JURIES (PREJUDICIAL PUBLICITY) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 11 February 2015.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (17:00): I rise to speak on the Juries (Prejudicial Publicity) Amendment Bill 2015 and indicate that the opposition will be opposing this bill. This bill was introduced by the Attorney-General on 11 February this year and it is in exactly the same terms that were outlined in the bill in 2014, introduced late last year and lapsing as a result of the parliament being prorogued.

At the time the government considered that it was necessary to progress legislation in this form to deal with the potential ill surrounding the possibility of an application for stay of proceedings in a particular case which they felt may arise, although no indication had been made at the time that an application would be made. There was some remote possibility that it could and, therefore, the government should act to introduce this legislation.

That is a case which, at the time, was known publicly as the Families SA carer case. There were charges of multiple counts of unlawful sexual intercourse and child exploitation and, subsequently, the accused's name was released. That was a Mr Shannon McCoole, and he pleaded guilty to some of those charges, together with others which were laid in between. That occurred on 19 December 2014. So the case in question which I will refer to in a moment was alive at the time charges had been laid, and what was known at that stage was that an employee of a government department was being charged with crimes against children—allegedly children under his care—whilst he undertook his duties on behalf of a government department.

What was further known is that that particular case was the subject of ongoing investigation and, in particular, the rather arduous task of the police having to go through, apparently, thousands of photographs, and this was going to take years of scrutiny as part of, potentially, further charges. I mention that because these are the things that were known at the time and, in particular, the thing that was known at the time was that it was going to be potentially years, if a plea of not guilty was entered and continued, before a trial would have been heard.

Let's just look at what the bill proposes to do. It amends the Juries Act 1927. This is legislation which sets out the rules that are to apply to the empanelling and selection of juries, nomination of them, and all of the rules surrounding how juries are to operate in South Australia. In South Australia we do not have jury trials for civil cases but we do have them for serious criminal cases so we have a set of rules surrounding them and there is a whole lot of law that sits underneath that relating to the procedure to operate during challenges to membership of juries, etc., and I do not need to go into those today.

Section 7 of that act sets out a provision for trial by judge alone. It enables a circumstance where people can apply, in fact, to have their case heard by judge alone. They do not have to have a jury but they are entitled to have a jury, and the act sets out the statutory protection for that. However, this bill is designed to enable the court, that is, a judge in criminal trials, to order that the case be heard by a judge alone, even if the accused does not want a trial by judge alone, in a circumstance where the accused applies to stay the case on the ground that there has been prejudicial publicity sufficient to threaten a fair trial.

In short, there is currently a statutory endorsement of the century-old principle that someone has the right to have a jury determine their guilt or innocence in serious criminal matters and it overturns that if the accused comes along and says, 'We can't proceed,' or 'The court should not proceed with a trial,' because there has been such bad publicity surrounding the accused in respect of the matter that there is no way there can be a fair trial and, therefore, he or she should never go to trial. In other words, they 'get off', if I can summarise it as that, on the basis that if they cannot get a fair trial it is best not to have a trial at all and, therefore, they do not get a conclusion in the matter.

The Hon. J.R. Rau: That's not good.

Ms CHAPMAN: The Attorney interjects to say that that is not good and, if it had ever happened in this state, one might think there might be a basis on which to raise that question. However, our concern, essentially, is: do we overturn a centuries-old protection for an accused on the basis that it might happen—it has not happened before but it might happen—and it may be that someone would apply for a stay in those circumstances and be successful?

From our perspective on this side of the house, the possibility of that is extremely remote. It has not happened before in South Australia. There have certainly been applications for it and it may have been part of the consideration of a judge in stays that have been granted, but it is not something that is easily obtained. Indeed, we would say, on this side of the house, that the superior courts have set such a high threshold now in the interpretation of when these types of cases should be allowed, if ever, but in such a restricted circumstance, that it makes it near impossible to achieve.

The government is saying this is necessary given the considerable publicity and sensational headlines around certain cases. We say there is nothing new about that and that this has not threatened the provision of trials with juries—and fair trials, indeed—in the past, and there is nothing to suggest it could in the future.

We can look at some fairly notorious cases over the last 40 years, and let us consider a few of them and the headlines surrounding them. These are cases where there would be no stay of the trial as a result of the bad publicity around it. I am only going to take the ones since we have had television. There are some people in the house who can remember the pre-television days—probably the Attorney; he is that old.

Nevertheless, I think it is fair to say that, with the advent of television and with social media, the spread of publicity, of course, is much more expansive. The radio news that Maxwell Stuart has been arrested in Ceduna is a little bit different, necessarily, from today when of course there is a massive circulation of information. I do not think there is any question that with the advancement of technology, the development of television and social media it does mean that the infiltration of potentially prejudicial publicity is much greater. We do not have any issue with that, so I am not going to go back to explain what I am saying in this regard pre-television days.

I just ask members to remember the headlines that were across our newspapers and print media, bearing in mind that in those days we used to have two newspapers a day. Sadly, we do not anymore. We have a few online stories, but very limited. We had The Advertiser in the morning and we had The News in the afternoon. The Truro murders was a tragic case, of course, when in the 1970s I think in the end some seven females were found dead, and were buried in the lovely picturesque area of Truro, which is now stained; it is like the Snowtown cases, where it is now stained with this horrible history. Two people ultimately were convicted, one allegedly the principal and the other the accomplice.

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: Before he was in prison?

The Hon. J.R. Rau: I think so.

Ms CHAPMAN: Perhaps the Attorney is right.

The DEPUTY SPEAKER: He couldn't have been in prison while he was killing himself with a car, could he?

Ms CHAPMAN: No, I am not sure that he had not already been charged. In any event, only one of them ended up going to prison and since has actually been released.

The Hon. J.R. Rau: Worrell and Miller.

Ms CHAPMAN: Worrell and Miller were the two parties. We have other experts here who probably remember these cases. I do not want to get into the detail, I just want to make the point that it was a very notorious case. We had incredible headlines in newspapers like, 'Mummified body was curled up like a cat'. We had grotesque pictures of detectives carrying this poor mummified body wrapped in plastic. This was in the days when pretty gruesome descriptions were in papers. Of course, we then had an almost daily diet of information about other bodies that were recovered and the searches for them.

The pictures of the accused were not very flattering, to say the least, and it had an enormous amount of publicity. I think probably the most publicised other case during the 1980s was when Mr von Einem was charged with the murder of Richard Kelvin and subsequently convicted. Surrounding that were days and days of publicity—television and newspapers—with pictures, sadly, of the deceased young man, and also pictures of Mr von Einem.

At the time there were repeated headlines in respect of the alleged involvement of Mr von Einem with the Mark Langley disappearance and murder and the Alan Barnes disappearance and murder, also gruesome murders, grizzly headlines on an almost daily basis. We then have headlines that come in by the early 1980s, 'Police hunt second man. We believe other people were involved.' This is what we read in the newspapers. The front pages: 'Charged man, 37. How the drama was broken', all the detail of what happened during the police investigation, etc. We have denials of allegations and the like.

The other one that I have had a look at is the death of the children in the Pearce family. Stuart Pearce disappeared and his children were found murdered, along with their mother. Thankfully, one of the children had been visiting neighbours next door and, as a result of not being in the house, was not a victim. Again, we had huge 'Wanted' headlines for the suspect of the killings, etc.

I do not have it in my file at the moment, but we had the Bartholomew case, which some members will remember, I am sure. Again, that was in the 1970s. In short, Clifford Bartholomew killed nine or 10 people—his wife and I think seven or eight of his own children and a nephew who was staying over. It was in a country area and, again, we had some pretty grizzly headlines. One of the articles had a halfpage photograph of Mr Bartholomew after his arrest—hardly a flattering picture, I might say. He was charged, as I have said, and subsequently convicted and then released after eight years. There were more statements and headlines at that time because, essentially, he had only spent in gaol the equivalent of about nine months for each person he had murdered. Again, incredible headlines. The whole thing was obviously a shocking tragedy for this family.

More recently, one which occurred shortly after I came into the parliament was the shooting and cold blooded murder, as it turned out, of Dr Margaret Tobin here in Adelaide. The publicity around that was very extensive—things such as 'Sydney man held over city killing', etc., and then the details surrounding it and quite a lot of detail about what happened; I think that Dr Tobin had been coming out of a lift.

Even in circumstances where there perhaps had been some initial suppression of the name of the accused person who was ultimately charged, these are grizzly headlines, full of detail that would clearly be potentially very damaging if a subsequent juror were to read them or see information on television and then be affected by it sufficient to suggest that the accused person may not get a fair trial. In some of these cases, an application had been made for a stay of the proceedings but, as I said, that was not successful.

Sadly, I think that we have about 20 murders a year in South Australia, and they come with some fairly ugly headlines. One of the more recent ones I have looked at is the tragic killing in May last year, I think, of a mother of three in Port Elliot, I think, by her former de facto partner, who then suicided. These are terrible cases. they come with shocking headlines and they are with us on a regular basis in our media diet.

My point is that at this time there has not been a situation where the government has come along to us to say, 'We've had these situations where people have got off and therefore we need to relook at the question of the legislative restriction of access to this means by which people are avoiding the law, or at least avoiding least scrutiny by the trial, and we need to act on it.' We say that in all this time there not being successful applications, there not being people getting off in this situation, it is not necessary at all to ensure fair trials simply because fair trials are not being threatened.

I just want to briefly turn to the case of Mr Shannon McCoole because that had the headlines, 'Families SA carer charged with child sex offences' and, boy, that really did attract some modern-day offence, in the sense that it was only last year. It hit the headlines in the middle of last year, in about July, with headings such as 'South Australian government worker charged with sexually abusing preschool children in residential care'. That was on 23 July and the first headline I read about that case.

Then there were details with headings about at least seven children in state care, many preschool, being abused, allegedly, by this government employee. What I think was extraordinary and quite unprecedented was the convening of press conferences at the time by the Premier, by the then deputy chief executive of the Department for Education and Child Development and by police to give statements about the charges in that case.

Certainly, there have been plenty of situations where a commissioner or a senior investigative officer at the time of a body being found or someone being charged comes on the television screen saying, 'We're just advising the public that a suspect has now been apprehended in the X case.' It is designed to inform the public—and they are entitled to be informed—of the basic information. I think it is also to reassure them, especially in cases where there is potential predatory behaviour, apparently, of the accused and to give some reassurance to the public that the suspect has been caught.

Generally, it is to give a responsible presentation to the public via the media about the progress of the case. It has happened frequently in the past, and I think that it is a good thing. I think that it is appropriate that the police commissioner or someone at a senior level makes those statements and lets people feel a little safer, etc. All of that is important, but what happened in this case? I can tell you what happened in this case: the Premier, no less, called a press conference and came out to tell South Australians about his version of what happened in this case and what was happening in respect of a person being charged. In his own words, he described the then alleged offences in this case as 'acts of evil'. If that is not inflammatory, if that not potentially prejudicial, I do not know what is.

The highest officer in the state, the Premier of the state, is the person who comes out and calls a press conference and describes the apparent conduct of the suspect at that stage, the person who is then arrested, as 'acts of evil'—not child sex offences but 'acts of evil'. Unsurprisingly, they then hit the headlines and they are then spread all over the publicity that is then actually being used as a basis for the Attorney to come in here and say to us that we need to change the law to strip the right of people to have a jury trial if they dare to come in and apply for a permanent stay of the hearing of their case on the basis that they cannot get a fair trial arising out of prejudicial publicity. I think it is extraordinary.

To me, this legislation tells us more about a government that is embarrassed that one of their own employees has been caught in obviously very unsatisfactory criminal behaviour towards multiple children whilst they were in the care and supervision of the government. It tells us more about the government wanting to protect themselves against there being publicity by having a big jury trial, etc., and wanting to keep a blanket over this case. That is what it tells me.

They are not worried about whether Mr McCoole (as we now know him, having pleaded guilty on 19 December) may possibly apply for a stay. If he did, you would have to ask: who is responsible for this apparent reckless behaviour of the media putting out all these headlines that have caused prejudice to the process? Who is responsible? The number one person responsible in that case was the Premier. I think it was grossly reckless and irresponsible of him to have acted in such a manner, and then for the Attorney-General to come and ask us to pull some veil over all this by dealing with a judge-only hearing, not having the openness that goes with a jury trial as such—

Mr Bell: Shameful.

Ms CHAPMAN: —I think is not just shameful, as the member for Mount Gambier says, but also completely without foundation because of two things: first, in that case there never was an application to stay and, secondly, there was every likelihood it would be years before that case was going to come to trial in any event, so those who might have been around at the time and possibly affected by publicity in 2014 (this case was going to be heard in 2016, 2017 or 2018) would be years away from the offending prejudicial publicity.

I should add a third reason and that is, quite obviously, that since then he has pleaded guilty and the case is not even there anymore as one that might be likely to be used or, as the Attorney would probably consider, abuse the process of being able to get away with not being tried. I cannot see in any way that there is a capacity for the argument that that case should justify this occurring.

I have sought advice on whether there had been any consultation with the Law Reform Institute in South Australia for consideration of law reform, as this is clearly a major area of law reform. It appears that the institute's advice has neither been sought nor given, of course. It probably does not even know about this reform but, in any event, they have not been asked even to consider it, which I find astounding.

The best I can ascertain is that it has come some light bulb moment of the Attorney-General's, but it is possibly that generally the government was concerned about there being too much publicity, as I say, which I think that they have perpetuated themselves around the McCoole case and that that could backfire by a potential application. In any event this appears to have been a light bulb idea of the Attorney's.

I also want to make the point that, whilst there have been applications made for stays, many have been rejected. Probably in the most recent years the most famous application for stay that was rejected was in the Eugene McGee case, where, subsequent to the initial fiasco surrounding that matter, there was an application by Mr McGee and his brother for a stay, and that was not granted. Clearly, the judge hearing that interim application was not satisfied that there was sufficient prejudice in the surrounding publicity.

Let's face it, everybody in this chamber would know about the Eugene McGee case even if you did not know the details of the death of the cyclist who had been run over by Mr McGee. We had the Kapunda royal commission, we had multiple court cases, and we had headlines almost every day over months— years really. It culminated in further headlines when the government sought to deal with the disciplinary action of lawyers generally by the legislation appointing and establishing a legal practitioners' disciplinary commissioner in place of the legal practitioners' conduct process.

We have relived that issue for some years. Even in the circumstances where we were well into that sort of foray of publicity surrounding that case—the tragedy of the event, the alleged conduct of Mr McGee— all of this was out there, and with all of the laundry, dirty as it might have been, across the headlines they were not granted a stay. That tells us how high the threshold must be to be successful. It has been suggested to me that the application in 2010 by Mr Peter Liddy, who was a former magistrate who was incarcerated as a result of being convicted of offences of sexual misconduct towards young boys. Again, there was a huge amount of publicity around the original case; but whilst he was in prison in 2010 he was charged with other sexual offences with other minors who had come forward, I think some 30-odd years or so later from the alleged offences. His counsel applied for a stay of those proceedings on four basic grounds.

One was that there had been a considerable delay since the allegations were raised. As I say, we are talking decades. Secondly, he was already in custody for life for offences against other young boys. Thirdly, there were assertions that he was in a very poor state of health. I am not sure entirely whether it was physical or mental health, but apparently medical evidence was presented that he was in a poor state of health, and questions of mental capacity were raised in that. Finally, there was the question of adverse publicity.

It is true in that case that a stay was granted, and he has not been brought to justice, so to speak, by having another trial in respect of those cold cases, as they are sometimes called, having been revived. Perhaps on its own the decades-old allegations, or perhaps on its own that he was already in custody would not have been enough. Having a quick look at that case, probably the most likely and most persuasive ground that ultimately the judge accepted to grant a stay was in respect of the health of the accused.

I do not need to go into much more detail about it but, suffice it to say, I am not satisfied that that should be held up as a case that would justify, almost in a threat to the accused, that if you apply for a stay, you are not going to get a jury or you run the risk that a court will order that you do not get a jury and that you will have to have a judge alone. I am completely not persuaded by that.

Just yesterday I received a second letter from the Attorney-General; I had received some information after having a briefing with representatives from the legal services of the Attorney-General's Department, including Mr Matthew Goode who is very helpful in assisting us as members to have an understanding of what these laws are about. We had that briefing last year but again this year when the bill was reintroduced.

I had been provided some information about provisions in Queensland on the basis that the government had said, 'This has been operating in Queensland and there is a provision there where there is a power for a court to be able to make a no jury order,' which is what they call it up there, if it considers certain circumstances—the burdensome nature, the complexity of the case, too burdensome for the jury and risks to jury members that they might be committing an offence and various other grounds.

However, it was presented to us that one of the grounds in their legislation suggested that there had been significant pre-trial publicity that may affect the jury deliberations, which is the gist of what we are talking about here, and that there had not been any reported cases. However, yesterday I received a letter from the Attorney-General which tells me that there are four cases where there had been prejudicial pre-trial publicity. Whether no jury orders were made as a result of that or for other reasons, I do not know because I have not had a chance to read those cases, but these cases were apparently unreported cases. It does not fill me with confidence.

If there had been cases where there had been no jury orders made as a result of any reason, then particularly if that is on the grounds of pre-trial prejudicial publicity, then I would be astounded if they were not reported. However, it is not to say that these might add some weight to the government's argument but it may be that they are all cases that there has been consideration of other factors. I do not know. One of them is R v J.M. Patel. I might be wrong but it might be that that was the case in relation to the medical practitioner in which case I have no doubt that there are a whole lot of other issues surrounding that case relating to other than pre-trial publicity.

We have seen in that case—and this is entirely from memory now—that there had been quashing of conviction after some earlier trial and I think, from memory, some fairly strong comments made by the judiciary in respect of the action of the executive or at least some members of the executive of the federal government. That is my recollection of it but I would have to have a look at that in some detail. In any event, as it currently stands I cannot be persuaded.

I sought the advice of the Law Society, that tells me it has already presented a submission to the Attorney; indeed, it has forwarded me a copy of its submission, and I think it is fair to say that that makes it abundantly clear that the Law Society is not satisfied there is any basis for this bill. It opposes it and confirms, as we have, that it is not necessary. It has reiterated in detail that from its point of view the High Court has lifted the bar so high for accused persons applying for a permanent stay based on prejudicial pre-trial publicity that it is unlikely an application will ever succeed.

The Law Society may be right, and has probably put that more eloquently than I have in the last 10 minutes, but it considers that the loss of a right to a jury trial is just untenable in those circumstances: no identified risk, no real likelihood of their being successful, and there being a tragedy in the eyes of the public.

The other thing that the Law Society raises—and I am not entirely with it on this aspect—is the fact that, in its view, if you have these no-jury orders made in a way it almost gives carte blanche to the media to go about being even more reckless in their description of these cases. Because there is no question of prejudice, because the judge can sit there completely immune to all this material, because there is not going to be a jury that could be affected, it will be just carte blanche for anyone who wants to write stories about this before and during the hearing of the case. There may be no constraint on them to act responsibly.

I think that is probably a bit of a quantum leap. I do not think our media have a general reckless disregard; they have a code of conduct and ethics in respect of how they operate and whilst they can be criticised from time to time as a group, I think that is an unfair criticism. I think it is an unfair assumption by the Law Society that it will somehow or other open the gates for them to be able to report as they see fit, as though they have lifted the safeguard and they can run amuck.

I am not convinced of that, but the Law Society does raise another point: that is, if there has been prejudicial publicity, and that has been as result of the reckless conduct of a journalist or a provider (the television company or the editor a newspaper or the like), or indeed if a person has been making statements recklessly—like the Premier in the McCoole case coming out and having a press conference to describe acts of evil, which, as I have already said, I think is grossly reckless and totally inappropriate, and completely unnecessary when the police can tell us what has occurred. How should it translate that the accused, through no fault of his or her own (that is, they cannot be responsible for the reckless misconduct over here of a premier or a journalist), then lose their right to a jury when they apply for a stay on the basis of loss of fair trial. I find that quite unfair; it is just unconscionable. So I think the Law Society has a point in that regard, and I think it presents a persuasive case.

Apart from just the general principle of outlining—which it made very clear to the Attorney—the removal of the right to a trial by jury could also prejudice those who are jointly charged. This is something we have raised along the way. Someone who misses out on a jury trial because they have to be jointly charged, even if the publicity is all about someone else, a co-accused and not the person about which there has not been any prejudicial material, then that other party, the co-accused, could be the victim of an order that says there is to be no jury when it has been determined for the other co-accused. In short that means, if conduct is reported in an inflammatory, potentially prejudicial way about one, then the other is going to have to wear that. Again, I find that quite unconscionable. The other area that has been raised is where the accused does not want to have a judge alone, for whatever reason, then they are forced to have to apply for a stay and run the risk of being told, 'Okay, you are going to be stuck with the judge alone,' or you do not apply and then you have a jury trial with the consequent risk that they are prejudiced in their mind to such an extent that they may not be able to have a fair trial. So they are really caught between a rock and a hard place as to whether they should apply.

There are situations where the accused is very reluctant to have a judge alone, and there are some cases where people are accused and they are advised to have a judge alone. It may or may not be the case there but we have had situations before where the accused may be a person, for example, of physical stature which is pretty grotesque. Some of the wisdom in those situations is that if they are a big, tall, ugly bloke and the charge relates to a young child, then perhaps a jury will not be able to look past that and dismiss from their mind that appearances are not something that should make them feel some lack of sympathy or stop them from at least making some fair assessment of the accused in their deliberations.

The assumption is that a legally-trained judge who is trained to only look at the facts, etc., is going to dismiss these other things that might not put them in some favour and, therefore, they might elect to have a judge alone to try to get a fair trial. If an accused thought that the 12 men and women true, sitting on the jury, would not be able to look past someone who was manifestly and grotesquely offensive in their appearance, for whatever reason, they might ask for a judge alone.

I understand still that lawyers and sometimes police if they are charged might think, 'Well, I do not really want a jury; I would actually rather run with the judge.' Lawyers are not really liked and probably politicians, too, if they were charged, would probably consider trial by judge alone. Again, just the association by profession may be a basis upon which counsel would advise that accused to apply for a judge alone. That is a sacred right of the accused. We have a fine balance in our criminal system to ensure that the rules are fair and that we, as best as possible, have a criminal law system which captures the guilty and protects the innocent and not the other way around. I think largely we have it right, and the right to a fair trial and the right to a jury trial is part of that.

The other thing that the Law Society points out is the inconsistency with commonwealth law. If they are charged under commonwealth criminal codes, they have a right to a jury, and it is really hard to get out of, and we would face some very serious inconsistencies.

It certainly does raise some challenges that I do not think of itself would be sufficient for us to be persuaded in this argument. I would not be by that alone. They have developed under different systems and, thankfully, we still have the lion's share of the criminal law in the state arena and the commonwealth only has certain areas in relation to marine and some other commonwealth offences. Largely, we still have responsibility for that at the state level so the jury trial situation, of course, is very much more limited.

The requirement under commonwealth law for the accused to have a jury trial, I think, is probably distinguishable in this argument. Nevertheless, the Law Society raised it as an argument. If that is not enough, of course, the Bar Association has had a good crack at this as well, and they also support the position as I have outlined by the Law Society.

Unsurprisingly, members of the legal profession have come forward, and former judges have come forward, and raised concern about this bill and how it would actually work. It is not just the principle which we have outlined and, obviously, some have raised some similar views. I think there was one academic, a former ALP candidate, who went on radio to tell us how this has some merit—a professor at the law school—and to say this is worth having a look at. I have not heard anyone else come forward to say it is a good idea.

I am struggling to be persuaded about this light bulb moment of the Attorney's, in a circumstance where his Premier has probably breached the standard of recklessness in the case that he has quoted. There is just no-one else lining up to say that this is a good idea. The Attorney certainly has not persuaded us on this side of the house.

I will just say that I have not had any material presented to me of what the Chief Justice or the Chief Judge have had to say about this. I have already pointed out that the SA Law Reform Institute has not even heard of it. They have not been asked to have a look at this matter. It is unconvincing and it will be opposed by the opposition.