‘Freudian slips’ happen to all of us from time to time. Unfortunately, judges are also prone to slip-ups – even when giving crucial instructions to jurors when a defendant’s future is on the line. Indeed, there are several instances of judges accidently asking “How do you plead, Mr. Guilty”, or telling jurors to retire to the “guilty room”.
While it may seem comical for a judge to mistakenly call the defendant “Mr Guilty”, it is no laughing matter when you are facing years behind bars – especially when it is common knowledge that a Freudian slip involves inadvertently stating something you believe to be true.
But this was the situation Tasmanian man Shaun Matthew Dimech found himself in, while on trial for 21 fraud-related offences; comprising 15 counts ‘attempting to dishonestly acquire a financial advantage’, and six of ‘acquiring a financial advantage’.
Mr Dimech was accused of placing bets online with his debit cards, then cancelling the cards and claiming they had been used by someone else. His bank reimbursed him to the tune of over $55,000 for the transactions.
During the ‘summing up’ of Mr Dimech’s jury trial – which is at the end of the case when the judge gives crucial instructions to the jury about the evidence and law – Chief Justice Alan Blow made the fateful mistake of calling Mr Dimech “Mr Guilty.”
Dimech was then found guilty by the jury, in less than two hours.
Mr Dimech appealed to the Court of Criminal Appeal (CCA), where his criminal defence barrister, Mark Rinaldi, argued that Justice Blow’s error could have suggested to the jury that the judge believed Dimech to be guilty, thereby potentially influencing the verdict. Mr Rinaldi further submitted that the judge should have discharged the jury, or at the very least told them to disregard his comment.
Since the judge did neither of those things, Rinaldi argued that the comment could have caused “irregularity or prejudicial occurrence”, such that the “overall trial has been rendered unfair.”
While this might seem like a sensible submission, Justice Porter of the CCA expressed the view that a ‘slip of the tongue’ would have had no impact on a jury; and it appears unlikely that Mr Dimech’s appeal will succeed. After hearing Mr Rinaldi’s submissions, the appeal judges advised the prosecution that they did not need to make submissions in response – which usually means they have already won.
Mr Dimech awaits the court’s formal decision.
The Canadian Case of “Mr Guilty” aka Mr. Wilson:
Mr Dimech is not the only defendant to be called “Mr Guilty” in front of a jury.
In Toronto, Canada, 27-year-old Mr Wilson was convicted of drug trafficking, and he blames the verdict on the judge saying to the jury:
“[The presumption of innocence] is only defeated if and when Crown counsel satisfied you, beyond a reasonable doubt, that Mr. Guilty, I’m sorry, Mr. Wilson, is guilty of the crime charged.”
Mr Wilson’s criminal lawyers argued that this unfortunate comment was enough to prejudice the jury, potentially indicating the views of the judge.
They appealed to the Court of Appeal of Ontario, which ultimately dismissed the appeal on the basis that the “inadvertent misstatement” was not enough to cause a mistrial.
The court found that jurors, as reasonable and intelligent people, would not have misconstrued the slip of a tongue as an indication of the judge’s views, noting that it was quickly corrected by the judge in that case.
Mr Wilson was unhappy with the decision, saying that it effectively allows judges to defame defendants and influence jurors as long as they say sorry.
Right to a Fair Trial
Not many rights are guaranteed in Australia, but the right to a fair trial is one of those protected by our constitution.
However, the right does not extend to all forms of unfairness to the defendant; rather, there must have been a “miscarriage of justice”. The courts have found that the essential components of a fair trial include: an independent court, the right not to testify against oneself, and the right to be considered innocent until proven guilty.
A slip of the tongue, Freudian or not, will not normally amount to a miscarriage of justice in Australia.