Northern Territory
ORDER
Application refused.
JUDGE1
The applicant applies today under s.297(2) of the Criminal
Code to have his
trial held at Alice Springs instead of Darwin. The question of changing the
venue for a criminal trial is also
dealt with in s.83(2) of the Supreme Court
Act, but the two provisions appear to be to the same effect.
2. The Indictment charges that on 15 January 1988, at Darwin, the accused
possessed cannabis for the purpose of supply to another. On 28 June the
accused was committed for trial in Darwin. In this jurisdiction,
the
committing magistrate specifies the place where the trial is to be held, under
s.112(3) of the Justices Act: clearly it must be a place where the Supreme
Court sits. It then becomes a matter for the Supreme court to decide matters
relating
to trial. If this court is satisfied in terms of s.297(2) of the
Code, that "good cause" has been shown for the trial to be held
in some place
other than that named in the Indictment, it may so order.
3. There is authority that very strong reasons must be advanced
before the
court should change the venue of a criminal trial. Statements to that effect
were sometimes made in a context where the
Attorney-General in the
jurisdiction concerned had the responsibility and power to select the venue
for trial. That had some effect
on the court's attitude. It is not the case
in this jurisdiction. I turn to some of the cases to which I have been
referred.
4.
In Lemon v Attorney-General (1933) 50 WN (NSW) 19, the majority of the
Full Court noted that the right of the Attorney-General to fix a venue was not
one lightly to be interfered
with and that the court required a very strong
case to be made out before it would do so. In that jurisdiction the court had
statutory
power to change the venue if it considered that a fair or
unprejudiced trial could not be had at the venue selected by the
Attorney-General,
or if for other reasons it was expedient to change the
venue.
5. The Full Court considered that it could not be said to be inexpedient
to
hold the trial at the place selected by the Attorney-General, unless the
inconvenience which might result would be so great as
to amount practically to
a denial of justice.
6. Some years later in R v Holden (1956) 73 WN (NSW), the Court of Criminal
Appeal
in that State considered that the reasons for any change in venue must
be "real and substantial". It considered that publication
of an account of
committal proceedings in a local newspaper circulating in Goulburn, which was
the place where the venue had been
laid, was not, as such, a ground for
changing the venue. It considered that that happened in every country town
whenever there were
committal proceedings, and that the court should attribute
to jurors in those country towns a sufficient understanding of their oaths
to
be guided by the evidence and only by the evidence in trying a case.
7. Another ground which was relied on by the applicant in
that case and
rejected by the court was that a Crown witness, perhaps the principal witness,
had discussed the case with her customers
in a shop.
8. Street C.J. enunciated the basic approach at p 445, as follows: "Prima
facie, trials are held where the crime is alleged
to have been committed".
9. More recently, in R v Cattell (1968) 1 NSWLR 156, the Court of Appeal in
New South Wales ordered a change of venue. In that case the Attorney-General
had fixed the venue for trial
in Newcastle where the accused, well-known
persons charged with fraud, had established the Latec group of companies which
had operated
extensively in Newcastle and its district. The court noted that
the Attorney-General's discretion should not be overridden except
in
exceptional cases and for real and substantial reasons. It considered
however, that the trial should be held in circumstances
such that all
reasonable persons would admit that it was a fair trial; see also to the same
effect Cording v Trembath [1921] VicLawRp 27; (1921) VLR 163.
10. Herron C.J. considered that this principle should apply to cases of the
type before the court. On the facts the court considered
that because of the
local association of the Latec group with Newcastle it might be difficult to
obtain a jury in Newcastle, none
of the members of which were directly or
indirectly affected by the failure of those companies; accordingly, it ordered
that the
venue be changed to Sydney because although both Sydney and Newcastle
were equally convenient, there might be greater prejudice in
Newcastle.
11. Sugerman J. considered that the case was exceptional because the crimes
charged were not, in fact, local to Newcastle
in the way that the general run
of crime could be said to be local to a particular locality. The committal
proceedings had been conducted
in both Sydney and Newcastle with witnesses
from both centres, and there was no question of a view having to be taken. His
Honour
also noted that persons from Newcastle had invested in the failed
companies.
12. In R v Knott (1974) Qd R 58, the court ordered a change in venue from
Cairns to Brisbane, on the Crown Prosecutor's application. The accused was a
very known
and highly respected medical practitioner in Cairns where he had
resided for some 36 years and had been a member and office bearer
in many
organisations. There had been heated local public discussion of the case in
which it was alleged that he had murdered a
person who had been his mistress.
The court considered that a trial held in Cairns would not be such that all
reasonable persons
would admit that it was a fair trial. Cairns, at that
time, had a population of some 30,000 people, and the court noted that every
citizen of Cairns was a potential witness.
13. In this jurisdiction in R v Pepperill (1980-81) 54 FLR 327 Muirhead J.
ordered a change of venue from Alice Springs to Darwin under s.83(2) of the
Supreme Court Act, when past newspaper coverage of the events was likely to
prejudice the fair trial of the accused; there had been a local newspaper
editorial calculated and likely to influence opinion against them.
14. In Tang and Sing (1986) A Crim R 203, Gallop J. ordered a change in venue
from Christmas Island to Perth, on the ground that he was not confident that a
fair trial could
be had on the island. His Honour observed that very strong
reasons should be shown before a court ordered a change in venue; one
of the
factors was that a fair trial could not be held because of local prejudice or
by reason of wide spread prejudice against the
accused by the persons from
whom the jury panel would be selected, or amongst whom local prejudice might
be thought to exist.
15.
In that case some members of the Chinese community on Christmas Island
had expressed adverse opinions about the two accused, Chinese
persons accused
of murder; they had also expressed opinions as to what should happen to them.
The jury panel would have contained
a significant number of Chinese people.
The two accused were well known in the local Chinese community. 148 persons
had been summonsed
for jury duty for the trial and 75 had applied to be
excused. Christmas Island, of course has a small population.
16. Finally, in
Lange (1987) 25 A Crim R 139, the accused had been charged
with murdering her husband. She applied to change the venue of the trial to a
place other than Toowoomba.
de Jersey J. considered that although such a
violent crime naturally would stir up local interest and conjecture, and
generate considerable
rumour in the area, that did not mean that a jury could
not be found which would be impartial. A considerable amount of evidence
was
placed before his Honour as to various peoples' opinions on the case. His
Honour ultimately refused the application.
17. This
brief survey of some of the cases on change of venue illustrates
that only when good cause is shown should the basic approach that
trials be
held where the crime is alleged to have been committed, not be followed.
18. I have heard from the applicant. He has
been before this court before
and on two occasions - once after a trial had proceeded for a number of days -
a juror eventually realized
he knew the applicant; on both occasions this
resulted in the jury being discharged. So it is not surprising that the
applicant,
fearful lest this happen again, and of matters associated with it,
has made this application. It appears that for various reasons
he has sought
and obtained some publicity in the past.
19. He states that his family is very well known in Darwin, having been here
for some 30 years, and that he is well known. His concern is that misguided
people in Darwin, acting perhaps on mere gossip and
rumour, may think that he
is a bad criminal; he gave the court some illustrations of his encounters with
this type of rumour, most
of which seem to have occurred at places of public
resort, hotel bars and places such as Fannie's nightclub.
20. His concern is
that there may be some prejudice against him in Darwin,
and, more particularly prejudice of which he would not be aware when a jury
is
being selected. I have no doubt that he genuinely worries about this; he also
clearly feels that he has been victimized by the
authorities. Nevertheless I
am confident, despite his unfortunate experience in those earlier two trials,
that a fair and impartial
jury can be found and empanelled here in Darwin for
his trial. The reality of the matter, as opposed to his perception of it, is
that in the city of Darwin the great majority of people know nothing of him or
his doings. He is not a public figure and any publicity
from his previous
trials was sufficiently in the past to have been long forgotten by the people
of Darwin. The circumstances are
such that he can have, and be seen to have,
a fair trial in Darwin.
21. As to the death of his brother, it appears to me that sufficient
care has
been taken, fortunately, to prevent his being identified with that event in
the eyes of the public.
22. I approach his
application by considering what the public interest best
requires in the light of the facts of his case and of the principles
illustrated
by the cases I have mentioned. For the reasons I have indicated,
I refuse his application; I do not consider that good cause has
been shown for
a change in venue.
23. The result is that his trial will proceed as scheduled in this
courthouse. There should be
no public report of the application today or of
this decision, until after his trial, so as to avert any possible prejudice to
his
trial.