DPP v Bennett [2004] VSC 148

2. This is an application on behalf of the accused Mr Bennett for a change of venue from the sittings of the Supreme Court at Sale to its sittings in Melbourne. The application is not opposed by the prosecution.

5. The accused is charged on the one presentment with six counts: the murder of Mr Adam Prendergast at Sale on 1 March 2002; arson causing death at the same time and place; arson at Aerodrome Road, Sale on 21 November 2001; reckless conduct endangering life at that time and place; arson at Stratford on 12 October 2002; and sixth, reckless conduct endangering life at that time and place. Sale is a circuit city with a population of 14,000 situated 214 kilometres east of Melbourne. Stratford is a town 18 kilometres north of Sale.

8. The accused was arrested and charged on 12 December 2002. At the Moe Magistrates' Court on 20 November 2003 after a four day committal he was committed for trial. He pleaded not guilty before Teague J in Melbourne at a directions hearing on 2 March 2004. The trial was set down for hearing at Sale on 31 May 2004. It is to that setting down that this application relates.

11. The application is made pursuant to s.359(1) Crimes Act 1958 which reposes in the court a discretion to remove a trial from a fixed venue to another place.

14. The criteria for the exercise of the discretion are well known and were stated by Lush J in R v Ratten[1] thus:

"In my opinion, the starting point of a case such as this is that it is a matter of public interest and public policy that a trial should be held in the locality and (in this case it is the same thing) in the community area in which the crime is alleged to have been committed."

" ... so that justice will be seen to be done by those who are interested in seeing it and so that no feeling can arise that justice is done in a distant place and community."[2]

20. There are powerful reasons of public policy why the venue of offence should be the venue of trial. The local community is the community in which the alleged crime took place; it is concerned to have the law administered within it; and to remove a circuit trial to Melbourne can lead the vacated community to feel disenfranchised, marginalised or alienated. All this is common experience. This basal requirement should not be watered down by mere administrative convenience. This is the Supreme Court of Victoria, not the Supreme Court of Melbourne.

23. Nor should the Court too readily act on evidence of local concern. I agree entirely with what Pidgeon J said in R v Ong[3] (a trial on Christmas Island, which had a population of 1600, and as to which an application for change of venue to Perth was made):

"There is always a possibility in any community, and particularly in a small community, that a person conducting a survey, particularly near the time when the offence is alleged to have been committed, will find a percentage who considers that an accused person is guilty. This does not mean that persons, initially expressing such a view, later, when serving as jurors would adhere to such view. They would receive instructions to put out of their mind anything that they have heard of the trial or any preconceived ideas and to judge the matter with a neutral mind entirely on the evidence. It is my view, as it has been my experience, that when persons are called upon to carry the responsibility of a juror and hear the evidence directly, such persons adopt a different attitude and quickly adapt to and adjust to a direction that all rumours must be put out of their mind and that they judge the situation from what they hear directly by evidence".

Of course when the material, viewed in the light of the above, establishes that there is a real risk as to the accused receiving a fair trial locally, or the appearance of it, the trial should be removed.

28. The principle has long been established that the onus rests upon the applicant to show good cause why a fair and impartial trial at a venue is at risk: R v Cattell[4], and that the application should be based upon proper material: R v Anderson[5]. As Muir, J. stated in Yanner[6]:

"When the discretion falls to be exercised in any case it must, of course, be exercised by reference to circumstances and considerations relevant to that case. There is nothing to be gained by attempting to formulate an exhaustive list of relevant considerations. The older authorities should not be regarded as suggesting that the exercise of discretion in applications for changes of venue is fettered by rigid judicially promulgated rules or precise formulae: cf. the observations of Bowen CJ., Woodward and Lockart JJ in National Mutual Holding Pty Ltd v Sentry Corp. (1988) 19 FCR 155 at 160-161."

With every respect I entirely agree that applications for changes of venue should not be "fettered by rigid judicially promulgated rules or precise formulae." However, the basal principle is clear, namely that a local community has a pre-eminent claim that the proceedings should be heard locally.

33. Nettle J in R v. Iaria and Panozzo[7] most helpfully reviewed the history of judicial consideration of the section and concluded (at [10]):

"I take the law now to be ... precisely encapsulated in the formulation of Pincus JA in Yanner, that ... 'the proper rule to be applied is that each case in which an application is made for a change of venue falls to be considered on its own merits and not with any preconceptions, save that a trial should ordinarily proceed in the district in which the offence charged is alleged to have been committed removal 'being warranted where sufficient cause is shown.' ' "

Again, with every respect, I agree; save to emphasise that the adverb "ordinarily" comprehends a requirement of substance. I agree also with Nettle J's observations in R v Iaria and Panozzo at [9] as to the test said by the Queensland Court of Appeal in R v Georgiou, Edwards and Hefferen[8] to be "universally recognised".

38. On an application for a change of venue based as here on matters of asserted local prejudice or prejudgment, the test is that a trial will be heard locally unless there is a real risk that the accused might not receive, or be seen to receive, a fair trial locally.[9]

41. Applying the criterion to the present case, the application for removal primarily proceeds upon an apprehension, so it is put by Mr Montgomery for the accused, that the accused has a reputation or notoriety locally as a fire lighter or possible fire lighter. There is no media publicity which is relied upon. What is relied upon are certain passages in the statements of witnesses proposed to be called by the prosecution. It is conceded, of course, that such passages of opinion and of reputation are not admissible and would not be admissible ordinarily in the trial. However Mr Montgomery, in his most helpful submissions before me last Friday, submitted that the passages are evidence of or indicative of the accused's local reputation or notoriety. In my view the passages fall far short of establishing such a thing. Some of the passages are passages simply of the cerebration of an individual witness or of that witness' opinion and are not evidence of or indicative of any reputation at all. That is in the case both of an aunt and of apparently some members of the group of young persons aged about 20 or 21 with whom the accused was prone to meet at the Criterion Hotel in Sale where the events constituting Counts 1 and 2 in fact occurred. All that evidence, apart from two matters that I shall shortly refer to, is evidence of an individual person's evaluation or opinion.

44. The two passages which come closer to a matter of general reputation are the statement of Mr Craig MacAlpine at D.345, where in relation to Counts 5 and 6, he stated:

"Since the party, I have seen John [the accused] maybe twice. The last time was at Ringers in Sale and John Bennett told me he needed to have a chat with me. We went over to a table and he said that he heard that I had called him a wanker or something like that, I don't even recall. I just said that I didn't remember and I would have to take his word for it. He didn't really get upset and I had heard about him being involved in a lot of fires. I didn't accuse him, I just put it all to him and asked him to tell me the truth. He just denied it and we both got a bit fired up".

48. Then in the statement of Ms Stephanie Makar at D.827:

"During the week following the party I heard that there had been a fire there, at the party in Craig's house. I can't remember who told me about it. There was a fair bit of conversation about it. They were saying there was a fire out there and people had their suspicions but kept them to themselves, and talk about the fire at the Cri came into it and bits and pieces. There was suspicions that Johnny was involved".

52. In the case of Ms Makar, the evidence goes no further than talk in the group of young persons who moved together, including the deceased and the accused. In the case of Mr MacAlpine there is a wider statement, "I'd heard about him being involved in lots of fires". That falls short of establishing any general reputation in the community. It is not clear in Mr MacAlpine's statement whether he was speaking about the small group of young persons within which the accused and the deceased moved at Sale or a larger group. Certainly it is not established that the accused had any wider reputation beyond the group of young persons of being suspected and certainly no reputation of the asserted fact itself.

55. What is conspicuously lacking from the material relied upon by Mr Montgomery and from the statements and evidence at the committal is any assertion that the accused had in the Sale area any reputation or notoriety for being a fire- lighter or a possible fire-lighter.

58. Accordingly, I am unsatisfied that the material comes anywhere near establishing an adverse local reputation, let alone a reputation which would found removal of the proceedings from the local jurisdiction.

61. It is the general experience of the law, as my experience and that of Pidgeon J cited above confirms, that persons in the community who might previously have held opinions act on judicial direction to give a true verdict on the evidence led in court. Of course the Court must be astute to the possibility of prejudgment and of prejudice and must not ask psychological unrealities of jurors. In any event, as I say, this material falls far short of that: there is no publicity, no direct evidence of a wider reputation or in my view indirect evidence of it and further there is a significant time gap between the offences charged and the hearing next month at Sale.

64. There are a number of other matters to which I have given careful attention and which were relied upon in support of the application. It was pointed out by the prosecution that the mother of the deceased resides in Melbourne. One would, of course, ordinarily wish her to have the most immediate access to the hearing of the trial. However there are a very large number of witnesses to be called from Sale and while I have every sensitivity to and respect for the position of the mother of the deceased I still have to take into account the operational requirements of conducting a substantial trial away from Sale. Next, it is inconvenient to the instructors of the counsel of the accused to have the trial at Sale. Theirs is a very capable but small firm of Melbourne solicitors and hearing the trial at Sale will cause them logistical difficulty. However, again, it is not the practice of the court, whilst being sensitive to these matters, to remove trials from the proper venue because of such logistical difficulties. Next, it is anticipated that there will be a number of witnesses from Tasmania who will be called because it is sought by the prosecution to lead a number of events in Tasmania under the principle of R v Harriman[10] as to fires in that State. Of course whether any such witnesses are called will depend upon my ruling when that matter is litigated before me before empanelment, but I proceed at the present time on the basis of that such witnesses will be called; and of course it would be more convenient for them to be called in Melbourne rather than in Sale, having come from Tasmania. However, they will be inconvenienced to an extent, if they are called, by coming to Melbourne and the additional inconvenience to them should not in my view outweigh the right of the local community to have the matter heard locally if a fair trial can properly there be achieved. Further, balanced against the relative extra inconvenience of bringing the Tasmanian witnesses to Sale not Melbourne is the inconvenience to the large number of Sale and Stratford witnesses of having to attend not Sale but Melbourne.

67. Accordingly, I am not satisfied that there are any grounds for vacating the sitting at Sale. I refuse the application for removal.

70. The next matter that arises is the question of the timing of the trial. I was minded when we sat on Friday to list the trial for a little later than the scheduled date of 31 May in order to meet the convenience of the County Court which is in fact also scheduled to have a circuit at Sale commencing on 31 May. However, I understand that that causes difficulties in relation to later, pre-existing, commitments of counsel. Of course very different considerations apply to timing as apply to the fundamental matter of venue, and I am conscious of those matters of timing, and particularly so as the actual date of hearing was some time ago fixed as 31 May. To that end I did this afternoon speak to Chief Judge Rozenes of the County Court and as a consequence the trial can proceed at Sale on the listed date, that is, 31 May. I express my appreciation of his comity and courtesy.

73. For those reasons I refuse the application sought. The trial will proceed in Sale on the scheduled date of 31 May 2004. As counsel are aware I am taking in Melbourne the pre-empanelment submissions commencing on Monday 10 May.

[2] In the Victorian Trial Manual (2nd ed., 2002) at p.802 that citation is erroneously recorded as "in a

[3] (1999) WASC 51 at [7].

[5] (1974) 5 ALR 268.

[6] (1997) 98 A. Crim. R. 51 at 58.

[7] (2004) VSC 96 (a retrial of a case involving substantial and adverse local media publicity both before and after conviction).

[8] [2002] QCA 206; (2002) 131 A. Crim. R. 150 at [23].

[9] See also Teng and Sing (1986) 30 A. Crim. R. 203 at 206 per Gallop J and Webb and Hay (1992) 64 A. Crim. R. 38 at 41 - 42 per Debelle J.

[10] [1989] HCA 50; (1989) 167 CLR 590.