Plaintiff v Defendants

2 On 28 April 2005, the body of the deceased was located in a burnt out utility against a tree near Glenrowan. A funeral followed and the deceased was buried. On 20 April 2006 an inquest into the death of the deceased was commenced but adjourned. On 6 June 2006, the body of the deceased was exhumed. On that same day, the applicant was shot in the arm, and hospitalised. On 15 June 2006, the applicant was arrested and charged with the murder of the deceased. On 16 November 2006, the applicant was granted bail. On 27 November 2006, the second accused was also charged with the murder of the deceased.

3 On Monday, 28 May 2007, a committal hearing was commenced at the Wangaratta Magistrates' Court, and evidence was heard over the ensuing five days. On Friday, 1 June 2007, after the hearing of evidence concluded, the magistrate made an order committing the applicant for trial on the charge of murder. The magistrate declined to commit the second accused. Later in June 2007, the Director of Public Prosecutions opted to directly present the second accused on the charge of murder. On 21 June 2007, the second accused was granted bail. There were later directions hearings. The court was advised of the proposed making of an application for change of venue. It was indicated to the Court that the trial was likely to last for 4 or more weeks and that it could be heard in Melbourne or Wangaratta to commence on 29 September 2008.

4 The applicant's application for the trial to be held in Melbourne, which came on for hearing before me on 5 February 2008, was supported by the second accused. Two bases were relied on. One concerned the possible calling as a witness for the prosecution, one Patrick Cummins, who has been and still is the Court Registrar at Wangaratta. The second, argued much more extensively and with reference to extensive newspaper clippings, was as to the potential adverse effects of pre-trial publicity. The application was opposed by the prosecution.

5 As to the applicable principles, my attention was specifically drawn, not only to a number of cases in other jurisdictions, but also to five relatively recent Victorian authorities, which I shall note in chronological order: Morris v R (unreported J.D.Phillips J.,16 September 1991), R v Iaria and Panozzo [2004] VSC 96; (2004) 9 VR 425, DPP v Bennett [2004] VSC 148; (2004) 10 VR 355, R v Gojanovic [2005] VSC 9, and DPP v Towle [2007] VSC 551. Some differences in expressions used when articulating the appropriate approach to the exercise of discretion were the subject of a review in Iaria and Panozzo. I have proceeded in accordance with the ultimate formulation provided in that case, although the result arrived at by me is different to the result there.

6 In short, each application must be considered on its own merits. "Merits" can involve consideration of many factors, including but not limited to fairness, the perception of fairness, local concerns, pre-trial publicity, inconvenience, and health. A trial should ordinarily proceed in the district in which the offence charged is alleged to have been committed. On the other hand, and in my assessment, relatively more importantly a trial should be held in such circumstances that all reasonable men would admit that a fair trial could be held. In debate before me, I was cautioned about looking too closely at the facts in past cases. In my assessment, there is a substantial benefit accruing from closely reading past cases. The benefit lies not only in being satisfied as to the applicable principles, but also in seeing how those principles were applied relative to the merits of the factors reviewed. That is particularly the case where there must be the exercise of a discretion in circumstances relating to the assessment of future risk. The value lies not so much in the making of a close comparison of facts, but in considering matters seen broadly as being relevant to the assessment of future risk in other circumstances.

7 It was put to me that there was the risk in a trial at Wangaratta, not present to any comparable degree in a trial in Melbourne, of the jury not acting fairly, because one or more members would or might be affected by pre-trial publicity or by knowledge that Patrick Cummins might be a prosecution witness. As to Patrick Cummins, I had limited evidence that included: that he was the Court Registrar at Wangaratta; that he had given evidence at the committal hearing as to having officiated at the wedding of the applicant and the deceased; that he was not listed as a witness on the presentment; that the prosecution had decided not to call him, but circumstances might lead to that decision being reviewed; that, in the normal course of his duties, he had nothing to do with the summoning of jurors. At this stage, only by speculating as to a variety of other matters, including what he might unwisely choose to do, could there be seen to be any risk of his position giving rise to a risk of unfairness affecting one or more potential jurors.

8 There was evidence before me as to the relative, as between a trial in Melbourne and one in Wangaratta, inconvenience to witnesses, and the relative need for, and inconvenience to a jury of, holding a view. On balance, the indications supported a preference for a trial in Wangaratta, but it seemed to me that there was very little in it. The key consideration was the matter of the potential impact of publicity to date upon a potential jury. It was put to me on behalf of the applicant and the second accused that there was a reasonable possibility that the applicant would not get a fair trial.

9 Placed before me on the hearing of the application were more than 90 pages of clippings of newspaper articles. There were more than 25 from the Shepparton News, more than 20 from each of the Albury Border Mail and the Wangaratta Chronicle, of the order of 10 from the Melbourne Herald-Sun, and 3 from The Age. About 25 to 30 pages of the clippings preceded the laying of charges on 15 June 2006. A like number related to the reporting of the committal. Smaller numbers reported on developments such as the charging of the second accused, the granting of bail, and the request for a change of venue. There were only about four articles after the start of July 2007. I was taken through many of the 90 pages by Mr Hill and Mr Croucher. They focused on matters that they said were of potential prejudice. They focused particularly on expressions of opinion, especially by police in the period before the applicant was charged, and by witnesses during the committal hearing. There were many matters as to which I was minded to agree with their submissions. The circumstances of the death of the deceased and his later exhumation and other developments were such as were likely to attract, and appear to have attracted, more than usual interest in the local community. There has been publicity over a long period. The local press coverage had been supplemented by coverage in the Melbourne papers that were and are likely to sell well in Wangaratta.

10 My reading of the articles led me to the conclusion that the vast majority of the clippings after the applicant was arrested and charged were, or appeared to be, fair and accurate reports. The close examination of some parts of the clippings to which counsel subjected me was reminiscent of some retrospective reviews of transcript. It did reveal matters that would have been of concern if jurors, or potential jurors, had been given a full set of the clippings to pick through at their leisure, during or shortly prior to trial. I can accept that after a proximate review of that kind, there might be the risk of the readers then having indelible, or close to indelible, memories of inadmissible or otherwise inadmissible details. But such an approach has to me an air of unreality, given that at least many months and, as to the early articles, more than two years, will have elapsed between publication and trial.

11 There is the further point that goes to the general issue of whether "we"(whether the community generally or those engaged in the administration of justice) can trust juries. Judges routinely explain to potential juries at the time of empanelment the importance of impartiality and of putting aside any recall of past publicity. Judges routinely ask potential jurors to seek to be excused if they believe that they know of any matters that might impinge on their being impartial. Recent research with jurors after verdict has served to reinforce the expressions of judicial confidence in juries generally, and in their capacity to put to one side prejudicial pre-trial publicity. This is not the place to wax lyrical about the vital role of juries, starting with Lord Devlin. It is the place to say that I have every confidence in the capacity of the people of North-East Victoria to provide and to be seen by any objective observer to provide, a jury which will give the applicant and the second accused a fair trial.

12 I would but briefly come back to the decisions in the five Victorian authorities that I have referred to above. In three of the five, it was ruled that there be a change of venue. The circumstances in those cases that gave rise to the making of an unduly high risk of unfairness were very different from those in the case before me.