Section 30 of the Criminal Procedure Act 1986 provides as follows:
"30 Change of venue
In any criminal proceedings, if it appears to the court:
(a) that a fair or unprejudiced trial cannot otherwise be had, or
(b) that for any other reason it is expedient to do so,
the court may change the venue, and direct the trial to be held in such other district, or at such other place, as the court thinks fit, and may for that purpose make all such orders as justice appears to require."
The accused is presently scheduled to be tried along with two of his co-accused for the murder of Katherine Foreman at Wollongong commencing on 3 February 2014. He seeks an order by notice of motion filed on 28 October 2013 that the venue for the trial be changed from Wollongong to Sydney. That application is made in the following circumstances.
[2]
Background
Ms Foreman grew up, lived and worked in the Wollongong area and the surrounding localities such as Port Kembla, Balgownie, Mount Warrigal, Coniston, Oak Flats, Albion Park and Woonona. She graduated from the University of Wollongong and obtained employment with Legal Aid in Wollongong. Ms Foreman later obtained employment at Dribbus Kovacevic Lawyers in that city. She then worked for R&M Legal (now known as McNamara & Associates) in Nowra before establishing her own firm in Wollongong where she practised extensively.
The Crown case is that Ms Foreman died as the result of a deliberately lit fire in her home in Corrimal at approximately 2.30am on 27 October 2011. The accused is alleged to have been involved with his co-accused in the planning, preparation and commission of this offence. It appears that he had been in a relationship from time to time with Ms Foreman for a number of years. The accused's semen was recovered from Ms Foreman at a post mortem examination.
The crime is said to have generated significant local publicity. I have not been furnished with the details of that publicity or any evidence to establish it. However, it is not in contest that the events that give rise to these proceedings have attracted considerable interest and notoriety in the Wollongong area and the surrounding districts. The accused contends that the publicity that has already been generated in Wollongong is such that it is unlikely that any, or many, prospective jurors will not already have heard of the case and, by implication, will have formed views concerning it. The present application is based upon the proposition that this will not also be the case with respect to potential jurors in the Sydney area. The accused contends that he will be unlikely to receive a fair trial in Wollongong in these circumstances because of the suspected predisposition of jurors drawn from the local area where media interest in the death of Ms Foreman has been extreme, and where she was a well-known identity.
The accused also contends that the publicity during the trial favours a change of venue. It is not clear to me why that should be so, given that nothing that is reported in either location will extend beyond what falls out in evidence during the trial, and that no obvious distinction between publicity of the trial in Wollongong as opposed to Sydney has been suggested or established.
Wendy Evans is also charged with the murder of Ms Foreman. Ms Evans has pleaded guilty to that charge and is due to be sentenced by me. Ms Foreman and Ms Evans were known to each other professionally and in due course developed a personal friendship. It appears that a number of witnesses who are likely to be called at the trial are employees of the Department of the Attorney General in Wollongong who will both know Ms Evans and will have also known Ms Foreman. Several other people in the Wollongong legal fraternity are likely to become witnesses at the trial. The accused's solicitor Benjamin Archbold has sworn a detailed affidavit setting out the names of these people and to some extent the nature of their relationship with the deceased and with each other.
Although no submissions were made about the significance of these potential witnesses or of their relationship with the deceased, there appears to be some concern that their evidence should not be given in the local professional environment in which they practise or circulate. The burden of this evidence would appear to be that the pool of local citizens available to be empanelled as jurors from Wollongong would be more likely to include people who knew the nominated witnesses than an equivalent group of potential jurors drawn from Sydney. That presumably carries with it the potential problem that the number of panels from whom the final jury might be drawn will have to be larger, with the associated prospect that it will not be possible to empanel sufficient jurors with no connection to the accused or these witnesses even from an expanded pool.
The accused contends in these circumstances that he will not receive an unprejudiced or fair trial and that the change of venue from Wollongong to Sydney is likely to alleviate that concern.
[3]
Consideration
It is uncontroversial that it falls to the Attorney General to fix the place of trials. The Crown contends that this is a right with which a court ought not lightly to interfere. It is a matter in which the onus for a change of venue lies heavily upon the accused: R v Dorrington [1969] 1 NSWR 381; R v Brewer [2000] NSWCCA 488. R v Cattell (1967) 86 W.N. (Pt 1) 391 is an example of a case in which a change of venue was ordered. Sugarman JA commenced his judgment at 392 with a brief statement of some considerations to which it is convenient to refer:
"This is an exceptional case. First, there are absent from it those considerations which are usually regarded as requiring or making it desirable that a trial for crime should take place in a particular locality, notwithstanding that that course may involve certain disadvantages to the accused person such as those flowing from local discussion of the crime or local publicity given to the committal proceedings, which disadvantages, it is thought, are met by a just expectation that the jury will perform their duty in accordance with their oaths."
The circumstances that made that case exceptional consisted in the fact that the accused was charged with offences alleging that he fraudulently issued a prospectus that ultimately attracted considerable public subscriptions from the Newcastle area. The companies concerned were well established there. A significant proportion of those who took up subscriptions in the companies, and who consequently lost their entire investment, came from the Newcastle area. As his Honour described it, "because of the companies' local associations and business activities, the value of such local investment was out of proportion to the population of the locality." His Honour went on to observe at 393 that:
"…[o]f all recent company failures it is thought that the failure of this group would be best remembered in Newcastle, and it may be difficult to obtain in Newcastle a jury of twelve persons, none of whom was personally affected, or had a relative, friend or acquaintance who was affected, in his pocket, by such failure. No doubt there were investors in these companies in Sydney also; but Newcastle is a much smaller community and because of this, and of the disproportion earlier mentioned, the chances of encountering such persons as I have referred to on a Newcastle jury are so much the greater."
It is implicit in the opening remarks of Sugarman JA, and it is not in contest, that I should assume that jurors drawn from the community, wherever that might be, will perform their task as jurors in accordance with their oath to consider the evidence impartially and assess it in accordance with directions that they are given. McHugh J made some relevant remarks in this context in Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 at [31] as follows:
"The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one - accused, trial judge or member of the public - could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials. It is of course true that, if a jury persists in returning a verdict that is contrary to law, the trial judge must accept it. But that only means in Lord Mansfield's words that, although '[i]t is the duty of the Judge... to tell the jury how to do right... they have it in their power to do wrong'."
The Victorian Court of Appeal considered issues of the kind arising for consideration in this case in The Queen v Boriss Vjestica [2008] VSCA 47. The informative discussion in the judgment of Maxwell P at [2]-[36] should be noted.
The accused's principal contention in this case is based upon the proposition that any steps that can be taken either to eliminate or to reduce the risk that they will not or may not perform in accordance with their oath should be taken if it is possible to do so.
I am informed that a substantial portion of the Crown case will rely upon telephone intercepts. The Crown contends that to that extent at least the prospect of juror partiality is neutralised by the impersonal nature of the evidence.
The accused contends that one or more of the selected jurors will either know, or know of, him or Ms Foreman. The Crown's response is that such a concern overlooks what will inevitably be the instruction given to the panel in waiting concerning the identity of all accused, as well as witnesses nominated as likely to be called in the trial. The Crown also contends that in a city the size of Wollongong it will be entirely feasible to empanel a jury that has no disentitling connection with or knowledge of any party or prospective witnesses.
The Crown also submits that pre-trial publicity is a modern fact of life. Jurors are regularly warned about disregarding information that they may have gleaned from sources at large in the community before the case commences. This case is no different.
Finally, the Crown reiterates the desirability of crimes committed in a particular community being tried in that community. In the absence of exceptional or poisonous circumstances, such as those identified in Cattell, there is no warrant for removing the trials to Sydney.
It does seem to me that there are no circumstances of the kind that Sugarman JA referred to in Cattell that apply by analogy here. The burden of that decision was that a general mood of ill feeling towards the accused might have existed in Newcastle because he was allegedly associated with a corporate structure that failed, which directly affected the financial health of a large portion of the local population from which the jury was to be drawn. Perhaps implicit in the reasoning in that case is the notion that some potential jurors might have been so affected or influenced by the activities of the companies with which the accused was associated that calls for impartiality may inadvertently, or even consciously, have gone unheeded.
Be that as it may, there does not appear to me to be anything particularly exceptional about the circumstances of the present case. The touchstone of the accused's contentions is fundamentally that it will not be possible to find a jury in Wollongong, drawn from those who are called for service when the trial commences, who actually heed the trial judge's exhortations to withdraw from the case if they have any reason to suspect that they may know someone who is likely to be called as a witness, or have a strong or unshakable view about some aspect of the case. If that concern materialised, a change of venue may be required. However, it is simply not possible to test it in advance. Unless or until that unlikely situation presented itself, I consider that it is necessary to proceed upon the assumption that prospective jurors will listen to and abide by the directions and instructions they are given. Any different assumption is clearly inimical to the current traditional and widespread use and selection of juries to hear criminal trials in the first place, whatever the particular venue may be.
It seems to me that there is no proper basis for a change of venue in this case. Accordingly I consider that the accused's notice of motion should be dismissed.
[4]
Amendments
12 July 2017 - Deletion of duplicated heading
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Decision last updated: 12 July 2017