R v Iaria and Panozzo [2004] VSC 96

Supreme Court of Victoria|2004-03-23|Before: NETTLE J

For the reasons already given, I am also of the view that it overstates the burden that lies upon an applicant for a change of venue to say that the venue will not be altered unless the court is satisfied that there is a reasonable possibility that the applicant will not have a fair and impartial trial and that the discretion although wide is not lightly to be exercised.

Like Cussen J in Cording v Trembath and Starke J in R v Forsyth and Lanson I am not prepared to say in this case that a proper trial would not be possible before a jury in the district in which the events in issue are alleged to have occurred. But now, even more than 80 years ago, it is desirable to go further than that, to ensure not only that a fair trial would be had in fact, "but that it should be had in such circumstances that all reasonable men would so admit". For again to invoke the observations of Brennan J in Jago, even if judicial measures cannot always secure perfect justice to an accused, the legal right of an accused truly stated is a right to a trial as fair as the courts can make it.

Given the nature and gravity of the offences alleged, the circumstances of the previous trial, the apparent local hostility towards the accused and the publicity which is in evidence, I am not satisfied that all reasonable men would admit that a trial in Wodonga would be fair. Consistently with the rights of the accused to a trial as fair as I can make it, and bearing in mind the responsibility which is cast upon me to avoid unfairness to either party, but particularly to the accused, I propose to order that the venue of the trial be changed to Melbourne.

[1] R v Patterson, Hartley and Carrighan (1867) 4 WW & A'B (L) 43

[9] (1987) 24 A Crim R 139 at p. 140; see also R v Forsyth and Lanson Unreported 27 April 1984, Starke J, at p. 5

[13] See, for example, R v Yanner [1998] 2 Qd R 208 but cf. R v Heffernan [2002] NTSC 32, per Martin CJ

[14] McKenna v McKenna [1984] VicRp 58; [1984] VR 665 at p. 674

[16] R v Yanner, supra at p. 215, per Muir J

"Obstacles in the way of a fair trial are often encountered in administering criminal justice. Adverse publicity in the reporting of notorious crimes (Murphy v The Queen [1989] HCA 28; (1989) 63 ALJR 422; 86 ALR 35), adverse revelations in a public inquiry (Victoria v Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25, absence of competent representation (McInnis v The Queen [1979] HCA 65; (1979) 143 CLR 575; MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512), or the death or unavailability of a witness, may present obstacles to a fair trial... When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer."

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