Cy Walsh trial for the murder of Crows coach Phil Walsh would be fraught with problems, experts warn

CELEBRITY, complex medical issues, footy passions ... the Phil Walsh murder trial will attract national attention and create significant challenges for SA’s legal system. Chief Court Reporter Sean Fewster explains why.

Cy Walsh faces court by video link with James Nash House. Artwork: Tim Ide

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ADELAIDE’S tribal two-team football culture and the passions it fosters will complicate the selection of an unbiased jury in the Phil Walsh murder trial, legal experts warn.

South Australian law does not provide for potential jurors to be vetted for prejudice and it will be up to the candidates themselves to ask to be excused from duty if they feel they are aware of the case of the stabbing death of the Crows coach, or know witnesses.

Experts say it may be almost impossible to select a truly impartial jury in a case in which “everyone’s got an opinion”.

The 12 South Australians chosen will face the task of determining whether Walsh’s son, Cy Walsh, is a murderer or a young man with an acute mental illness — all under an intense public spotlight.

“In a case like this you run into all sorts of problems because everyone’s got an opinion,” barrister Craig Caldicott told The Advertiser.

“They could be impartial, they could have uninformed opinions, be members of the Crows fan club or have deeply held views about people with a mental illness.

“These are difficulties you can’t counteract at all, because the jury selection process doesn’t allow you any means to do so.”

Social researcher Mark McCrindle said the Walsh trial had the potential to impact upon “the minds and the mood” of not only jurors but everyone in South Australia.

“Lawyers and judges are experts at separating emotion and bias from logic information and being clinical and forensic, but the average Australian is not,” he said.

“When it’s about sport, beloved personalities, and is happening in a two-team city, that heightens the challenges about keeping unbiased, especially as footy season rolls around.”

Cy Walsh faces court by video link with James Nash House. Artwork: Tim Ide

Walsh, 26, has denied murdering the his father in their home in the early hours of Friday, July 3 last year, by reason of mental incompetence.

Phil Walsh spoke of wanting to “reconnect” with his son, whose online accounts described a seemingly idyllic lifestyle combining family time with travel.

Under state law, a person found not guilty by reason of mental incompetence is liable to a limiting term, which is a period in health detention equal to a jail sentence.

Prosecutors this week refused to concede Walsh is mentally ill and a trial option remains, pending further investigation of issues of drug-induced psychosis.

Should that trial proceed, potential witnesses include past and present members of the Adelaide and Port Adelaide AFL teams, as well as other sporting celebrities.

On Thursday, Law Society president David Caruso said potential jurors were chosen from the State Electoral Roll and underwent a police check before being eligible for selection.

A 12-person jury was then empanelled by random ballot draw, with prosecution and defence aware of each candidate’s name, address and occupation.

Mr Caruso said counsel were able to challenge — or reject — three people each during the empanelling, while jurors can be excused if they know of the case or witnesses.

“Whether the case is high-profile or not, the jury selection process remains the same in every case in order to preserve the integrity of the process,” he said.

Mr Caldicott — a founding member of the Australian Defence Lawyers Association — said a Walsh trial presented problems “over and above the norm”.

“The court will be selecting jurors in an environment where people have preformed ideas and where the case has been played out in the media,” he said.

“Also, the defence retains the right to argue their client is mentally incompetent, even if the DPP won’t accept it — and I suspect the DPP will continue to reject it.

“That means the jury will have to decide the issue, based on complicated medical evidence and issues, in the midst of a very high-profile case.”

He said the existing system prevented jurors being vetted for potential prejudice.

“We don’t have the right, as they do in the US, to ask potential jurors a series of questions before they are selected for duty,” he said.

“In a matter like Walsh, it will be essential for the judge to give a statement to the jury, prior to the commencement of the case, explaining the evidence and the issues.”

Mr McCrindle said legal educators already questioned how “realistic” it was to expect jurors to approach cases without basis in an age of technology and pervasive social media.

“It’s extremely challenging now because you really can’t function in modern life without the presence of technology and information,” he said.

“That adds a whole new layer of difficulty to the trial process, especially one that’s happening in a town with a passionate fan base and a well-developed football culture.”

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