CouldOscar W.lde have received a fair trial by an impartial jury given the damningnewspap r reports?311

The croL wasted no time in prosecuting Wilde. The first trial commenced in the OldBailey thin a mere three weeks of his arrest.312The first prosecution ofWilde was

a joint tri with one Alfred Tarlor and included a further count of conspiracyinvolvin one Alfred Taylor.31 This came about as Taylor had refused to turn Crownevidence on the gross indecency charges.314Clearly, Oscar Wilde was the chief targetof the pr secution.

Wilde's ~eadcounsel, Sir Edward Clarke QC, was unsuccessful in having the

conspira (Charged removed trom the indictment'" The Crown, however, withdrewI

304 Mr JUS

F.

Jce Collins directed a verdict of not guilty upon telling the jury that justification had been

proved: H ontgomery Hyde, Famous Trials-Oscar Wilde, ibid, p 148.The jury had not in reality

returned a Jerdict following the usual deliberation.305Mr Jus ce Collins directed a verdict of Not Guilty with a finding that Queensberry's plea ofjustificatio under the Libel Act 1843 had been proved: H Montgomery Hyde, Famous Trials-OscarWilde, ibi at p 148.306Sherid Morley, Oscar Wilde, Pavilion Books Limited (1997), p 120 & H Montgomery Hyde,Famous 1]ials-Oscar Wilde, p 158.307H Mon omery Hyde, Famous Trials - Oscar Wilde,pp 155-156.308!bid at 156.309!bid at 17.310Richar Ellmann, Oscar Wilde,Penguin Books Ltd (1997), P 446.3ll Sheri Morley, Oscar Wilde, op cit p 120. In denying bail to Oscar Wilde, Sir John Bridge, theBow Stree Police Court Magistrate, said he could think of "no worse crime. " H Montgomery Hyde,Famous 1]ials-Oscar Wilde, p 158.31226Ap' 1895.313contr

~to section 11, Criminal Law Amendment Act 1885 and one count of conspiracy to procure

acts of gro s indecency.314H Mon gomery Hyde, Famous Trials-Oscar Wilde, ibid, p 159.

315!bid at * 167-168. Clarke QC argued that the indictment contained inconsistent counts and put theprosecuti0f to an election. As the law then stood, the accused could only give evidence in chief on thegross indeeency offences and not on a conspiracy. They could, however, be cross-examined on all

alleged 0rtnces which was to the Crown's advantage.

36

the conspiracy count before the Defence case was opened.316 The first trial ended with a hung jury on 1 May 1895. Less then three weeks later, on 2 1 May 1895, Oscar WiIde was again put on trial though this time he was tried sepmtely to Alfred ~ a y l o r . ~ ' ~ Oscar Wilde was eventually convicted of gmss indecencies on 25 May 1 895.31"

Even between the first and second prosecution the newspapers did not Indeed, it appears that at least one newspaper published the first trial's hung jury vote as ten to two in favour of g ~ i l t . ~ ~ ~ What did Oscar WiIde's Counsel do about the publicity? What could have been done?

Counsel at the beginning of Wilde's first trial on 26 April 1895 sought an adjournment on the basis that he would not get a fair and impartial trial. The res onse of Mr Justice Charles was that "any suggestion such 0s that was groundless. ,,32P

Crown Counsel, in opening, told the jury to ':. dismissfiom your minds anything you may have heard or read about the prisoners. "322 As has been observed:

" Unfor funately Crown counsel was asking the jury fo so the impossiBle. The majority of the j q m e n were in no doubt alreaa'y strongly prejudiced against both prisoners, and the details which Gill now gave them merely sewed to deepen these prejudices. 9,323

Sir Edward Clarke QC, Oscar Wilde's Senior Counsel, in his opening address to the jury at the frst trial stated:

"The case has been commented on by a large section of the press in a way that I think is disgraceful. ... .Such conduct is calculated to imperil the adminis~ation of justice and is in the highest degree prejudicial to the prisoner. ''324

In his closing address to the jury in the first trial, Sir Edward Clarke QC implored the jury to ignore those things which bias ones judgment.325

316 Had the conspiracy not been charged then CIarke QC would have moved for separate trials: H Montgomery Hyde, Famous Trials-Qscm Wilde, p 195. 3 17 Taylor was tried by another jury and convicted on 22 May 1895 of all counts bar one count of procuration. The prosecutor improperly adumbrated Taylors conviction to Wilde's jury during the flown's closing address: Anthony Morrjs QC, Carson's Cross-Examination, (2003), Queensland Bar News, 3 1 at 36. 318 Convicted of 7 counts of gross indecency. Not guilty on a further gross indecency count. Taylor and Wilde both received the maximum sentence of 2 years imprisonment with hard labour. 319 h i d f% 4. 320 The Parisian L 'Echo de Plrris published this account on 4 May 1895: Sheridan Mo~ley, Oscar WiIde, ibid p 437. It appears that an English newspaper had purported to publish the vote: H Montgomery Hyde, Famous Trials-Oscar Wilde, ibid p 1 1. 32%~d at p 166. 322 b i d at p 168, Charles Gill of Counsel. 323 AS observed in H Montgomery Hyde op cit at p 168. '24 h i d at p 196. 32s Clarke QC stated: "I know with what extreme d~flculg it is that juries are able to eflace from their recollection things which bias theirjudgment, m d to address fhemselves on& to that evidence which is sound md true. " H Montgornery-Hyde, Fmoeds Trials-Oscm Wilde, ibid p 2 10.

Rather appropriately, Mr Justice CharIes began his summing up at the fist trial by endorsing Clarke QC's warning about bias by stating:

"For weeks if has been impossible to open a newspaper without reading some reference to this case, and especially to the prisoner Wilde, and I accordzngly entreat you to p t uwqv fiom your minds everything you w z q have read about the defendants, and to upply your minds fairly to the consideration sf the cme as it has been presenfed before you by the witnesses called on the part of the psosecution. I hope that you will not allow any preconceived opinions to weigh with you in frying two persons, both of good educafion, one of them being a man of high intellectual gifts. $1326

At the second trial, Sir Edward Clarke QC again referred to the prejudicial However, unlike the previous judge, Mr Justice Wills made no statement to fie jury in his summing up as to the need for vigilance in light of a hostile press.328

One wonders if more could have been done at the second trial concerning the need for jury vigilance given that the dust of darnnation still choked the streets of London. Arguably, the trial judge should have given or been invited to give a warning in terms of what Justice Charles had said at the fmt trial.

At the second prosecution of Oscar Wilde, Mr Justice Wills also told the jury: "there is some hufh in the aphorism that a man must be judged by the company he keeps"329 The trial judge went on to state: ".. you must notpresume t h ~ f fhe mere fact of fwo men sleeping together is something to be punished. "330 His Jkrdship observed that: 'Bpoverfy and mise~fiequently compel this to happen. "''' Arguably, these comments by the trial judge were inappropriate and perhaps invited an adverse verdict. Oscar Wilde was far from impecunious at the time of the alleged offences. There was clearly no need for Wilde to share a bed due to impecuniosity on his part. Perhaps by way of some balance, the trial judge did put the Defence case that at least two young men who gave evidence against Oscar Wilde had been "i~dustrious blachailers. "332

In reflecting upon the trial some 50 years later, Sir Travers Hwnphreys, one of Oscar Wilde's junior Counsel, concluded that we are bound to assume that the: the j u ~ y convicted Wilde. .. . upon the evidence in the case. ""' We will, however, never know whether other factors played on the minds of the respective juries in the Oscar Wilcle prosecutions.

326 H Montgomery Hyde, Famom Trials-Oscar WiIde, p 2 14. 327 H Montsomery Hyde, Famous Trials-Oscar Wilde, p p 254-255. 328 H Montgomery Hyde, Farnous Trials-Oscar RriIde, ibid p 262. 32g h i d p 266. 330 H Montsomery Hyde, Famous Triads-Oscm Widde, op cit at p 267. 331 Ibid at p 267. 332 Ibid at p 266. 333 h id p 14.

In relation to the hung jury at the first trial, Sir Travers Humphrey surmised that the jury might have taken umbrage at the relatively new offence of gross indecency by

The 1885 offence of indecent acts by males also extended to committed in private. There was some public concern when the offence was introduced that the law shodcl not be concerned with what happened behind closed doors. The amendment was dubbed in certain circles as the blackmailer's

What options were available to Counsel in tackling concerns of media bias towards Oscar Wilde? Were contempt proceedings a viable option? What about an appeal on the ground of pre-bid publicity? Was it possible to appeal to the Court of Crown Cases Resewed given that the Court of Appeal was not yet in existence?336

An appeal to the Court of Crown Cases Reserved required the sanction of the Attorney-General. Consent would have been politicaIly unlikely. The Liberal government at the time was determined to secure a conviction against ~ i l d e . " ~ ~ Indeed, there have been suggestions that the Prime Minister himself was concerned of personal repercussions if a conviction was not secured.338

Sir Travers Humphrey, also observed in 1948 that: "The newspapers, or some of them, cerfainly behuved disgracefully. 'We suggested that publication by one newspaper of the voting of the hung jury in the first prosecution would have been a gross contempt of

334 Enacted in 1 885. 335 h id p 12. 336 In 1895, there was no automatic appeal to the Court of Criminal Appeal. An appeal to the Court of Crown Cases Reserved was only possible on difficult points of law with the sanction the Attomey- General: Famous Trial - Oscar WiYilde, op cit at p 271. One can only ponder if the Attorney-General would have given such consent given the politics at the time. 337 H Mongomery Hyde, Fmozrs Trids-Oscar Wilde, jbid pp 223-224. 338 Queensbeny suspected that Prime Minister Roseberry had homosexuaI relations with another son, Francis Douglas, when Roseberry was Foreign Minister under Prime Minister Gladstone: Richard Ellmann, Oscar Wilde, op cit p 3 8 1 . Also see Douglas Linder, The Trials of Oscar WiIde. The Solicitor General, Frank Lockwood, pursued the second prosecution given the abominable rumours against: Roseberry: %chard EIlmann, Oscar Widde, p 437. When it was suggested by Edward Carson that Wilde not face a second prosecution, Lockwood said "we cannot, we dare not: it woerld at once be said, both in EngImd and abroad that owing to the names mentioned in Queensberpys letters we were forced to abundon it. " see H Montgomery Hyde, Famous Trials-Oscar Wilde, p 224. 339 Ibid p 1 I.