Gram v The Queen [2010] VSC 277

2 Mr Morrissey appeared on behalf of Mr Gram and relied upon the affidavit of MR Jonathan Irwin and the various media articles exhibited thereto. The basis of his submissions were that the applicant could not receive a fair trial in Ballarat for the following reasons:

(1) Although the reporting of the committal proceedings had been fair and accurate, Mr Morrissey stressed that there were literally hundreds of local Ballarat residents that felt themselves touched by the case. The deceased was a well known and loved member of the community, and this would necessarily threaten the independence of the jury pool.

(2) The affidavit material establishes, or at its lowest asserts, that Ballarat has a real and ongoing issue with public drinking and the attendant violence in the particular area where the offence occurred. Mr Gram's trial was at threat of being held up as a reflection of resident's attitudes toward the old camp area and the dangers of binge drinking youths generally.

(3) Mr Morrissey also submitted that there whereas witnesses were local to Ballarat, the journey to Melbourne would be less onerous than that required of witnesses in other circuit areas such as Mildura.

3 Ms Barbagallo, who appeared on behalf of the Crown, relied upon the following submissions:

(1) After perusing the material that was served, the applicant had failed to discharge his onus. The authorities in relation to successful applications for change of venue all involve widespread media attention, which was absent in Mr Gram's case.

(2) Any media attention the case has drawn has been fair and has not been inflated.

(3) The present application rises or falls on the relationship of the deceased in the Ballarat community, and this case is not different from many others that occur in small country communities. Further, there was an absence of any material or sufficient material to suggest this accused would be denied a fair trial.

(4) Concerns regarding the empanelment of impartial and independent jury could be alleviated by proper administrative management. That is, a larger jury panel could be arranged in the months prior to trial to account for a greater than usual number of excuses.

4 The principles applicable on an application pursuant to s 359(1) of the Crimes Act are as set out by Nettle J in R v Iaria & Panozzo[1] and the decision of Maxwell P in R v Vjestica.[2]

5 Each application falls to be considered on its own merits, without preconception. A number of factors may be said to govern the exercise of the discretion to grant a change of venue, yet regardless of how powerful considerations favouring a local trial may be, they must accede to the paramount requirement that the defendant receive, and be seen to receive, a fair trial.

6 Various local newspaper articles were exhibited to the affidavit of Mr Irwin. Further, a subpoena was issued to WIN television which, while ultimately unhelpful due to technical difficulties, served to demonstrate the relevant television coverage at the time of the offence.

7 Mr Morrissey conceded that the reporting of the incident, the funeral ceremony for the deceased and the committal was fair and accurate. The conduct and comments of the victim's family was also credited as being dignified and measured, notably so. My reading of the reports confirms the concession was properly made. There is nothing sensational or inflammatory in the way these matters were reported, although it must be said that they demonstrate that the victim in this matter was a particularly beloved member of the local community.

8 In discussion, I expressed the view that through the normal course of events, such items as the funeral, although newsworthy at the time, fade into memory. In the course of common human experience, that seems even more likely to be so by the time the trial is held around November of this year. I accept Mr Morrissey's submission that there remains a concern that the trial may become 'emblematic of a particular problem in Ballarat'. I also accept that 'every case of drunken violence, as alleged, is going to call forth some community disapprobation'. I have more difficulty with the submission that it follows that a fair trial is more readily had in Melbourne than in Ballarat. The community's attitude to such issues is surely state wide.

9 A prospective juror's recollection of the reporting and publicity surrounding the case, or their acquaintance with the victim, howsoever removed, does not translate to partiality. Enquiries are made of prospective jurors as to their knowledge or proximity to the alleged events and persons involved. Potential jurors do seek to be excused, as I well know from trials I have previously conducted in Ballarat, and there is nothing in the matters before me which suggest that sworn jurors would be precluded from deciding the case on the evidence before them. Neither counsel on the application suggested there was a particular feature of this case, even allowing for the perhaps unusually high regard in which the victim was held in the local community, which could not be addressed by the appropriate directions and warnings.

10 There is no evidence that this is a case of notoriety, that the applicant is a household name, that the case itself, rather than the loss of a popular member of the community, have been felt across the breadth of Ballarat. Nor is there evidence that the community stands divided by the case, notwithstanding they may or may not stand divided on the issues it may potentially be used to represent.

11 There is no evidence which suggests the media coverage was saturated or that the case, despite the popularity of the young man now deceased, received any more publicity than any other instance of drunken violence alleged to have occurred in the district. In my view, it overstates the pervasive reach of the media coverage to say that the publicity given to the case is such that there is a risk that the applicant cannot receive a fair trial.

12 Although the incident has attracted publicity, it does not follow that, of itself, means a trial cannot be held in the community where the offence is alleged to have occurred. If it were so, no trial involving loss of life could ever be held in a circuit town.

13 It cannot be said in this case that there is a real risk that the trial held locally will not be fair or will not be seen to be fair, and that that risk cannot be eliminated by 'directions to the jury designed to counteract any prejudice which the accused might otherwise suffer'.[3] There is nothing in the matters before me that suggests that even if there is a risk of prejudice, that 'safeguards will not be sufficient to eliminate the risk'.[4]

14 There is, however, one other consideration of importance. It is one that I raised when the matter was argued before me. It is this; Can a jury panel be selected in Ballarat which will fairly represent the local community on the one hand, but not involve 'connected' parties on the other? The 'connected' parties in this case will be all those who are reasonably close to the deceased, the accused or any of the witnesses. I take account of my own recent experiences in Ballarat when I found it was not possible following three attempts to empanel a jury and three trial commencements, to continue a trial in Ballarat. In general, the cause of the delay in each case were the local connections of those involved in the trial, and this was so despite the trial arising as a result of events in Creswick.

15 The major difficulty is that any problems that exist do not necessarily become known until such time as the trial has commenced. The names of witnesses may not resonate with potential jurors, but jurors have family and friends who may just happen to be connected to the trial in some way.

16 I am satisfied, having regard to the appropriate principles, that an attempt should be made to empanel a jury in Ballarat.

17 Fundamentally, I must have regard to the proposition that crime is local, and that crimes should be tried in local communities subject only to one thing, the assurance of a fair trial. On the evidence on the application, I am not satisfied that the applicant has demonstrated that he is at risk of not receiving a fair trial or that a fair trial would not be seen to be had if it were to be held in Ballarat. Accordingly, the application is refused.

[1] [2004] VSC 254.

[2] [2008] VSCA 47.

[3] R v Vjestica [2008] VSCA 47.

[4] R v Vjestica [2008] VSCA 47.