Cleo Smith case: lawyers question whether Terence Kelly can have trial by jury after ‘prejudicial’ photos
Senior lawyers have questioned whether the alleged abductor of Cleo Smith can have a fair trial by jury after after blanket media coverage that included the accused, Terence Kelly, being shown barefoot and shackled while being transported to prison.
Kelly, a 36-year-old from Carnarvon in Western Australia, was photographed two days after his arrest in leg irons and handcuffs, with no shoes on, being ferried to a plane by police for a flight to Perth.
Legal experts say the images showing the shackles were “entirely prejudicial” and human rights advocates say the use of leg shackles as a routine part of transporting an accused person, particularly an Aboriginal man, should be challenged.
Kelly has been charged with various offences including forcibly taking a child under 16. A court is obliged to determine guilt or innocence regardless of how the accused is portrayed in the media.
The use of leg shackles does not indicate guilt, which is for a court to decide.
The WA Department of Justice said the use of shackles was a “routine” practice to ensure “the safe and secure movement of prisoners”.
But even without the publication of pictures of him, the extent of the media coverage on the case has made Kelly effectively “untriable”, said Perth barrister Tom Percy QC.
“The amount of hatred and enmity generated toward him already in the public domain would make trial by jury almost an impossibility,” he said.
The photographs of Kelly on the tarmac were widely published in Australia and shown on local TV bulletins. The Australian newspaper used the image captured by its photographer on the front page. The Daily Mail used several images with editorialised captions, including a suggestion that Kelly was winking at the cameras, when it appears he was just squinting from the sun.
The Guardian also published one of the images distributed by Getty, in which the handcuffs and chain were obscured.
Percy, the criminal law spokesman from the Australian Lawyers Alliance, said the publication of photos showing an accused person in shackles was “entirely prejudicial and unnecessary and did nothing whatsoever to inspire one’s confidence that there could be a fair trial, at least in front of a jury”.
“Of course in WA we have the option of a trial without a jury,” he added.
A judge-only trial can be held in WA if the court is convinced that it is necessary in the interests of justice. Percy says he expects that, if the matter goes to trial, lawyers representing Kelly would apply for a judge-only trial, but the application can also be made by the prosecution.
Anthony Elliott, the president of the Criminal Lawyers Association of Western Australia, said the photographs were “entirely prejudicial”.
Photos showing shackles have been used create “an insinuation in the community that he is a dangerous person who needs to be restrained”.
Police would not comment when asked why Kelly was placed in leg shackles, referring questions to the Department of Justice, which carries responsibility for people once they have been remanded in custody.
Earlier, police briefed some media outlets that the shackles had been used because Kelly was at risk of self-harm.
The police custody transport manual states that when transporting prisoners by plane, “violent prisoners should be ankle shackled if deemed appropriate in the circumstances”.
The position of the justice department on leg shackles is more opaque. A 2020 review by the Office of the Inspector of Custodial Services found there was “no specific department policy dealing with routine restraint” and that the use of routine restraint was rarely recorded.
The review found the department had adopted the routine use of restraints to prevent escapes but without consideration of the actual risk of escape, including using leg restraints such as those on the ankle on people who are unconscious or very unwell in hospital.
A Department of Justice spokesperson told Guardian Australia that corrective services officers are “authorised to use a range of approved restraint equipment, including leg restraints, during escorts for the safe and secure movement of prisoners”.
They said such use “does not meet the criteria to be classified as a use of force”, which means there is no requirement to record their use.
Amnesty International Australia says that every use of a restraint, including zip ties and handcuffs, should be regarded as a use of force and monitored as such.
Maggie Munn, a Gunggari woman and associate campaigner for Indigenous rights at Amnesty International, said the organisation had raised concerns previously about leg restraints and leg cuffs being used inappropriately and contrary to international protocols.
The Greens senator for Victoria, Lidia Thorpe, said the use of shackles or leg cuffs in any situation was “barbaric”.
For First Nations people, it is also a symbol of colonial violence.
“Every time I go to a funeral there’s at least one or two young blackfellas chained up, shackled up, shuffling through on that big shiny floor,” the Gunnai, Gunditjmara and Djab Wurrung woman said.
“That’s intergenerational trauma. The trauma that we are experiencing burying a loved one then seeing one of our kids shuffle in in shackles. That is a deep, deep shame that we will never forget.
“And when you look at our old people that are chained up just the same way, that’s burned, ingrained, into our soul and our hearts and our identity as blak people in this country. You can’t forget that.”
Thorpe says she has received racist messages since Kelly’s arrest and is concerned at how the portrayal of the case in the media could affect the Aboriginal community.
Kelly is awaiting his next court hearing in December. His guilt or innocence has not been determined.