Mr Stewart ("the applicant") moves for an order that his trial listed at Grafton District Court on 12 August 2019 be moved to another District Court. If granted the other Court would either be Lismore District Court or such other Court determined by the Chief Judge. The Crown opposes the making of the order. The trial is in fact listed to start not before 21 August 2019.
In support of his application he relies upon an affidavit of his Solicitor the contents of which are not disputed by the prosecution. The accused is alleged to have caused grievous bodily harm with intent to cause grievous bodily harm to [VS] on 9 September 2017 at Halfway Creek, which I understand is near Grafton. The background to this litigation is set out in a Crown case statement which alleges against the accused that the accused "branded" the alleged victim on the left buttock with a hot metal implement whilst she was sleeping at the property of a man called Brian Taylor in the early evening of 9 September 2017, at which at least two other people were also staying.
The accused and the complainant were known to each other, having previously been in a relationship. They are described as both "heavy drug users and associate with people of similar ilk". The accused had been in custody from 4 October 2016 until 8 August 2017 and on his release he had rekindled his relationship with the complainant, however he was alleged to be upset with the complainant for discussing the matter that led to his incarceration with the Grafton Police.
The complainant's account is that before she went to sleep that evening the accused was not at the property apparently, on her version, arriving after she went to sleep.
The accused was arrested on 27 September 2017 whilst a passenger in a motor vehicle, being driven by one of the witnesses to the branding incident. The arrest occurred in Queensland and the accused was extradited to New South Wales. When interviewed by police he denied branding the complainant and also denied allegations of petrol bombing the complainant's motor vehicle on 20 September 2017 at South Grafton and vandalising her motor vehicle on 22 September 2017 at South Grafton.
On 25 August 2018 the applicant was found guilty by a jury in Grafton in respect of account of "fire a firearm at a dwelling house with reckless disregard to the safety of any person". He was sentenced in Sydney on 10 December 2018 to 7 years imprisonment with a non-parole period of 4 years. The matter is the subject of an appeal to the Court of Criminal Appeal.
Annexed to the solicitor's affidavit are a number of newspaper reports printed in the Grafton "Daily Examiner", "The voice of the Clarence Valley since 1859". Articles were printed on 3 September 2018, on the front page, of the finding of guilt for the firearms offence with details of the accused's name and the allegation; on 10 October 2018 on page 3 of the hearing of submissions from the Crown and the defence, with some comments by the sentencing judge, and on December 11, 2018 setting out details on page 3 of the sentence imposed and the findings of fact. His Honour's remarks on sentence included comments about the accused's motivation, the seriousness of the offence, the need for a significant sentence, detail of his extensive criminal history, the contents of a psychological report, details of his drug dependency, and the Judge's findings that there was a "glimmer of hope" of rehabilitation.
The details of those reports are further set out in the affidavit, with what one might regard as more submissions than evidence within those details. With regard to the first article in time it is submitted that "potential jurors who have read this article would be highly prejudiced by the accused's prior criminal character which is synonymous with the word 'guilty' on the front page". With regard to the second article it is said that the "prejudicial effect of the article strongly suggests that the accused has a predisposition for violence." It is submitted that the accused cannot be protected by "possible judicial directions". As to the third article the references to the accused's criminal history and his likelihood of re-offending are said to be "unlikely to be remedied with judicial warnings".
The affidavit states that on 7 January 2019 the same newspaper published a summary of the most dramatic Court events in 2018. The trial of the accused is discussed under the heading "These c…s need to be taught a lesson" (all words in uppercase). The article features a photograph of the bullet hole in the wall of apartment the subject of the charge by which the accused has been found guilty, with details of the accused's name and the prior finding of guilt. It must be said in relation to this last article which has the heading "Biggest court dramas of 2018" that there are a number of cases mentioned, the trial of the accused being the fifth matter identified out of eight stories in the article. They include a case involving dangerous driving causing death, a committal for trial for murder, the charging of "child stealers" (as they are described), "drug fuelled" car pursuits, a case involving a man having sex with a horse, a "knife wielder" who threatened citizens and police then escaping a jail sentence and a man who defrauded his employer of $500,000 to "enjoy the affection and adulation of a series of Filipino and Thai women" by giving them money to "improve their lives". I have read all these articles but have only sought to summarise them, sometimes beyond the detail provided in the affidavit.
In the context of the newspaper being, as I understand it, the only local newspaper published out of Grafton, and given the extensive coverage of the accused's previous appearance at trial, it is submitted that in the interest of ensuring the accused is afforded a fair trial the matter should be moved from Grafton, preferably to Lismore District Court, otherwise to such court as chosen by the Presiding Judge.
In support of the application the applicant's counsel relies upon a passage in Murphy v The Queen (1989) 167 CLR 94, particularly at [10] and following, which I take to be a passages at pages 98 - 99 of the judgment of Mason CJ and Toohey J. The relevant passage is:
"it is fundamental that, for an accused to have a fair trial, the jury should reach a verdict by reference only to the evidence admitted the trial and not by reference to facts or alleged facts gathered from the media or some outside source. However, the might of media publicity in "sensational" cases make such a pristine approach virtually impossible. Recognising this, the courts have used various remedies such as adjournment, change of venue, severance of the trial of one co-accused from that of the others, express directions to the jury to exclude from their minds anything that they may have heard outside the court room and the machinery of challenge for cause." (emphasis is on the underlined words)
I recognise that these various options are available in the appropriate case.
Their Honours went on to say:
"It may be that in a particular case none of these remedies will be fully effective. But it is misleading to think that, because a juror has said something the circumstances giving rise to the trial, the accused is lost the opportunity of an indifferent jury"
Their Honours then cited Canadian and United States authority (the latter over 100 years old then) which reflected upon the fact that even having information about a case beforehand did not an impartial juror make.
Their Honours said:
"The importance of a fair trial to an accused must not be underestimated. But it is not the only consideration. It is important that anyone charged with a criminal offence be brought to trial expeditiously. Not only is that in his or her own interest but it is in the interests of witnesses and also, in cases such as the present, in the interest of the family of the victim".
These observations were made in the context of an examination of the operation of s.46 Jury Act 1977, in respect of challenge for cause. It was not held that there had been a miscarriage of justice in that case although, in respect of that particular issue, it was accepted that in certain circumstances extensive publicity may permit an inference to be drawn of potential jurors being aware of the publicity and no formal affidavit evidence may be required to make challenge for cause. The 'Anita Cobby' case, as the Murphy and others trial was known, was a case involving far more widespread and "sensational coverage" than this matter.
The Crown referred the court to the decision of R v Hughes [2015] NSWCCA 330, particularly at [61]-[86]. In that appeal the Court of Criminal Appeal considered whether the trial judge erred in not ordering a stay of proceedings on the basis of pre-trial publicity.
The Court cited decisions such as R v Dupas [2010] HCA 20, particularly at [26], and R v Burrell [2004] NSWCCA 185, at [39]. In Dupas, the High Court approved dicta in English Court of Appeal judgment of Abu Hamza, from 2007, that is to be assumed that jurors will perform their task conscientiously and that jurors will understand from appropriate direction that they have the opportunity and responsibility of hearing all the evidence whereas media reports may simply be allegations or may not be at all relevant to the proceedings. They also are capable of understanding relevant directions given to them by the trial judge. The Court of Criminal Appeal in Hughes discussed matters relating to the confidence in juries deciding cases based upon the directions that they are given about the media reporting of individuals or the allegations, as reflected in the directions given by the trial judge and specific questions asked by the jury. It was held that the evidence in the case demonstrated that the jury system is "robust and capable of ensuring that a person accused of serious offences can receive a fair trial, despite prejudicial and ill intended comments widely and irresponsibly published on mainstream and social media"
[2]
Consideration
S.30 Criminal Procedure Act 1986 provides that in any criminal proceedings if it appears to the court that a fair or unprejudiced trial cannot otherwise be had, or that for any other reason it is expedient to do so, the court may change the venue and direct the trial to be held at another place as the court sees fit.
This provision was discussed in the decision of R v Turnbull (No. 1) [2016] NSWSC 189. Relevantly, the Court held that there was a presumption in favour of a local trial as a rule of practice, not a rule of law, each application for change of venue had to be considered on its own merits without preconceptions. It is not necessary to show exceptional circumstances - what must be shown is that it is necessary that for the purposes of securing a fair and impartial trial. The assessment of what is "expedient" in a particular case will involve a practical consideration of matters bearing upon the balance of convenience for the purpose of a jury trial.
Other decisions have made clear that an application for change of venue upon the basis of adverse media publicity casts an onus upon the person or party making the application. Further, by reference to Dupas and R v Jamal (2008) 72 NSWLR 258, at [261[-[262], the court must bear in mind the contemporary jurors are independent and are persons assumed to take seriously their oaths and affirmations. Juries are not to be regarded as "fragile" or open to influence from what they may read media.
I appreciate as relevant to this matter that many of the decisions dealing with relevance of adverse publicity when considering relevant relief are concerned with cases where there has been extensive reporting of "allegations", rather than reporting of details of the past criminal history of a particular accused and/or details of specific crimes for which a particular accused has been convicted and sentenced. Although the "Murphy" matter did involve extensive reporting of the criminal pasts of the accused. Here the relevant publicity directly relates to allegations in relation to a separate matter to that which the accused is to be tried, in respect of which he has been found guilty by a local jury and been sentenced to a substantial term of imprisonment, the details of which have received coverage in the local print media on a number of occasions.
That having been said, the evidence of media coverage is confined to print media, a medium that is increasingly falling out of favour. I have no evidence of electronic media coverage or any social media coverage. Nor do I have evidence of information that may be obtained by Internet searches, although I assume for the purposes of this judgment that matters previously reported in the print media would be located with a 'Google search' of the accused's name. I appreciate that framing a particular warning about past reporting of the prisoner's crimes, or the particular crime for which he was convicted last year, would be difficult as it would of necessity require a suggestion of past criminal conduct. I also note that the relevant articles were published at least 7 months and longer before the trial is due to start.
The matter is not confined to a consideration of the availability of appropriate warnings. The jury selection process, particularly the operation of s.38 of the Jury Act, will require provision of information to the jury, including the name of the accused, the names of the people associated with the current case, but also details of relevant addresses. It would also include not just details in relation to the case at bar, but details in relation to the previous trial as for or the names of relevant witnesses and addresses. In this way if any potential juror claims to know the accused, or know of the accused, or any person specifically identified as related to either case that person will be required to identify themselves. The court makes the assumption that persons in the jury panel will truthfully respond to such an invitation.
There is also the mechanism of inviting jurors who are regular readers of the relevant newspaper to identify themselves and to specifically question those persons as to whether they have a memory of reading any article that related to any individual in the case, including the accused, without emphasising the fact that previous publicity is primarily directed at the accused. Again, the court will make the assumption, as it must, that members of the panel will truthfully respond to any such invitation.
With the jury chosen there will then be a need to give specific warnings about paying no heed to any publicity about any individual in the case on the basis that it is a relevant, in the general manner of the warning given by the trial judge in Hughes.
A large number of potential jurors may identify themselves as having read publicity about persons associated with the case. Those potential jurors can be examined on their oath or affirmation and disclose what they know by written communication without disclosing it to the balance of the panel. It is possible of course that the empanelment process may be an exercise in futility if so many potential jurors identify themselves and have to be excused that there is an insufficient array.
If the trial is required to be adjourned on the basis that it there is an insufficient array that will underline the point made on behalf of the applicant. But I cannot safely predict that that will be so. It is also possible to increase the number of jurors in the panel, by retaining jurors not required for earlier trials, to avoid that situation.
I am mindful that the relevant witnesses are all local and also very mindful that the accused is in custody and will be held at a local custodial setting. Conducting the trial in Grafton will avoid significant travel by him.
As I earlier indicated, although it is not referred to in the evidence of the applicant, I am aware that the material annexed to the solicitor's affidavit no doubt is material that can be uncovered by primitive 'Internet search'. This is a matter specifically addressed in many recent cases, including Hughes, and falls within the ambit of warnings regularly given to jurors nowadays which Courts have to assume are heeded unless evidence emerges to the contrary.
[3]
Conclusion
Ultimately I have concluded that given the steps that can be taken, as set out above the applicant has not discharged the onus of establishing that the previous adverse media publicity in the local area would prevent him having a fair and unprejudiced trial. If it transpires that such a trial self-evidently cannot be conducted, for example by the progress of the empanelment process, then despite the risk of the delay I would reconsider the application that has been made. If there were not sufficient jurors available that did not know the accused, for example, then self-evidently the trial would have to go to another venue. As to the issue of potential delay I note that the Motion in this matter was not filed until well after the trial date was allocated. In fact filed on 1 July as I was organising a call-over for the sittings.
Thus, having regard to all the submissions and the material before the Court I am not persuaded at this point that I should order the change of venue. I decline to make the orders sought by the applicant
[4]
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Decision last updated: 08 November 2019