Vic Appeals says that “infelicitous” remarks from the trial judge were not unfair … Trial judge is “not trying to be unhelpful”, yet undermines defence counsel … Murder case where the jury sees the judge poo-poo the defence … Failure to be circumspect … Summing-up miscarries the entire show … Court orders another round … Ginger Snatch reports
Vic appeals (Phillip Priest, Richard Niall and Terry Forrest) said that Justice Paul Coghlan showed a lack of judicial circumspection in summing-up to the jury in such a way that prejudiced the accused’s case.
The trial gave rise to its fair share of doubts. Elia Abdelmessih was bludgeoned to death at his home in East Kew. A statue of the Virgin Mary could have been one of the items used in the attack.
Pyliotis’s DNA was found at the scene of the murder, yet Susan Reddie, whose DNA was not found at the scene, confessed to the crime.
As she said to the police:
Ms Reddie, now deceased, has been providing sexual services to Mr Abdelmessih, at $20 a time. Ms Pyliotis worked at McDonald’s, which Mr Abdelmessih visited three times a day for meals.
The coppers thought that Pyliotis was the guilty one, and Reddie’s confession unexpectedly underwent a reversal, but mysteriously the relevant police diaries recording her recantation were lost.
In the presence of the jury the judge made some blunt and unhelpful comments about counsel for the accused, Richard Edney.
He had been cross-examining a forensic scientist as to whether there was a photograph of a blood-stained print near the front-door of the victim’s house:
The view of the appeal judges was:
“Even if it be assumed that counsel’s cross-examination had been overly long, and that it had thereby caused the trial judge some frustration, that provided no justification for the judge’s remarks.
To describe counsel’s cross-examination as ‘boring’ – indeed, ‘even more boring than the other bits’ of his cross-examination – had the tendency to demean counsel’s competence, and to run the risk of diminishing his standing in the eyes of the jury. Comments such as these – if they are ever justified – should be reserved for occasions when the jury is absent.
In our view, however, although the remarks were infelicitous, they would not have had any significant impact on the fairness of the applicant’s trial.”
That was not the end of it. Coghlan sank the trial because of his charge to the jury, which suggested they shouldn’t place much store in the defence’s case that there was a reasonable possibility that Ms Reddie was really the murderer.
The Vic CA pointed to McKell, where Bell, Keane, Gordon and Edelman said:
“… the trial judge’s summing-up is not an occasion to address the jury in terms apt to add to the force of the case for the prosecution or the accused so as to sway the jury to either view. For that reason, as the plurality in RPS stated, judicial circumspection is required in the exercise of the discretion to comment.”
Coghlan’s remarks might have foreclosed the possibility to the jury that Susan Reddie was at the scene of the crime; that acceptance or rejection of the evidence about the recantation was of no moment, when in fact it was a crucial part of the defence case; and there was not much evidence that Reddie had a propensity for violence.
All in all a juicy miscarriage of justice. Go back and start again, if you can bear it.