R v Gojanovic [2005] VSC 9

Supreme Court of Victoria|2005-01-27|Before: KELLAM, J.

CRIMINAL LAW - Practice and procedure - Place of trial - Application for change of venue - Test to be applied - Primary entitlement of local community to have local cases tried locally - Application based on publicity given locally to a previous trial and to the result of appeal and upon diabetic condition of accused - s.359(1) Crimes Act 1958.

1 This is an application on behalf of the accused, Dennis Gojanovic for a change of venue from the sittings of the Supreme Court of Geelong to its sittings at Melbourne.

2 The application came on first before Osborn J on 16 December 2004. Unfortunately by reason of technical difficulties a recording of those proceedings was not made and no transcript is available. However, His Honour prepared file notes of his ruling. It is clear from those file notes that His Honour was not satisfied on the material before him at that time that the application should be granted, but he gave both the prosecution and the accused an opportunity to present further material before the court. He adjourned the matter until 24 January 2005 to enable that to occur. He made it clear that he would be unable to deal with the matter that day but that a judge would be available to deal with it. Both the prosecution and those acting on behalf of the accused man have provided further information and Mr Lindner of counsel, who now appears for the accused, has renewed the application for a change of venue to be made.

3 The accused in this matter is charged with murder. He was convicted before a jury in Geelong in 2002. On 2 July 2004 his conviction was set aside by the Court of Appeal and an order was made for his retrial. That retrial is currently fixed for hearing at Geelong on 9 February 2005.

4 The application for change of venue is supported by an affidavit sworn by the accused man dated 26 November 2004. The accused in that affidavit states that he suffers from Type 1 Diabetes, and has done so since approximately July 1987. His medical treatment regime requires that he take insulin subcutaneously four times per day at least half an hour before meal times. He has been in receipt of this treatment regime for some time, and in particular during his first trial in 2002, he was required to take insulin subcutaneously four times per day.

5 At the time that he swore his affidavit he was situate at Barwon Prison. He said that when accommodated at Barwon Prison he follows a regular time table of insulin injection. However, during his first trial which took place between 1 May 2002 and 31 May 2002 he was held in remand at Port Phillip Prison, and transported to and from Geelong Court on a daily basis. He said that on a number of occasions prior to his trial at Geelong he was required to attend at the Supreme Court of Melbourne. He said he did not encounter any problems with maintaining his diabetes treatment regime whilst attending the Supreme Court of Melbourne. He asserted that "the time spent in transport was usually only half an hour and at regular times". He said that during his first trial, however, he was administered insulin between 7.00 a.m. and 7.30 a.m. at Port Phillip Prison, and then processed and sent to the admissions despatch area to wait for the country escort transport vehicle. He asserted that once he was "processed" he was kept in an internal holding room and waited up to three hours to board the Geelong transport vehicle. He referred to an occasion on Friday, 3 May 2002 when he was in the van for a period of five hours after it left Port Phillip Prison and went to Geelong via Ballarat. A portion of transcript was tendered before me whereby the trial judge expressed concern at that event describing it as "a totally unsatisfactory situation." However, the transcript tendered before me demonstrates that the cause of that occurrence was investigated by the trial judge and steps were then taken to ensure that the accused was placed on the "list of movements" each night to ensure that there was no repeat occurrence.

6 Mr Gojanovic deposed that on other occasions during his trial and after court at Geelong, he was held in the Geelong police cells between half an hour and five hours before the van arrived to return him to Port Phillip Prison. On several occasions in the course of the trial Mr Gojanovic states that he arrived back at Port Phillip Prison in a distressed state consistent with hypoglycemia. Mr Gojanovic expressed concern that if he were to be held in custody in Port Phillip during his forthcoming trial he would suffer the same problems which arose regarding his transport to and from Geelong Court on the occasion of his first trial. He states "on a Melbourne escort I am permitted to attend the medical centre at Port Phillip shortly before the van leaves so I do not have to receive my insulin between six and 7.30 a.m. I am also permitted to enter the court cells. The journey to court is only 20 minutes." I might interpose that as someone who visits Port Phillip Prison regularly I am surprised at the suggestion that it may take only 20 minutes to travel between Port Phillip Prison and the Supreme Court. Nevertheless he continues: "I would arrive in sufficient time to communicate with my legal practitioners during my trial. Delays would be avoided. I would have proper access to meals, I would be able to properly access whether I should take my insulin and be confident in assessing when I would be able to eat a meal on my return to Port Phillip Prison."

7 He states that throughout the four week trials at Geelong in 2002 he arrived back at Port Phillip Prison on occasions at 9.00 p.m.

8 In addition, the affidavit of the accused man exhibits a number of articles which appeared in the Geelong Advertiser during the course of his previous trial. He contends that by reason of the difficulties with transport to Geelong Court and by reason of his condition of diabetes Type-1, together with the publicity which has been given previously to his trial, he will not receive a fair trial on this occasion.

9 The application was supported additionally by an affidavit sworn by Professor Geoffrey Nicholson, the Director of the Department of Endocrinology & Diabetes at Geelong Hospital. Professor Nicholson gave evidence at the plea of the accused man on 15 August 2002. He has read the medical file and perused the records of the accused man. He stated:

"I have also read the affidavit of Dennis Paul Gojanovic dated 8 December 2004. The treatment regime, as described by him, should, in my opinion, be adhered to in order to keep his blood sugar level stable. This would include regular meals containing an appropriate amount of carbohydrate, regular insulin injections, and regular monitoring of blood glucose levels finger prick. In addition, it is necessary for him to have access between meals to additional foods, liquid, and blood glucose monitoring." He said further, "In my opinion, any interference or failure to comply with his treatment regime can have serious medical consequences, namely hypoglycaemia. Untreated hypoglycaemia can lead to coma, convulsions and death, it can also cause errors of judgment and behaviour disturbance. Furthermore, poor management and/or monitoring could lead to severe hypoglycaemia, dehydration, diabetes ketoacidosis, coma and death."

10 He expressed the opinion that at the forthcoming trial arrangements should be made whereby the accused man would spend the shortest possible amount of time en route from his usual prison environment to the court house.

11 All of the above material was before Osborn J on 16 December 2004.

12 The additional material which has been filed by the accused is an affidavit by the solicitor for the accused, sworn 6 January 2005, exhibiting a photocopy of a headline, picture and article published by the Geelong Advertiser in relation to the successful appeal of the accused man. The publication is dated 1 September 2004, the headline is "Murder Retrial Shock" and "Judge in Error - Retrial Ordered." The article in question contains the following statement:

"The Victorian Court of Appeal last month allowed an appeal against a murder conviction and granted a retrial on the grounds that the trial judge had failed to admit relevant evidence. This constituted a miscarriage of justice, the Victorian Court of Appeal found, and it ruled his conviction should be quashed and the sentence set aside."

13 The additional material provided by the prosecution consists of an e-mail from Corrections Victoria dated 24 January 2005. That e-mail confirms previous advice given by Corrections Victoria on 15 December 2004, which material was before Osborn J, that is, to the effect that there are no general travel arrangements from Barwon Prison to courts, and that special provision would need to be made for the transport of the accused to Geelong Court. Barwon Prison is not able to undertake the transport of the accused to and from court each day within existing staffing resources and, accordingly, the transport would be at additional cost.

14 I am advised by the prosecution that the additional cost of such transport is $531 per day. This is not a cost which Corrections Victoria, nor the DPP, nor Legal Aid are prepared to pay. Accordingly, whether the accused man is to be tried at Melbourne or Geelong, he will be transferred from Barwon Prison to Port Phillip Prison for the period of the trial. Corrections Victoria estimate the travelling time from Port Phillip Prison to Geelong to be "50 to 60 minutes minimum", and the travelling time from Port Phillip Prison to Melbourne is estimated to be "one to one and half hours minimum". Corrections Victoria notes that for prisoners travelling from Port Phillip Prison to Geelong, "the route may not be direct, that is the van may need to collect and/or drop off other prisoners en route".

15 The prosecution opposes the application and contends that the accused has not discharged his onus to demonstrate that there is sufficient cause to make an order for change of venue. Ms Williams, who appears for the prosecution, points out that it is intended to call up to 50 witnesses, the majority of whom are from Geelong, and that inconvenience and not inconsiderable cost will be suffered by them if they are required to travel to Melbourne to give their evidence.. The family of the deceased attended throughout the first trial and seek to do so again. They reside to the west of Geelong.

16 As I said, the trial is fixed for hearing on 9 February 2005. I am advised that the matter will proceed before Osborn J on or about that date, whether the matter is to be heard in Geelong or Melbourne. I have been told this morning, that taking into account a proposed voir dire, the trial may take up to four weeks. This, I note, is a similar length to the time taken by the first trial.

17 The application is made pursuant to s.359(1) of the Crimes Act 1958, which provides to the court the discretion to remove a trial from a fixed venue to another place. The criteria for the exercise of the discretion are well established. As Lush J said in R v Ratten:[1]

"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 (and in this case it is the same thing) in the community area in which the crime is alleged to have been committed."

"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 with it, and to remove a circuit trial to Melbourne can leave 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."

19 In R v Iaria & Panozzo[3], Nettle J, as he then was, said:

"I take the law now to be.... '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'."

20 In the case before me the accused relies partly on the issue of publicity given to his first trial and to the result of his successful appeal. In my view there is little substance in this issue. The publicity which was given to the first trial of the accused man was consistent with fair and accurate reporting. It took place at the time of the trial in September 2002. That is now well over two years ago. There was one article in September 2004, subsequent to the successful appeal of the accused man. However, that article cannot be said to be prejudicial to him in any way. Geelong is a major centre with a population in excess of 200,000 people. The trial judge will no doubt raise with the jury panel the question of any knowledge or belief of knowledge about matters the subject of the trial, which potential jurors might have and which might be prejudicial.

21 In my view the accused has not established any basis to say that the publicity which this case has been given is out of the ordinary and likely to prejudice him, so as to create a risk that he will not receive a fair trial if it is heard in Geelong. I might add the commonplace experience of judges is that juries are able to put aside anything that they may have read or heard in the media about a particular trial and to conscientiously comply with their oath to "bring in a true verdict according to the evidence".

22 I turn now to the issue of the medical condition of the accused man, and to the question of whether transport arrangements to the Geelong Court from Port Phillip Prison, are so much more onerous for him than the transport arrangements between Port Phillip Prison and the Supreme Court of Melbourne, that sufficient cause is shown in all the circumstances to change the place of trial.

23 The issue which arises is caused by inadequate arrangements being made for the transport of prisoners and those on remand awaiting trial. One could be forgiven for concluding that it is extraordinary that the relevant bureaucracy cannot make arrangements to transport the accused man for his trial from Barwon Prison to court at Geelong, a distance which I calculate to be approximately 15 kilometres. Rather, those responsible contend that it is necessary to move him to Port Phillip Prison so that he can then be transported to Geelong Court. The information provided by Corrections Victoria to the DPP is that there are no general travel arrangements from Barwon Prison to court. Movement of prisoners is undertaken by GSL Pty Ltd. The current contract includes taking prisoners from Melbourne Assessment Prison, Port Phillip Prison, and Dame Phyllis Frost Centre, to and from court each day, but does not include other prison locations. This can be negotiated but at an additional cost. Barwon Prison would not be able to undertake the transport of Mr Gojanovic to and from court each day "within existing staff and resources".

24 Thus the present application is made by the accused seeking that a principle based upon "public interest" and "powerful reasons of public policy" be put aside, because Corrections Victoria, apparently by reason of inadequate contractual arrangements having been entered into with the private supplier of transport services for prisons, is unable to fulfil its obligations to ensure that persons on remand and awaiting trial are transported to and from courts in a reasonably satisfactory and efficient manner.

25 It is appropriate to note that this is not the only example of difficulties being experienced by the court with the transport of persons on remand to and from court in recent times. There are at present a number of other persons awaiting trial held on remand at Barwon Prison. Difficulties have been experienced by the court in relation to their movements to and from court in Melbourne, in some circumstances because they have been transported from Barwon Prison to Port Phillip Prison first.

26 Indeed on the occasion of the first trial, as well as the matters referred to above, the learned trial judge expressed his concern over evidence before him that the contractual arrangements between Corrections Victoria and the supplier of transport services, were that persons to be transported were not required to be a court until 10.00 a.m. As he pointed out such contractual arrangements make it difficult for courts sitting on circuit to commence proceedings earlier than 10.15am.

27 It is totally unsatisfactory that the prospect of transferring to Melbourne a trial, which as a matter of public policy should be held in Geelong, arises because Corrections Victoria, or the private company to which it has outsourced transport arrangements, will not provide satisfactory and efficient transport arrangements to courts for accused persons.

28 However, unsatisfactory as it is, in the end result if the accused man cannot receive a fair trial, or indeed there is a risk that he will not receive a fair trial by reason of that fact, I have little alternative but to order that the proceeding be heard in Melbourne. I have considered the material before me carefully. The entirely unsatisfactory incident which occurred on 3 May 2002 when the accused man was taken to Ballarat en route to the Supreme Court in Geelong, did not reoccur after the trial judge enquired into the circumstances. I would be surprised if those responsible for transport would make such a mistake again. Accordingly, I do not count that as a matter of significance for the future trial.

29 The real issue is whether by reason of his Diabetes-1 the accused man is at risk of suffering deleterious consequences because of the transport arrangements to be made for his trial in Geelong.

30 Corrections Victoria informed the DPP on 24 January 2004 that medical procedures are on foot to ensure that the accused man has insulin and breakfast at Port Phillip Prison prior to departure for court, at lunchtime in the cells, insulin and meals upon return to the prison, together with an evening dose of insulin at the prison. Corrections Victoria has a clear duty of care to ensure that the accused man is provided with his insulin and the opportunity to consume food at times which are appropriate to his medical condition. They must take appropriate steps to ensure that they do comply with their duty of care. This should not be difficult. There are numerous persons in the prison system who suffer from diabetes. Assuming that they do so, there is no reason to assume that the trial of the accused man in Geelong will prove significantly more onerous for him than a trial in Melbourne.

31 In such circumstances the accused man has not established that there is sufficient cause to order the change of venue of the trial of the accused. The obligation is upon Corrections Victoria to ensure that the accused man's health is suitably protected, that he is transported to court within a reasonable time for the commencement of the hearing, and from court to prison within a reasonable time from the end of the sittings. Accepting that there were some difficulties encountered by the accused on the occasion of the last trial, some of which were caused by an industrial dispute at the prison, it does not appear to me to be appropriate to vitiate the principle that a trial should take place in the area in which the offence occurred on the basis of an expectation that Corrections Victoria will not fulfil its obligations to the court and its duty of care for the accused.

[1] VSC unreported 4 August 1970.
[2] [2004] VSC 148.
[3] (2004) VSC 96.

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