MWSD -v- THE STATE OF WESTERN AUSTRALIA [2017] WASC 125 (5 May 2017)

Supreme Court of WA|2017-05-05|Before: Jenkins J

1 JENKINS J: The accused is charged that on 29 August 2016 at Boulder he unlawfully killed Elijah Doughty (the deceased). His trial is listed for hearing on 17 July 2017. In accordance with the Criminal Procedure Act 2004 (WA) (CPA) s 84(2) the indictment specifies Perth as the place where the charge is to be heard.

2 The accused has applied pursuant to the CPA s 135(1) for the venue of the trial to be changed to Kalgoorlie.

4 The State opposes the application on the bases that the CPA s 84 gives it the discretion to determine where the trial should be held and the accused has failed to show that the exercise of its discretion to hold the trial in Perth should be overridden. Secondly, there are good reasons relating to safety why the trial ought to be heard in Perth. In relation to a view, it says that if a view is ordered, it can be held from Perth.

5 As I am not the proposed trial judge, I will not determine the application for the view. Any decision that I made as to whether there would or would not be a view would be reviewable by the trial judge. Further, the foreshadowed evidence, the foreshadowed issues at trial and the weather and conditions of the area where the incident occurred which may have influenced my decision could change between the time of my decision and the trial. Those changes may warrant a different decision being made as to whether a view is required. Consequently, the decision with respect to a view will be made by the trial judge at a later date. I will determine the application for the change of venue on the basis that the trial judge may order a view to be held.

Application for leave to appear as amicus curiae

6 Stewart Alan Levitt applied for leave to appear as an amicus curiae in the application for change of venue.

7 Mr Levitt's application states two other relevant matters. The first is that Mr Levitt makes the application on behalf of Petrina James and Albert Doughty, being, respectively, the mother and paternal grandfather of the deceased. Mr Levitt's counsel, Mr Creamer, who appeared to argue the application for leave to intervene clarified that Mr Levitt is a legal practitioner who acts for Ms James and Mr Doughty. Despite the client/practitioner relationship, I understand that the application for leave to appear as an amicus curiae is made by Mr Levitt; not his clients. I will determine the application on this basis.

8 The second matter stated in the application is that leave to appear as an amicus curiae is sought 'to oppose the [Accused's] application for the venue of the trial by jury to be Kalgoorlie'. Thus, if leave to appear as an amicus curiae is granted it will be for the purpose of trying to persuade the court to dismiss the accused's application for a change of venue.

9 The third relevant matter is that if Mr Levitt is given leave to appear he wishes also to adduce evidence contained in two affidavits sworn by him on 7 April 2017. I will distinguish between the two affidavits by reference to their respective lengths, excluding attachments. One is 12 pages in length and the other is 20 pages in length. The two affidavits 'deal with substantive issues' which I take to mean that they purport to contain evidence which Mr Levitt says is relevant to the court's determination of the application for change of venue.

10 The accused objects to Mr Levitt being given leave to appear as an amicus curiae. The State consents to Mr Levitt being granted leave and says that Mr Levitt's affidavits contain material not included in the affidavits filed by the State and Mr Levitt's written submissions contain legal authority not included in its submissions.

11 I heard Mr Levitt's application for leave to appear as an amicus curiae and reserved my decision on it. If I had decided to grant Mr Levitt leave, it would have been necessary to have a further hearing to hear him, but as I have decided to refuse him leave that hearing has not been required.

12 It is convenient to approach Mr Levitt's application by reference to two of the three questions formulated by Mahoney P in National Australia Bank Ltd v Hokit Pty Ltd [1996] NSWSC 198; (1996) 39 NSWLR 377, 380, namely:

(1) whether the court has power to grant the application;

(2) if it has, whether it should grant the application.

13 As to the first question, Mr Levitt relies on the court's inherent power and on the following dicta in United States Tobacco Co v Minister for Consumer Affairs [1988] FCA 213; (1988) 20 FCR 520; (1988) 83 ALR 79:

As a court exercises a judicial, not an administrative function, its task is to determine disputes that are brought before it by parties who appear before it, adduce evidence and make submissions. Nevertheless, a court has an inherent or implied power, exercised occasionally, to ensure that it is properly informed of matters which it ought to take into account in reaching its decision. Particularly is this so in judgments which may affect the community generally or persons other than the parties who are before it. A judge hearing a civil proceeding may, in his discretion, call a witness of his own motion, though the power to do so is only rarely exercised. In Titheradge v The King [1917] HCA 76; (1917) 24 CLR 107 at 116, Barton J said:

...

Further, if it considers it in the interests of justice to do so, the court may hear an amicus curiae or friend of the court. The institution of amicus curiae and the procedures relating thereto are applicable in this Court as a consequence both of its status as a superior court of record and a court of law and equity (Federal Court of Australia Act, s 5(2)) and of its powers to make appropriate orders in relation to matters in which it has jurisdiction: Federal Court of Australia Act, s 23; see also Parsons v Martin [1984] FCA 408; (1984) 5 FCR 235 at 240241.

It is necessary to distinguish the position of an amicus curiae from that of an intervener... An intervener, whether pursuant to s 12 of the ADJR Act, O 6, r 8(1) of the Federal Court Rules, s 78A of the Judiciary Act 1903 (Cth) or otherwise, becomes a party to the proceedings with the benefits and burdens of that status. In Corporate Affairs Commission v Bradley (Commonwealth Intervener); (supra) at 396, Hutley JA said:

'A person accepted as an intervener becomes a party to the proceedings with all the privileges of a party. Thus he can appeal, tender evidence and participate fully in all aspects of the argument. His position is quite different from that of an amicus curiae. Interveners have been allowed to appeal. Thus the AttorneyGeneral of the Commonwealth appealed to the Privy Council in AttorneyGeneral (Cth) v The Queen Boilermakers (the ' case) [1957] HCA 12; (1957) 95 CLR 529; [1957] AC 288, though he was only an intervener in R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254 in the High Court.'

His Honour went on to describe the position of an amicus curiae as then understood in Australian law in the following terms (at 398399):

'An amicus curiae has been permitted to argue a case: Morelle Ltd v Wakeling [1955] EWCA Civ 1; [1955] 2 QB 379. The AttorneyGeneral appeared as amicus curiae to argue among other things that a previous decision of the court had been given per incuriam. This is a case where the Crown sought to be made a party, which application was refused. There is no definition in this case of the role of an amicus curiae, but Jowitt's Dictionary of English Law, p 114 defines amicus curiae as follows:

"A friend of the Court, that is to say a person, whether a member of the Bar not engaged in the case or any other bystander, who calls the attention of the Court to some decision, whether reported or unreported, or some point of law which would appear to have been overlooked."

A similar definition appears in Black's Law Dictionary (4th ed), an American publication, and a detailed statement of the position of an amicus curiae is set out in the judgment of the appellate court of Indiana in Re Perry 148 NE Rep 163 at 165 (1925), where the court said:

"Courts undoubtedly have the right to allow an attorney, or other person, to appear as a friend of the court in a case, to act as an advisor of the court, and to make suggestions as to matters appearing upon the record, or in matters of practice. An amicus curiae has no rights in the matter. He can file no pleadings or motions of any kind. He can reserve no exception to any ruling of the court, and of course cannot prosecute an appeal. It has been held in this State that an amicus curiae may, on leave, file briefs, argue the case, and introduce evidence."

The last sentence is not consistent with the law of this State, and there is no provision for an amicus curiae making any contribution to the record.'

More recently, in Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1, counsel for the Tasmanian Wilderness Society appeared as amicus and seems to have fulfilled the traditional role. Other cases are referred to in the Report of the Law Reform Commission on Standing In Public Interest Litigation (ALRC 27), pars 284290.

Counsel appearing as amicus curiae have been heard where the interests of an infant or other disadvantaged person might not otherwise have been protected. Counsel for the AttorneyGeneral appearing as amicus curiae have often been heard to make submissions in the public interest. But there is no prescription of the circumstances in which it may or may not be proper for a court to hear an amicus.

As Sangster J pointed out in Johnson v Sammon (1974) 7 SASR 431 at 433, the function of an amicus has not been defined by English authority. In his article, 'The Amicus Curiae Brief: From Friendship to Advocacy' (1963) 72 Yale LJ 694 at 696, Professor Krislov put the point succinctly when he said, 'In short, through lack of precise rules, the English courts developed a highly adaptable instrument for dealing with many of the problems that arise in adversary proceedings'. No strict rules have been developed, no doubt because no person has the right to address the court as an amicus, and it is for the court to accept the assistance of the amicus if it seems proper to the court to do so. In particular, in the present state of the AngloAustralian authorities (and the same would appear to be so in the United States) no clear line appears to differentiate that which can never be included as part of the role of an amicus curiae from what in a given case, and as a permissible exercise of discretion, the court may permit or require of an amicus.

The general principle is that the parties are entitled to carry on their litigation free from the interference of persons who are strangers to the litigation. But there is an overriding right of the court to see that justice is done. An amicus may be heard if good cause is shown for doing so and if the court thinks it proper. Nothing in these reasons should be understood to delimit or restrict the availability of or effectiveness of this valuable tool (533 536).

14 The accused submits that nothing said above applies to a criminal trial regulated by the CPA. He points out, correctly, that the CPA makes no provision for the possibility of an amicus curiae playing any role in a criminal trial. He also submits, correctly, that the application for change of venue is heard under the CPA s 98 and is therefore to be taken to be part of the accused's trial.

15 The State submits that the court, as a superior court of record, is 'invested with ... the like jurisdiction, powers, and authority within Western Australia and its dependencies as the Courts of Queen's Bench, Common Pleas, and Exchequer, or either of them, and the judges thereof, had and exercised in England at the commencement of the Supreme Court Ordinance 1861'[1] and so it has the inherent power to grant Mr Levitt's application.

16 I note that the High Court granted leave to an amicus curiae to appear in a criminal appeal in Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1. In The Queen v GJ [2005] NTCAA 20 the Court of Criminal Appeal of the Northern Territory accepted that it has power and jurisdiction to permit counsel to appear as an amicus curiae. Mildren J referred to R v Murphy (1986) 5 NSWLR 18 where Hunt J permitted counsel, who had been instructed to seek leave to appear by the President of the Senate, to appear as an amicus curiae in a criminal trial in order to ensure that he, as the trial judge, was appraised of the law relating to parliamentary privilege.

17 Therefore, I conclude that the answer to the first question is 'yes', the court does have power to grant Mr Levitt's application to be permitted to make submissions as an amicus curiae.

18 It is a different issue as to whether the court has power to grant Mr Levitt leave to adduce evidence by way of his two affidavits. The parties did not distinguish between the power to permit an amicus curiae to make submissions and the power to permit an amicus curiae to adduce evidence. However, it is a distinction which in my view is sound. Only a party or an intervener is permitted to call evidence. As Brennan CJ said in Levy v The State of Victoria [1997] HCA 31; (1997) 189 CLR 579, 604 the role of an amicus curiae is:

[T]o offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted. (my emphasis)

19 In Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391, 396, Hutley JA noted that in New South Wales an amicus curiae was not permitted to make 'any contribution to the record'.

20 I conclude that the court has no power to grant Mr Levitt leave as an amicus curiae to adduce the evidence in his two affidavits.

21 As to the second question of whether I should grant Mr Levitt's application, in Levy Brennan CJ said:

The hearing of an amicus curiae is entirely in the Court's discretion. That discretion is exercised on a different basis from that which governs the allowance of intervention. The footing on which an amicus curiae is heard is that that person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted. In Kruger v The Commonwealth, speaking for the Court, I said in refusing counsel's application to appear for a person as amicus curiae:

'As to his application to be heard as amicus curiae, he fails to show that the parties whose cause he would support are unable or unwilling adequately to protect their own interests or to assist the Court in arriving at the correct determination of the case. The Court must be cautious in considering applications to be heard by persons who would be amicus curiae lest the efficient operation of the Court be prejudiced. Where the Court has parties before it who are willing and able to provide assistance to the Court it is inappropriate to grant the application.'

It is not possible to identify in advance the situations in which the Court will be assisted by submissions that will not or may not be presented by one of the parties nor to identify the requisite capacities of an amicus who is willing to offer assistance. All that can be said is that an amicus will be heard when the Court is of the opinion that it will be significantly assisted thereby, provided that any cost to the parties or any delay consequent on agreeing to hear the amicus is not disproportionate to the assistance that it expected (604).

22 I have concluded that I would not be 'significantly assisted' by receiving submissions from Mr Levitt for the following reasons:

(1) the parties are represented by able counsel and they can provide the court with submissions on all relevant facts and the law;

(2) if, as counsel for the State said, Mr Levitt's foreshadowed written submissions referred to relevant authority to which the parties have not referred, the State could have referred the court to that authority as there is no property in a legal submission or authority;

(3) this is not a case where one party is unable or unwilling adequately to protect his or its interests or to assist the court in arriving at the correct determination of the application;

(4) as I have concluded that I do not have the power to permit Mr Levitt as an amicus curiae to adduce evidence, he would be unable to make submissions about or to rely on the contents of his affidavits;

(5) Mr Levitt is not a disinterested and impartial individual; rather he is seeking to advocate a position which the State, as the party bringing the charge, is well able to put; and

(6) I have decided to dismiss the accused's application for a change of venue and therefore nothing Mr Levitt said in opposition to the application would influence the result of the substantive application.

23 I now turn to the substantive application for change of venue.

(1) A prosecution for an indictable offence may be commenced in any superior court that has jurisdiction to determine a charge of the offence, even if it is not the court to which the accused was committed.

(2) An indictment must specify the place where it is to be dealt with by the superior court being -

(a) Perth, or a circuit town proclaimed under the Supreme Court Act 1935 section 46(1), if the prosecution is being commenced in the Supreme Court; or

(b) ...

but the place need not be the place to which the accused was committed.

(1) The powers in this section may be exercised by a court on its own initiative or on an application by a party to a case.

(2) 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).

25 The principles relevant to the exercise of the court's discretion in the CPA s 135 are not in dispute although there is a tension between two of them. There is no Court of Appeal decision from this State which sets out the relevant principles. One case decided by the Court of Criminal Appeal, Johnson v The Queen [2002] WASCA 78, considered the Criminal Code (WA) s 577 which was the predecessor to s 135.

26 In Johnson the State presented the indictment against the accused in Bunbury, which was the location where it said that the offences had occurred. The accused applied to transfer the trial to Perth on the basis that there had been extensive publicity about his charges and his leadership of a local chapter of a bikie club. The trial judge refused the application. On appeal from that refusal, Wheeler J (Malcolm CJ & Anderson J agreeing) said [9]:

The jury system is an essential part of the administration of justice in this State, and it is fundamental to that system that jurors be drawn from the ranks of local people and that trials be held where possible in the locality where the offences are alleged to have occurred. It is of particular importance in smaller communities and remoter parts of the State that justice be seen to be done in respect of offences alleged to have occurred in those localities. In many cases, although not apparently in this one, there is a further factor of considerable difficulty and inconvenience to witnesses which might be occasioned by a change of venue. Further, the mere fact that something may be known of an accused person, or that there may have been publicity surrounding the charge against him or her is not a sufficient reason for a change of venue, it being assumed that properly instructed jurors will follow instructions which they are given and put such matters aside. It is accepted that in some cases a change of venue will be necessary, but there is a heavy onus which lies upon the accused to show 'an exceptional case and real and substantial reasons', before a change in venue will be granted: Grieves, Rose and Read v The Queen, unreported; FCt SCt of WA; Library No 8724; 18 February 1991.

27 As stated above it is a fundamental principle that 'where possible' an indictment for a crime should be tried by a jury drawn from the place where the crime is alleged to have been committed. I will refer to this as the local venue principle. However, where, as in this case, the State has presented the indictment at a different location to the nearest jury court it is necessary to balance the local venue principle with the statutory reality that the CPA s 84 provides that it is for the State to determine where a trial is to occur. In accordance with the CPA s 135, the Court may not override the State's determination to specify the venue for a criminal trial unless there is a 'good reason' to do so. Sections 84 and 135 reflect the well accepted principle that the State's discretion to determine the venue of a criminal trial should not be overridden other than for real and substantial reasons: R v Cattell [1968] 1 NSWR 156, 156 (Herron CJ) and (Sugarman JA) which was applied in Burge v The State of Western Australia [2006] WASC 171 [5] (Miller J) and in Boyd v The State of Western Australia [2012] WASC 388 [7] (Hall J).

28 There may be competing good reasons for a trial to be held in a number of different places. For example, one good reason for holding a trial in a venue may be that it is the locality where the offences are said to have occurred. A good reason for holding it in another locality may be because the majority of the witnesses and the accused reside in that other locality. A good reason for holding it in yet another locality may be that it would be easier to obtain an impartial jury in that locality.

29 The parties are content for me to determine this application on the basis that the CPA s 135 does not require the court to exercise its discretion to change the venue determined by the State simply because a 'good reason' to do so is shown. Rather, the existence of a 'good reason' is a condition precedent to the exercise of the court's discretion to change the venue. The exercise of the discretion must be on the basis of all relevant considerations and the merits of the case as a whole. There must be a dominant good reason or combination of good reasons to warrant a change of venue. There is no exhaustive list of relevant considerations and the discretion is not fettered by rigid judicially promulgated rules or precise formulae': Yanner (1997) 98 A Crim R 51, 52 (Pincus JA), 53 (de Jersey J) and 58 (Muir J).

30 The dominant consideration in the exercise of my discretion is the interest of justice. The fundamental requirement is for the accused to receive a fair trial: Cattell, 160 (Holmes JA) Burge [9]. But the proper exercise of the discretion must take into account not only the interests of the accused, but the interests of justice generally: Burge [11]; R v Anderson (1974) 5 ALR 268. It is both necessary and sufficient for the applicant to show that the change of venue is necessary for the purpose of securing a fair and impartial trial.

The interests of justice require that a range of other 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 [11].

32 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.

33 The tension I mentioned earlier is between the local venue principle and the principles reflected in the CPA s 84 and s 135 that it is for the State to determine the location of the trial and the court should not readily interfere with the exercise of that discretion. In most cases the State presents the indictment in the court in the area where the offence is said to have occurred. Where the accused then applies to transfer the trial to another location there is no tension between the two principles. Johnson is an example of such a case. As the State has presented this indictment in Perth rather than Kalgoorlie, the two principles are in tension.

34 In resolving that tension it is important to appreciate that the local venue principle was established decades ago when people were less mobile and communication was difficult. Now, information is communicated virtually instantaneously across the State and country and remote facilities can be established so that people in one area can view a trial held hundreds of kilometres away in real time.

35 Thus, two of the justifications for the local venue principle which Wheeler JA identified in Johnson are of less weight. Also, there is far less inconvenience to the court, parties and witnesses which might be occasioned by a trial in another location. Witnesses are more mobile but if they do not travel to the courthouse where the trial is being held the technology is readily available for witnesses to give evidence by audiovisual links to the court. Its use in criminal trials is common.

36 Also, the local venue principle involves presumptions about community feelings which in a particular case may be outweighed by other considerations. For example, in this case, the local Kalgoorlie community may feel more concerned about the risk to public safety and the cost to its community of the trial being held in Kalgoorlie than concerned about the jury not being drawn from the local area or not being able to walk into the local courthouse to see it take place in Kalgoorlie.

37 These are reasons why, in my opinion, care must be taken not to use the local venue principle as an overriding principle justifying change of venue to the area where the alleged offence was committed. It must give way if there is a real risk that a trial held locally will not be in the interests of justice, as a whole. It is a consideration of more weight when the State applies to change a venue or has presented an indictment at a place other than the local venue for what appears to be its administrative convenience: Director of Public Prosecutions (Vic) v Bennett [2004] VSC 148 [6].

38 In deciding an application for change of venue the court must also consider the strategies which the court may use wherever the trial is held to deal with any risks identified to the holding of a fair trial. These include appropriate directions to the jury and additional security. The court should also accept that in the usual case, it is to be assumed that the jury will follow the judges' directions about disregarding influences from outside the court.

39 The fundamental principle is that the accused is entitled to a fair trial and that this concept requires the court in this case to consider whether there is a real risk that the trial will be unfair, or be seen to be unfair, if held in Perth.

40 The prosecution statement of material facts alleges:

On Sunday 28 August 2016, the accused reported a burglary at his residence during which two unregistered mini motorbikes were stolen.

About 8.50 am on Monday 29 August 2016, the accused was driving a Nissan Navara motor vehicle, registered number [omitted] on a bush track at the western end of Clancy Street, Boulder searching for his stolen motorbikes.

The accused observed one of his motorbikes, namely a 70cc Zhe Jiang motorbike, being ridden by the 14yearold [deceased] down Clancy Street onto the bush track directly in front of him. Upon sighting the accused, the [deceased] accelerated heavily away from the accused who accelerated heavily to catch up to the [deceased]. The accused pursued the [deceased] for approximately 100 metres along damp gravel tracks until he caught up to the [deceased] at which point the accused's vehicle has struck the [deceased] causing [him] to fall from the motorbike.

The accused has continued to drive over the [deceased] and the motorbike, eventually coming to rest approximately twenty metres from the point of impact.

The accused has immediately contacted emergency services and commenced chest compressions on the [deceased] until the arrival of emergency services at which point he was taken into custody. The [deceased] was declared [dead] shortly thereafter.

The accused voluntarily participated in an electronic record of interview during which he admitted pursuing the motorbike with the intention of stopping the rider.

In explanation the accused stated that the rider unexpectedly veered in front of him and he was too close to be able to avoid him.

41 The State has provided the following particulars of the accused's alleged criminal negligence:

(1) the speed of the accused's vehicle at the time of the collision;

(2) the manner of the accused's pursuit of the deceased;

(3) the manner of the accused's driving at the location of the collision given the terrain, footpath and weather conditions;

(4) the accused's vehicle's close proximity to the deceased's small bike prior to the collision;

(5) the accused's pursuit of the deceased despite the deceased not wearing any protective clothing;

(6) the accused's admissions in the EROI that his driving was unsafe;

(7) 'the collision itself versus the version by the accused';[2] and

(8) the accused's admission in the EROI that he was emotional and/or angry and wanted to get the bike and /or apprehend the deceased.

42 The defence case is that the accused's driving was not criminally negligent and that the deceased suddenly and unexpectedly turned the bike he was riding across the accused's vehicle immediately prior to the collision.

43 The issues for the jury will be the manner of the accused's driving, the manner of the deceased's riding and whether the accused's manner of driving was criminally negligent, as alleged.

44 The first basis for the accused's application for change of venue is the local venue principle. I accept that it is a principle to be given some weight. However, for the reasons given above, it is of lesser force than it was historically.

45 Further, given the evidence about the social disruption and violence which occurred in Kalgoorlie when the accused first appeared in court in Kalgoorlie, I am not prepared to assume that the overwhelming view of residents of the local area is that the trial should occur in Kalgoorlie. This is an exceptional case. The local venue principle cannot be applied as it can be in the usual case. The evidence in this case, which I summarise below means that I cannot assume that the local venue principle has more force than the risk to public safety and the cost to the community of the trial being held in Kalgoorlie.

46 It is relevant to take into account the material filed by the State which it says provides good reasons relating to safety why the trial ought to be heard in Perth.

(1) the affidavits of Inspector Anthony James Colfer (Colfer) sworn 13 February 2017, resworn 27 February 2017, sworn 17 March 2017 and sworn 23 March 2017;

(2) the affidavit of Alison Jackson sworn on 7 March 2017; and

(3) the affidavit of Clinton Marshall sworn on 10 March 2017.

Colfer also gave oral evidence, which I find to be truthful and reliable.

48 I also take into account the affidavits of Seamus Francis Rafferty sworn 13 February 2017 and 10 March 2017, which were tendered by the accused.

49 There are some matters of little or no relevance dealt with in the affidavits and so I will not summarise their contents. The evidence which I accept is of substantial weight is that which proves that on 30 August 2016 the accused, who is Caucasian, was to appear from custody at the Kalgoorlie courthouse for a mention of this charge relating to the death of the deceased who was an indigenous boy whose family and extended family have traditional ties to the Kalgoorlie/Boulder area. By 9.00 am that morning a group of approximately 200 people had gathered in the vicinity of the courthouse. They were there apparently to either protest against the accused or to confront him.

50 Other than members of the deceased's family, the group were denied access to the courthouse and requested by police to disperse. A large number of the group did not do so and they rushed towards the courthouse. The police were unprepared and outnumbered. Some of the group attempted to obtain access to the courthouse through the rear door. In their attempt they broke down the side gate to the courthouse in a violent manner. Colfer ran to the back of the courthouse and physically blocked their entry to it.

51 Other members of the group approached the front of the courthouse and threw rocks and other like items at it which broke its glass doors and windows. In order to protect the accused it was decided that he would appear in court by video link. When the crowd was advised of this, they stopped trying to enter the courthouse. However, they did not disperse and a considerable number of them moved onto the main road in front of the courthouse.

52 Some members of the group began to throw rocks, loose paving and other items at the local police who had mobilised in response to the group's actions. Other members of the group caused damage to police vehicles by throwing items at them and jumping on them. Some members of the group physically assaulted police officers who were attempting to maintain control.

53 Over the course of approximately three hours, approximately 50 police officers from the Kalgoorlie/Esperance area were deployed in response to the incident. Fifteen of these police officers reported being physically injured during what Colfer describes as 'the riot'. For reasons of safety and security, Colfer directed that the courthouse be cleared of all individuals, other than police officers and security staff. He also directed that entry to the surrounding streets in the Kalgoorlie CBD be closed to both traffic and pedestrians. Local businesses in the immediate vicinity were also advised to close due to the risk of property damage. At Colfer's request, members of the deceased's family and local indigenous elders addressed the group in an attempt to stop the antisocial behaviour. According to Colfer, this had little effect and a substantial number of the group continued to act in a disruptive and violent manner. To Colfer's knowledge, no member of the deceased's family were involved in the antisocial behaviour.

54 The behaviour of the group continued until approximately 11.45 am when local police officers, in conjunction with a local supermarket, arranged for food to be provided to members of the group free of charge in a location some distance from the courthouse.

55 A total of 30 individuals were arrested and 55 criminal charges were laid in relation to alleged unlawful acts committed during the incident. These charges included rioting causing damage, criminal damage, obstruction and assaulting public officers.

56 The GoldfieldsEsperance District Office of the WA Police assessed that damage to police vehicles was approximately $34,077 and the cost of deploying police officers during the incident was approximately $290,000 (excluding base salary). The Department of Attorney General advised that the cost repairs to the courthouse was approximately $18,800.43.

57 There is no evidence that there has been any further rioting since 30 August 2016. On that date, a group of local indigenous families established a camp, called the 'Justice Camp' on the site were the deceased had died. Colfer attended the camp on several occasions between 30 August and 16 September 2016, when the Justice Camp closed. He was approached on numerous occasions by members of the camp who stated that it was their view that the accused had been incorrectly charged with manslaughter, and that the appropriate charge was murder.

58 On 15 September 2016, the accused's former rented home in Boulder was destroyed by fire. The house had been broken into on 11 and 13 September 2016. A forensic examination indicated that the fire was deliberate but no charges have resulted from the police investigation.

59 On 15 September 2016, at approximately 2.00 pm, Colfer witnessed two motor vehicles being driven at speed past the Justice Camp. The drivers of the vehicles yelled out obscenities using derogatory and racist terms. On the same evening, Colfer observed another motor vehicle drive past a group of indigenous people while the driver yelled out derogatory terms. The driver of that vehicle was charged with disorderly conduct.

60 Colfer notes that in 2016 leading up to the deceased's death there was increased public frustration in relation to motor cycle thefts around Kalgoorlie/Boulder. Some members of the community began to share their frustration using social media and a particular Facebook page. I infer that some of those posts were interpreted by members of the indigenous community as being racist. Colfer says that the use of social media to vent frustration contributed to racial tension between the indigenous and nonindigenous population in Kalgoorlie/Boulder.

61 Following the deceased's death, various comments were posted on community based social media sites. These comments indicated that some members within the indigenous community were of the view that indigenous youths were being targeted by nonindigenous males who were using their motor vehicles to run down youths riding off rode motor cycles around Kalgoorlie/Boulder. These posts have since been deleted from the website by the administrator.

62 Colfer is also aware that Twitter accounts were also used to report on the deceased's death. Some of these accounts attracted negative comments from members of the public.

63 On 29 August 2016, Colfer was present at a briefing given by Inspector Hamish McKenzie who confirmed that the deceased's death had resulted in derogatory and offensive comments being posted on a social media site. At the request of the police, the creator of that page closed it. Colfer is aware that since the closure of that site, further community based social media pages and sites have been created. Colfer says that members of the community are using these sites to vent frustrations about social issues involving the indigenous population in Kalgoorlie.

64 The police instituted various initiatives designed to overcome what appeared to be a division in the Kalgoorlie/Boulder community between indigenous and nonindigenous people. Colfer says that based on his experience as a police officer in regional Western Australia, he is aware that the community in the Kalgoorlie/Boulder region remain sensitive to issues of racism and perceived injustice. He says that the court proceedings involving the accused have the potential to disrupt community relationships should the trial proceed in Kalgoorlie.

65 Colfer also says that should the accused's trial take place in Kalgoorlie it will be necessary for WA Police to establish a police operation to ensure community safety and security. Such an operation would be conducted over a period of 15 20 days and would include the following:

(1) local police officers attached to the Kalgoorlie/Esperance region; and

(2) police resourcing from Perth, including four incident management team officers, 24 officers, 4 mounted police officers, one canine handler, 6 traffic enforcement officers and police media unit officers.

The total financial cost would be in excess of $175,000 for accommodation, travel and meal allowances (excluding base salaries).

66 There may also be additional costs depending on the security needs of the accused. In this respect, when the accused was remanded in custody after being charged with this offence, a decision was made to transfer him to Perth based on the prison risk assessment that his presence would have a negative impact on the good order and management of the Kalgoorlie Eastern Goldfields Regional Prison (the prison). In part, this was due to the prison's high indigenous prisoner population and members of the deceased's family being incarcerated at the prison. The Assistant Superintendent of the prison, Mr Marshall, says that these factors together with the nature of the accused's alleged offending makes 'the task of maintaining the safety and security of the prison a very resource intense and risk adverse task' for the Department of Corrective Services (DCS).

67 Mr Marshall says that if the accused was transferred to Kalgoorlie for the trial he would need to be placed in confinement and isolated. He would not be able to have any outside yard time or be able to interact with other prisoners because of the assessed high risk to his safety. In Mr Marshall's view any prisoner interacting with the accused would also be at a significant risk from the majority of prisoners at the prison. There would also be increased staff escorts required to ensure the accused's safety during his movement to and from the prison and courthouse. He may also require a DCS high security escort and police escort when moving between the prison and the courthouse.

68 In Mr Marshall's opinion, the accused's transfer to the prison would cause great unrest in the prison population. This would place great stress on both the staff and prisoner groups, thereby requiring additional resources. Mr Marshall says that these additional resources are not available in Kalgoorlie. By inference they would have to be brought in from other centres. Mr Marshall is also concerned that the accused's presence at the prison would cause great distress to the deceased's family who were housed at the prison.

69 Colfer also deals with the extra effort that would be required to ensure the security and safety of all persons involved in the trial if it was held in Kalgoorlie. In relation to prospective jurors, this would include a police presence when the jurors attended and left the courthouse, police officers to accompany jurors to their homes after court proceedings, increased police patrols and police officers being available 24 hours a day to immediately respond to any security concerns that may arise. As the jury would be selected from the local community, the responsibility for security of the jury would continue after the trial was concluded. Colfer says that safety plans would also have to be put in place for other individuals involved in the trial process including the judge, his or her staff, court staff and the parties' counsel. These resources would need to come from outside the Kalgoorlie/Boulder area.

70 As of 17 March 2017, Colfer said that there were currently no signs of any unrest within the community of Kalgoorlie/Boulder in respect to the trial. However, he is aware that the community is divided on issues relating to the trial and the broader matters of race and criminal justice. Colfer says that it is likely that as the trial date gets closer, there will be more public comment by members of the community about the trial, either through the media or through protesting in person, and this will increase community tensions about race and justice. Colfer is aware that through informal networks there is discussion in the community about protests being conducted during the trial, at the door of the Kalgoorlie courthouse. Colfer says that based on his experiences as a regional police officer, he honestly believes that there is a real risk of violence between the different factions within the Kalgoorlie/Boulder community, should the trial be conducted in Kalgoorlie.

71 In his oral evidence, Colfer said that the incident on 30 August 2016 had been the most frightening experience of his long police career. However, he conceded that if the trial was held in Kalgoorlie the WA Police would provide the resources necessary to ensure the safety of all persons involved in the trial. He also acknowledged that currently there were no ongoing violent incidents in the area.

72 I also take into account that on balance, the convenience of witnesses does not weigh in favour of a change in venue. The State's brief includes only two statements from lay witnesses who live in the Boulder area. The State submits that their statements should be admitted without calling them. I do not assume that they will not be required to give oral evidence. I am of the opinion that if they are to be called to give oral evidence, they could give evidence by video link if the trial judge ordered that to occur or they could travel to Perth to give evidence. There is one witness from St John Ambulance and five police witnesses who were stationed in Kalgoorlie at the time of the alleged offence. The State says that these witnesses will all be in person for the trial in Perth. The other six State witnesses are either police officers or experts who live in Perth. I accept the State's evidence that the witnesses to be called by the State are in or can be brought to Perth to give evidence. The accused has not suggested that he intends to call any witness who would be inconvenienced by the trial being held in Perth.

73 The State's evidence and submissions to the effect that the accused's family no longer reside in the Kalgoorlie/Boulder area are not disputed by the accused. Thus, inconvenience to the accused and his family does not weigh in favour of a change of venue.

74 The State relies on the unchallenged affidavit of Allan James who deposes on behalf of the deceased's mother and father that if the trial is held in Kalgoorlie they have 'serious reservations and believe that justice will not be served and that an unbiased outcome will not be achieved'.

75 I do not accept some of the bases for these concerns and neither do I accept that a trial held in Kalgoorlie will be biased against either party. However, I accept that Mr James and, more importantly, those on whose behalf he speaks, do not want the trial to be held in Kalgoorlie.

76 The second basis for the accused's application for change of venue is that it is not practicable to hold a view from Perth.

77 In this respect the State relies on the unchallenged affidavit of Lawrence Panaia which deposes that the police airwing plane and a charter plane could be used to transport the judge, his or her staff, counsel, the accused and jury to and from Kalgoorlie. The cost of the police plane would be borne by the Department of the Attorney General and the cost of the private plane would be approximately $7,800. Private buses would then be required to transport the jury to and from the Perth and Kalgoorlie airports. These costs, when compared to the costs of providing security for the trial in Kalgoorlie, are moderate.

78 There are three other considerations relevant to holding a view from Perth. The first which the accused says tells against the practicality of a view from Perth is that it is not practicable for the accused to be transported from Perth to Kalgoorlie in the same plane as the judge and counsel. If a view was held it would be up to the trial judge to approve the travel arrangements but I do not see any impediment to the judge and counsel being in the same plane as the accused and security officers, as long as the usual rules about noncommunication were observed. However, if the trial judge was of the same view as the accused's counsel, a separate plane could be chartered for the accused. Whilst this would appear to be an additional cost, I take into account that if the trial was held in Kalgoorlie, the accused, the judge, his or her staff and counsel, at the least, would all have to travel to and from Kalgoorlie, principally at the State's expense, in any event. Consequently, the cost of travel for a view is not a matter which favours the change of venue.

79 Next, there is the fact that some prospective jurors may not be able to fly. It would only be practicable to hold a view if the jury flew to and from Kalgoorlie. This means that prospective jurors who could not fly would be precluded from jury duty. This would be unfortunate but it is not something which makes a view from Perth impracticable.

80 Lastly, there is the additional time required for a view from Perth. I estimate that if a view was required the trial would take an extra day. This is not a significant period of time. Further, without in any way wishing to devalue the jury's time, it would be extra time for the jury only. There would not be extra time for the accused, judge and counsel given that the judge and counsel are based in Perth and would have travel time to and from Kalgoorlie if the trial was held in Kalgoorlie.

81 I have set out above some of the evidence relating to the expense of holding the trial in Kalgoorlie. In doing so I do not mean to imply that the cost of ensuring that the trial runs smoothly and safely in Kalgoorlie is a telling factor in my decision. I have set out that material to indicate that if it was thought that the cost of holding the trial in Perth and holding a view in Kalgoorlie was a significant factor favouring the holding of the trial in Kalgoorlie, the cost of the view is by far offset against the cost of holding the trial in Kalgoorlie.

82 Finally, the accused submits that the evidence relied on by the State does not justify the trial being held in Perth, as opposed to being held in Kalgoorlie in accordance with the local venue principle.

83 In considering this ground, it is important to note that the State is not required to justify its decision to present the indictment in Perth. The CPA s 84 gives the State the discretion to determine where the trial should be held and the onus is on the accused to show that the exercise of discretion to hold the trial in Perth should be overridden.

84 I am satisfied on the basis of the evidence summarised above that the deceased's death and the charging of the accused caused tensions within the Kalgoorlie/Boulder community to reach a tipping point resulting in the violence that occurred on 30 August 2016. Whilst that violence is not ongoing, I accept that there continues to be tensions within the local community. This means that there is a significant potential for a similar incident to occur if the accused's trial was held in Kalgoorlie. I also accept that there is a significant risk of injury to persons involved in the trial and risk of damage to property should the trial be held in Kalgoorlie. I am of the opinion that the risks would be much lower if the trial was held in Perth.

85 Importantly, I am very concerned that if the trial was held in Kalgoorlie, jurors would feel intimidated and fear for their safety. I am of the opinion that this would impact on their ability to perform their role as impartial decisionmakers. I am of the opinion that directions to the jury in this regard and security measures taken by the WA Police would not entirely neutralise these concerns. In order for the accused to obtain a fair trial it is absolutely essential that the jury empanelled to hear his charge be able to, and feel free to, return an impartial verdict based on the evidence, and not on any other matters. I am of the opinion that there is a significantly greater likelihood of this occurring if the trial is held in Perth rather than Kalgoorlie.

86 The matters referred to by Hall J in Boyd favour the trial being heard in Perth rather than Kalgoorlie, other than perhaps the difficulty of those having an interest in attending the trial doing so. However, an audiovisual link should be able to be established between Perth and Kalgoorlie to ensure that those members of the Kalgoorlie/Boulder community who wish to view the trial and who cannot, or decide not to, travel to Perth can view it from Kalgoorlie.

87 Taking all relevant factors into account, including the local venue principle, the interests of justice in ensuring that the accused receives a fair trial is best achieved by refusing the application for the change of venue. There is no evidence which suggests that the accused will not receive a fair trial in Perth. Consequently, the application is dismissed.

[2] I have put point 7 in quotation marks because it is a quote from the accused's written submissions of the State's particulars and I do know what it means.

Supreme Court Act 1935(WA)

Judiciary Act 1903(Cth)

Supreme Court Ordinance 1861

Criminal Procedure Act 2004(WA)

At a glance

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