In a spectacular final day in the Greg Fisher trial, District Court Judge Blackmore declared an eleventh-hour mistrial just before he was expected to begin his concluding address to the jury.
A mistrial had been narrowly averted earlier in the week when the court heard evidence from Fisher’s barrister Stuart Littlemore that there had been accidental contact between Fisher and a member of the jury while both were at a place of entertainment. On that occasion the judge dismissed the juror concerned and agreed to proceed with the trial.
However, yesterday Blackmore said that he had no choice but to declare a mistrial.
The judge declared a mistrial after hearing evidence concerning the existence of a Satellite Group file on the Skytours project which the Australian Securities and Investment Commission (ASIC) had not produced during the discovery part of the trial. The court heard that the commission had obtained the file last November but had failed to introduce it into evidence as part of this trial.
The existence of the file had become a point of dispute between the Crown and David Robinson, counsel for Fisher’s co-accused Jonathan Broster. Although the Crown Counsel Robert Sutherland had denied any knowledge of the file earlier in the week, he produced it in court yesterday morning after making an enquiry to ASIC overnight.
In his address dismissing the jury, Blackmore said that there was no mechanism by which the file could be introduced into evidence at such a late stage. He could not say let’s start again because to do so would turn the trial into, for want of a better term, a shambles.
The judge said that Robinson had been right to argue for a mistrial as the existence of the file spoke directly to Broster’s credibility as a witness.
Although Littlemore argued on Fisher’s behalf that he would prefer the trial to proceed in respect to the charges against his client, the judge ruled that this was not appropriate.
The judge said that he understood Fisher’s wish to continue and noted that the stress of the trial is no doubt pressing on him. However, he said that there was no manner in which the file could be admitted and Broster’s evidence excised in such a way that would have ensured a fair trail for Fisher.
This is the second time that the charges against Fisher and Broster have failed to reach a conclusion. The first trial was aborted last October after two jurors dropped out due to illness.
The allegations against Fisher and Broster come from an investigation undertaken by ASIC into the operations of the failed gay publications and property company. They focused on financial dealings between the Satellite Group and Sydney Skytours Pty Ltd, a company which was developing a virtual reality-style tourist attraction for the podium level of Centrepoint Tower in the City. Fisher and Broster were accused of making improper use of their positions as company officers of the Satellite Group in regard to the issuing of directors loans from Satellite to their personal companies Mojava and Sojo which were in turn invested in the Skytours project.
Fisher maintained in his evidence that the arrangements with Mojava and Sojo were merely a risk management strategy to protect Satellite’s speculative investment in Skytours.
The trial in fact began and ended with the threat of a mistrial.
On the third day of evidence Littlemore had argued that the jury should be discharged because an item which had appeared in the Sydney Morning Herald could prejudice the jury against Fisher.
The item’s headline -“ Gay developer in court -“ was one source of contention. The description of Fisher’s sexuality was obviously a pejorative, Littlemore said, before saying his client’s sexuality has nothing to do with the case.
But Sutherland opposed the application, telling the court that Fisher’s profile was a matter of substantial publicity and that Fisher’s relationship with hairdresser Joh Bailey had been reported in newspaper social pages.
Littlemore countered this, saying the Crown takes this matter far too lightly and that there can be no presumption that the jury would have knowledge of Fisher’s sexual preference. In his argument, Littlemore said if his client was a man charged with rape in Sydney’s western suburbs and was identified in a newspaper as Muslim there would be outrage.
Judge Blackburn found that the heading of the article does have the potential to lead to prejudice but that such prejudice could be remedied by giving directions to the jury. He also stated that he was not aware of Fisher’s sexuality.
The matter has been listed for tomorrow where submissions will be heard before the Chief Justice regarding a retrial.