R v Merrick [2016] NSWSC 163

Supreme Court New South Wales

Medium Neutral Citation: R v Merrick [2016] NSWSC 163 Hearing dates: 29 February 2016 Date of orders: 29 February 2016 Decision date: 29 February 2016 Jurisdiction: Common Law - Criminal Before: Wilson J Decision: The application is refused and the motion is dismissed. Catchwords: CRIMINAL LAW – application for a change of venue – whether accused will receive a fair trial – question of whether jury panel may be prejudiced by social media publications – possibility of bias or apprehended bias Cases Cited: R v Milat CCA 60438/96 [1998] NSWSC 795 The Queen v Glennon [1992] HCA 16; (1992) 173 CLR 592 Webb and Hay v The Queen [1994] HCA 30; 181 CLR 41 Category: Procedural and other rulings Parties: Regina Ross Albert Merrick Representation: Counsel: Mr B Campbell (Crown) Ms T Evers (Accused)

Solicitors: Solicitor for Public Prosecutions (Crown) Armstrong Felton (Accused) File Number(s): 2013/00369082

ex tempore Judgment 1. This morning before this Court the accused, Ross Albert Merrick, was arraigned upon an indictment that charges him with the murder of Marika Ninness on 21 December 2013 at New Lambton Heights. On arraignment, the accused entered a plea of not guilty to that charge. 2. His counsel moved upon a notice of motion previously filed with the Court. The motion seeks orders that the venue of the trial be changed. Specifically, what is sought is that the Court change the venue for the current trial to the Supreme Court sitting in Sydney, that the trial date for today be vacated and the matter be further listed to fix a fresh trial date in Sydney. 3. In support of the motion, the accused has tendered and asked to have read two affidavits and a number of annexures to those affidavits. The first of the affidavits is one sworn and filed by the accused's solicitor, Mr Felton. That affidavit annexes a number of documents, all of which appear to be printouts or downloads from a social media site, Facebook. The second of the affidavits upon which the accused seeks to rely is an affidavit of his mother, Cathy Moss, dated 3 February 2016. Ms Moss also refers to and annexes to her affidavit some documentary material, part of it from Facebook and part of being copies of correspondence. I will return to the detail of the evidence shortly. 4. The Crown did not require either deponent for cross-examination. 5. The accused's contention, broadly, is that, because of posts or entries made on Facebook, he would not be able to receive a fair trial if his trial were to be held in the Newcastle area. The argument is that there is a basis upon which to conclude that the Facebook posts irretrievably give rise to a perception in the reasonable and fair-minded observer that the accused could be tried by persons potentially infected with bias against him. 6. Of course, when considering that test, one must import another feature to the fair-minded and reasonable lay observer, and that is that that person is assumed to have knowledge of the relevant considerations that the tribunal would ultimately have regard to in determining the matter before it. 7. Returning to the evidence upon which the accused relies, principally, as I have indicated, consisting of posts to the Facebook social media platform. The annexures to Mr Felton's affidavit, annexures A, B, C and D, are printouts of posts made by various people. The posts refer to a number of matters connected with or concerning the current trial, the accused, and the murder with which he is charged. There are references in the material to bail laws, complaints that the accused should not be on bail or, more specifically, a complaint that no person charged with murder should be admitted to bail. There are references to the accused's apparent employment as a male stripper. There is reference to events before the Court, that is, the adjournment of the matter and various other orders made by the Court from time to time. There are complaints about the delay and the time it takes to "get justice". There are references to the accused making up what are described as "bullshit stories" to "get off" the charge. There are references to him, being on some other social media platform, referred to as Tinder, and "picking up girls". There are comments about possible violence to another partner nominated as Alice, and there are derogatory comments which deride the accused personally. 8. The posts appear to be made amidst or between a closed group of people. There seem to be about thirty people who have participated in the discussion on Facebook. Some of them have been identified as being either former or perhaps serving police officers. One, having a closer relationship to the deceased, has been identified as a former employee of the Department of Attorney-General and Justice. 9. Ms Moss' affidavit refers to the same material as that contained in Mr Felton's affidavit and additionally sets out some steps that she has taken to complain about the conduct of someone who she believes to be a police officer. There is some correspondence with the Police Integrity Commission concerning that complaint and some information about steps that were taken by the relevant authorities in relation to Ms Moss' complaint to the Police Integrity Commission. 10. There is no evidence tendered on behalf of the accused as to the operation of the Facebook platform. It is not clear to me on the evidence how many people could have access to these posts or, indeed, how one would go about accessing these posts. It would appear from the evidence that the material is only able to be seen by someone who is what is known as a "friend", some sort of status or approval which, I infer, gives access to other people to read posts made by particular individuals. 11. In the absence of any specific evidence of the operation of Facebook, and it not being something about which I consider I either should take judicial knowledge or indeed can, since I have no knowledge of the platform myself, it is only possible for the Court to infer who can access this material and in what circumstances. It appears that the material is not open to all and any user of Facebook but only to those who have a particular status or membership of a particular group denoted by the term "friend". 12. The posts themselves do not suggest that there is widespread distribution of this material. It seems to be about thirty people who have had some input into the Facebook discussion, although there are some entries which refer to larger numbers of people as "liking" the post. Most of those who have made a specific comment or entry to the site are identifiable either by their name or their photograph which, on the evidence, accompanies the posts that have been made. On the evidence, the number of people who have actually accessed this material seems to be very small. 13. The accused argues that Facebook posts or posts in the nature of those in this present matter are far more insidious than news media reports of a more conventional type because it is not possible to track who might see such material and be influenced by it. The accused contends that his trial will be irredeemably prejudiced or, at the least, will appear to the reasonable and fair-minded observer to have been so. The accused refers the Court to the High Court decision of Webb and Hay v The Queen [1994] HCA 30; 181 CLR 41. That is a decision which deals with an application for a discharge of a juror on the grounds of potential partiality and it sets out the test that traditionally is applied to applications for disqualification on the basis of either actual or apprehended bias. That test is well settled and I do not need to set it out in any great detail here. It is that which is commonly known as the reasonable and fair-minded observer test. 14. In disavowing those cases which relate to media publicity of a more common kind, no reference has been made by Ms Evers to some of the decisions which ordinarily one would consider to be apposite to an application of this nature: The Queen v Glennon [1992] HCA 16; (1992) 173 CLR 592; another is R v Milat CCA 60438/96 [1998] NSWSC 795. It seems to me that the ultimate question is whether the accused can receive a fair trial in Newcastle and be seen to receive a fair trial, having regard to the evidence placed before the Court which is relied upon to establish that he cannot. 15. Having considered all of the Facebook material and the other evidence relied upon by the accused, I am not persuaded that the evidence in fact establishes that there is any real threat to the integrity of the trial if held in Newcastle. 16. Ordinarily, criminal offences should be tried in the area in which they are said to arise. That is the best way of ensuring that justice is not only done but is seen to be done. 17. The accused is to be tried by a jury of 12 and, in part, therein lies the solution to any possible prejudice that could arise as a result of Facebook posts. 18. The first thing to be noted is that the Facebook posts, on the evidence tendered, seem to be fairly restricted. Those actively commenting are limited in number and the majority are capable of being identified. There is no evidence to suggest that these posts have been widely seen and would in fact have the sort of prejudicial effect that the accused contends because of a potentially widespread readership. 19. Being on notice of this material and, in any event, proceeding to empanelment in the usual course, it is open to the Court to raise the issue of Facebook communications with the jury panel and have any person who has been a participant or a reader of posts on Facebook concerning either the accused or the forthcoming trial to identify themselves. That would be one means of disqualifying persons who have some knowledge of these proceedings via Facebook. 20. The next is in the fact that the Facebook authors by and large are readily identifiable. Were any one of the persons who has posted to Facebook on the jury panel and ultimately called as one of the 12 selected for duty, knowledge of the posts would, I think, give either or both parties a sufficient basis of either preemptory challenge but, more particularly, challenge for cause and, again, that measure would lead to the disqualification of persons who could potentially have a prejudiced view. 21. The Court does, as a matter of routine, and would in this particular trial, give strong directions and warnings to the jury once empanelled and throughout the trial, and prior to the jury considering its verdict, that the jury members disregard anything they may have read in any media service, whether that be the daily newspapers, printed or digital, or entries on a social media platform. 22. In any criminal trial, and particularly a criminal trial that has any notoriety, there is always a danger that a juror could have irrelevant information, information not tendered by one of the parties or, indeed, prejudicial information concerning an accused or the crime that is being tried. It is the traditional method of the Court to deal with that potential risk by giving directions to the jury. The courts must proceed on the basis that jurors will listen to directions that they are given, abide by those directions and apply the directions when it comes to determining their verdict. 23. Jurors in a criminal trial have a great responsibility placed upon them. The courts endeavour to give them the tools to fulfil their responsibility and to do it in a way that complies with the dictates of justice. The corollary of that is that the Court must be able to proceed on the basis that jurors and juries will discharge their great responsibilities with the care that is required of them and disregarding extraneous information. 24. Here the evidence does not, in my view, establish any particular risk that vast numbers of people have seen these particular posts. Those that have can be weeded out of the jury that will ultimately be sworn and charged to try this case by the methods that I have already referred to. Should it be that there is ultimately a juror who may have some knowledge of the matter through ordinary press coverage, that also, in my view, can be dealt with by appropriate direction. 25. For my part, I do not see that there is any real distinction between the prejudice that could flow from entries on a social platform, as opposed to the daily coverage that one might see in the ordinary news media, whether it be print, electronic or radio. This case probably received a degree of media attention, with reports of the proceedings before the Court and so forth, and it may be assumed that at least some in the panel may have seen those press reports. They will be told to disregard that information and the Court must operate on the basis that they will do as they are directed. 26. Social media websites of the nature of Facebook are not restricted to a local area. The Internet is international, global, and it would appear that, regardless of an individual's geographic location, anyone having the status of "friend" and able to access this material can do so, whether they be in Newcastle, in Sydney or, as indeed one of the participants appears to have been, in Queensland. In that sense, the geographic location of the trial cannot really address the risk that is said to arise here. A Sydney person with access to this material as a "friend" could see it in the same way as a resident in the Newcastle area could access and see the material as a "friend". A change of venue would not resolve any potential issue arising from that. 27. What does and will resolve any issue that may arise is the empanelment process to which I have already referred, and the directions which the Court can and will give to any tribunal of fact. On that basis, I am not persuaded that there is any risk that this trial will not be fair to the accused or that the reasonable observer, fully informed of all of the facts of the matter, and a fair-minded individual, would conclude that the accused's trial was so prejudiced as to be unable to proceed in the local area. 28. On that basis, the application is refused and the motion is dismissed.