and O'Neil Counsel for the respondent : W.J. Karczewski Solicitor for the respondent : Solicitor for the

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.