BOYD -v- THE STATE OF WESTERN AUSTRALIA [2012] WASC 388 (19 October 2012)

4 On 8 October 2012 solicitors for the applicant filed an application seeking an order pursuant to s 135 of the Criminal Procedure Act 2004 (WA) (CPA) that there be a change of venue of the trial from Bunbury to Perth. On 10 October 2012 an affidavit in support of that application was filed. That affidavit, from Mr Michael Devlin, the solicitor for the accused, sets out a number of matters that are said to be relevant to the security of the accused, her counsel and the jury if the trial were to proceed in Bunbury. I will refer to those issues in more detail later in these reasons.

5 The indictment is in the form (Form 4) prescribed by the Criminal Procedure Rules 2005 (WA) r 14. This form contains a box in the top left which nominates the place of trial. The place of trial is shown as Bunbury.

6 Section 84(2) of the CPA requires that an indictment specify the place where it is to be dealt with by the superior court, being either Perth or a circuit town proclaimed under the Supreme Court Act 1935 (WA) s 46(1) if the prosecution is being commenced in the Supreme Court. Bunbury is such a circuit town.

7 The State has a discretion to specify the venue for a criminal trial by nominating a location on the indictment. That discretion should not be overridden other than for real and substantial reasons: R v Cattell (1968) 1 NSWLR 156, 157 (Sugarman JA), 160 (Holmes JA) and Burge v The State of Western Australia [2006] WASC 171 [5] (Miller J).

8 Section 135 of the CPA gives to the court a discretion to change the venue of a trial. Section 135(2) reads:

If there is a good reason to do so, a court may order that the whole or a part of a case be conducted at another place in the State (whether or not there is a registry of the court or courtroom facilities at the place).

9 As a general principle an indictment for a crime should be tried by a jury drawn from the place where the crime is alleged to have been committed: Burge [8]. Section 135 of the CPA exists to cover cases where, despite the exercise of discretion by the prosecution and despite representations that may have been made to the prosecution, it is necessary for the court to order a change of venue to ensure that the accused will receive a fair trial: Burge [9].

10 Whether an application to change venue is granted is a matter that requires an exercise of discretion by the court. The proper exercise of the discretion takes into account not only the interests of the applicants but also the interests of justice generally. In R v Anderson (1974) 5 ALR 268 Muirhead J said:

In exercising this discretionary power there must be one basic consideration - that is 'the interests of justice'. I must consider the interests of the person charged and also the proper administration of criminal justice in this matter in the Territory (271).

11 The interests of justice require that a range of factors be considered. Without being exhaustive, those factors include the following:

1. whether there is any reason to think that it would be impossible to empanel an impartial jury at the proposed location;
2. whether there are any reasons to think that the security of participants in the trial could not be provided for at the proposed venue;
3. whether the facilities available at the proposed location are suitable for a trial of this nature;
4. whether moving the trial to another venue would make it more difficult for those most likely to have an interest in attending to do so;
5. whether moving the trial will present logistical difficulties for the court, the parties or the witnesses.

12 The starting point, however, is that a trial should be held at the place nominated on the indictment. It is not for the State to show good cause why the matter should not be held in the local venue. The onus is on the applicant to show that there should be a change of venue: Burge [13].

13 Generally speaking, there are good reasons why trials should occur as close as possible to the place at which the offence is alleged to have been committed. This is particularly pertinent in the case of country centres. The local community in which an alleged offence is said to have occurred has a legitimate interest in seeing that justice in respect of that alleged offence is done. The local community will rightly have an expectation that justice will be delivered in a way which affords that community an opportunity to observe and participate in the process. This also fosters greater understanding and acceptance of that process and any outcome.

14 Section 135 of the CPA does not specify what will constitute a good reason or how such a reason is to be established. It may be that some matters, such as the exact nature of a security risk or whether potential jurors have been or are likely to be improperly influenced, may be incapable of precise proof. However, this does not mean that mere assertion or speculation will provide sufficient grounds for exercising the discretion to change the venue of the trial.

15 A good reason must be a reason based upon some reasonably reliable evidence or information. The information must be of a nature as could support a conclusion that the interests of justice require that the trial be moved. If assertion or speculation was enough then the discretion would become meaningless and trials would be liable to be moved whenever a request to do so was made.

16 The first matter raised in Mr Devlin's affidavit concerns an incident which followed a bail application on 13 September 2012. On that day a large number of people believed to be family and friends of the deceased were in attendance. Mr Devlin reports that as he was leaving the court a member of this group made a derogatory remark to him.

17 Defence counsel has also reported that she was approached by a member of the group, who asked to speak to her. The man said that he considered that counsel had made some remarks during the bail application that should not have been made and were highly discourteous to the deceased. Counsel reported that the tone of the remarks was confrontational and aggressive. Court security officers intervened.

18 I will not refer to what is alleged to have occurred in any more detail as the other parties to these incidents have not been identified or been given an opportunity to respond. However, even accepting them at face value there are clearly difficulties with relying upon this information to draw any inference that the trial venue should be changed.

19 Firstly, it is to be expected that in a matter of this nature there will be people who have been deeply affected by the death of the deceased and may react emotionally to things that occur in court. It is often necessary to anticipate such feelings and take steps to ensure that those who attend trial proceedings are aware of the necessity to respect the trial process. The fact that the emotional response referred to occurred does not necessarily indicate that the people concerned will not conduct themselves appropriately in the future. Nor is it possible to conclude that such an emotional response is indicative of there being a real threat to the security of the legal representatives of the accused.

20 Secondly, the incident referred to occurred in Perth not Bunbury. Even if it justified additional precautions in respect of security, it does not suggest that a move from Bunbury to Perth is called for. It was suggested by counsel on the hearing of this application that the group concerned had travelled from Bunbury but there was no evidence as to this and, in any event, it does not suggest that moving the trial to Perth would achieve anything.

21 Thirdly, to suggest that on the basis of this incident it can be expected that if the trial were held in Bunbury people who would attend the trial would be more likely to be disruptive or present a security risk is speculative. I accept that defence counsel's concerns are genuine but they have been drawn to the attention of the police in Bunbury and those responsible for the security of the court. There is no information to suggest that adequate security measures could not be put in place if the trial were held in Bunbury. In particular, no concerns have been expressed by the police in this regard.

22 The second matter raised in Mr Devlin's affidavit relates to postings made on Facebook. The date on which the postings were made is not clear. It would appear that they were made on the personal pages of friends of the deceased. Whilst they may be open to be read by members of the public the extent to which they have been read by anyone other than the friends of the people who made the postings is unknown.

23 It is not necessary to refer to the postings in detail other than to say they use strong and expletivefilled language to refer to the accused and to express views regarding her guilt. Some of them also express negative views about lawyers and the justice system. One of the postings expresses a wish to do physical harm to the accused and another expresses a similar view in regards to defence counsel.

24 The nature of the internet is that it now records indefinitely what might once have been transient and illconsidered statements said in the heat of the moment. Such statements should not necessarily be seen as any expression of real intent. The postings were made on personal Facebook pages and were clearly intended for a group of friends and not as public statements. Foolish, exaggerated or emotional comments made between friends should not be taken out of context. In any event, there is no evidence as to where the people who have made the postings reside or whether a move of venue to Perth would provide better security, even if it was assumed that the people concerned posed a security risk.

25 It was suggested in submissions that there was more likelihood of obtaining an impartial jury in Perth than in Bunbury. There is, however, no evidence of prejudicial publicity in the Bunbury region. There is nothing to suggest that the Facebook postings have been widely read or have influenced potential jurors.

26 Furthermore, it must be acknowledged that a violent crime will inevitably stir up local interest and conjecture as to what occurred. That does not mean that an impartial jury will not be found comprised of people who, properly instructed, will be true to their oaths: Lange (1986) 25 A Crim R 139. In Lange an application to move a murder trial from Toowoomba, Queensland, was refused. In that case, the accused's house had been defaced with the word 'murderer' which passersby could have seen for a day or so until it was substantially removed. De Jersey J (as he then was) said that reasonable people would be generally unimpressed with such vandalism and that the incident did not assume great significance with regard to the question of whether a fair trial might be had.

27 The third issue raised in Mr Devlin's affidavit relates to the Bunbury Court House. He states that the jury panel (and the jury once chosen) would enter and leave the court house through the main public front doors. He says that given the nature of the charge and the high emotional mood which appears to be surrounding this matter, he has a concern as to whether the integrity of the trial process could be guaranteed unless there were special arrangements for the jury. He also expresses some concern regarding security for the accused and for defence counsel. No more detail of the basis for the security concerns is given than has already been referred to in respect of other matters. It is not appropriate to speculate as to the existence of possible security issues or the inadequacy of security measures that could be taken.

28 The State has submitted that court security at the Bunbury Court House is adequate. It also submits that even if special arrangements were necessary that does not disturb the prima facie presumption that the trial should take place at the court venue closest to the scene of the alleged crime.

29 I should note that I have not placed on any weight on the convenience of witnesses, that is because defence counsel has indicated that the issues at trial will be confined and the evidence of many witnesses will either be admitted by consent or not be the subject of crossexamination. This may mean that it will not be necessary to call some witnesses. The extent to which that would limit inconvenience to witnesses if the trial was moved to Perth is not known, but inconvenience to witnesses would not appear to be a factor which would weigh significantly against a change of venue if it was otherwise justified.

30 The available information is not such as would support a conclusion that there are real risks to security if the trial were to proceed in Bunbury or that any such risks as may arise cannot be adequately dealt with.

31 For the above reasons I was not satisfied that good reason has been made out to justify making an order under s 135 of the CPA to move the trial from Bunbury to Perth. In any event, I note that the police in Bunbury have been informed of the concerns expressed in Mr Devlin's affidavit and have not provided any support for those concerns. Accordingly, the application is dismissed.