The Queen v Allan

2 The accused has been charged with the murder of Russell Craig Berry in Wangaratta on 19 May 2017.

3 The trial of the accused is to commence on 30 January 2019 and, subject to this application, is listed in the Wangaratta sittings of this Court. The accused contends that he cannot receive a fair trial in Wangaratta and that his trial should instead be heard in Melbourne. The twin bases for that argument are: first, localised prejudicial pre-trial publicity and, second, the inadequacy of the custodial arrangements for the duration of the trial.

4 Section 192 of the Act is in the following terms:

192 Power to change place of trial

If a court considers that -

(a) a fair trial in a criminal proceeding cannot otherwise be had; or

(b) for any other reason it is appropriate to do so -

the court may order that the trial be held at any other place that the court considers appropriate.

5 The legal principles relating to this provision are well settled. In R v Iaria and Panozzo[1] Nettle J quoted with approval the formulation by Pincus JA in R v Yanner:[2]

... the proper rule to be applied is that each case in which an application is made for a change of venue falls to be considered on its own merits and not with any preconceptions, save that a trial should ordinarily proceed in the district in which the offence charged is alleged to have been committed 'removal being warranted where sufficient cause is shown'.[3]

6 His Honour then identified the considerations relevant to the exercise of the discretion. They include whether a change of venue may engender cost, inconvenience and delay, or reverse the presumption that the trial should be heard in the locality where the offence allegedly occurred. Further, it must be ensured that a fair trial is both had and seen to be had.[4]

[2] Ordinarily, a trial will proceed in the district in which the offence charged is alleged to have been committed. As Lush J explained in Re Ratten,[6] this course is adopted -

so that justice will be seen to be done by those who are interested in seeing it and so that no feeling can arise that justice is done in a distant place and community.

More recently, in DPP v Bennett, Cummins J expressed the view that there were

powerful reasons of public policy why the venue of offence should be the venue of trial. The local community is the community in which the alleged crime took place; it is concerned to have the law administered within it; and to remove a circuit trial to Melbourne can lead the vacated community to feel disenfranchised, marginalised or alienated. All this is common experience. This basal requirement should not be watered down by mere administrative convenience. This is the Supreme Court of Victoria, not the Supreme Court of Melbourne.[7]

[3] But the presumption in favour of a local trial is a rule of practice, not a rule of law. However powerful the considerations favouring a local trial may be, they must give way to the paramount requirement that the defendant have a fair trial. The venue of the trial must be changed if there is a real risk that a trial held locally will not be fair - or will not be seen to be fair[8] - and that risk cannot be eliminated

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.[9]

[4] As Nettle J said in Iaria and Panozzo,[10] each application for change of venue falls to be considered on its own merits, without preconceptions. There is no necessity for an applicant to show exceptional circumstances. Nor is the applicant to be regarded as bearing a 'heavy onus'.[11] It is both necessary and sufficient for the applicant to show that the change of venue is necessary for the purpose of securing a fair and impartial trial.[12]

[5] But the test of necessity is, in practice, a stringent one. As discussed below, our system of jury trial has its own built-in protections against unfairness resulting from (for example) prejudicial pre-trial publicity. Those safeguards are: the excusing of any potential juror who may have difficulty deciding the case impartially; warnings and directions from the trial judge to the jury about deciding the case strictly on the evidence; and the discipline of participation in the trial itself. Even where a risk of prejudice is identified, the applicant for change of venue will often be hard pressed to establish that these safeguards will not be sufficient to eliminate the risk.[13]

8 On the evening of 19 May 2017 the accused and his cousin, Chris Meaney ('Meaney') went together to the Pinsent Hotel in Reid Street, Wangaratta. At about the same time the deceased and his friend, Nino Porpora ('Porpora') went to the home of Paul Kerr ('Kerr') in Wills Street, Wangaratta, to watch the football. While doing so they consumed beer. At the conclusion of the game Porpora needed to walk home to get medication. He lived in Higgins Street. By coincidence, so did the accused. The deceased and Kerr accompanied Porpora.

9 En route, the deceased and Kerr stopped at a unit in White Street to visit a friend, James Ferguson ('Ferguson') while Porpora continued to his home. Porpora then returned to White Street. He met the deceased on the nature strip outside Ferguson's unit. Kerr, who was still by the front door of that unit, yelled out 'Boo Boo', seemingly a nickname for Porpora.

10 At this time the accused and Meaney were also in White Street. Meaney approached the deceased and said words to the effect of 'what's boo boo, what does it mean ... I'll give you a boo boo'.

11 Meaney then swung at the deceased with a bag he was carrying. It struck the deceased once to the side of the head and the deceased fell to the grass on the nature strip. Kerr approached and swung at Meaney with two machetes he had previously concealed. The deceased stood and approached the accused, by then in the middle of the road, and said words to the effect of, 'what was that for?'

12 The accused punched the deceased to the face. The deceased fell onto his back and did not move. The accused then kicked the deceased to the upper body and head. He also stomped on the deceased's head.

13 The accused then approached Meaney and Kerr. Kerr swung machetes at both Meaney and the accused. Meaney was struck to the elbow, fracturing it. The accused was struck to the head, left leg and chest and suffered incised injuries. Kerr was disarmed and ran away.

14 Porpora, who had left the scene, returned. He was rendered unconscious by Meaney and the accused.

15 The accused then returned to the deceased and, more than once, stomped on the front of his head and also kicked him to the ribs.

16 After the attendance of ambulance and police officers, the deceased was transported to the Wangaratta Base Hospital before being transferred to the Royal Melbourne Hospital. The deceased died on 25 May 2017.

17 The gravamen of the prosecution case is that the accused stomped on the face of the deceased as he lay prone on the ground, thereby causing the death of the deceased, and that he did so with the intention to cause the deceased really serious injury.

18 The accused's defence is that at all times he acted in self-defence. He argues that he was under attack from the deceased and others when he punched the deceased to the face. It is a live issue as to whether the deceased moved again after that punch (and having been struck another time by Meaney).

19 Both Meaney and Kerr are prosecution witnesses. The accused disputes their accounts and raises issues as to their credibility.

20 Each of Meaney and Kerr have pleaded guilty to charges arising from the incident.

21 On 7 September 2017 Meaney was sentenced in the Wangaratta Magistrates' Court to 18 months gaol, with a minimum term of 12 months, for offences of intentionally causing injury and assault with a weapon.

22 On 19 March 2018 Kerr was sentenced in the Wangaratta Magistrates' Court to a three year community corrections order, with various conditions, for offences of intentionally causing injury and affray.

23 I have received and considered the affidavit of Charles Nikakis sworn 7 September 2018 upon which the accused relies. Exhibited to that affidavit are some 16 newspaper articles, drawn from either The Border Mail or the Wangaratta Chronicle, concerning the 19 May 2017 incident and the legal proceedings arising from it. Those articles bear dates ranging from 22 May 2017 to 13 April 2018. They have been printed from online versions of the two newspapers. Mr Nikakis states that those versions can still be viewed online and that, further, both newspapers have social media pages that also carry the articles.

24 The written outline of the accused additionally states that the website of the Wangaratta Chronicle has an internet thread dedicated to the progress of the case. In oral argument counsel for the accused said that this and the Facebook account of The Border Mail, which sends updates to its followers, has several effects. First, it did not matter that the media reporting was not 'saturated' because all the articles were always present and available. Stumbling across one article would pique the interest of the reader who could then, easily, click on each of the others. Second, this was far more likely to occur with local potential jurors who were users of those websites than it was for people who did not habitually read those regional publications. That is because the affray in which the fatal incident occurred is of particular interest to the local community.

25 The accused argues that the exhibited articles 'undermine' his defence and, therefore, any potential juror who has read the articles would already be unfairly prejudiced against him. This is said to occur because the articles report:

(a) repeated police assertions that the accused commenced kicking and stomping on the deceased;

(b) that Meaney and the accused were the aggressors;

(c) Meaney's prior history for violence, including with weapons and stalking;

(d) that the accused has previously been with Meaney when Meaney committed acts of violence;

(e) the kind and caring nature of the deceased - a man who 'wouldn't harm anyone'; and

(f) that the accused killed the deceased, Kerr's friend, in response to Kerr producing machetes.

26 The accused further argues that as the jury will need to assess the roles of both Meaney and Kerr in the incident, the publicity relating to each of them creates prejudice for the accused. The accused's argument that Meaney was responsible for kicking and stomping the accused is prejudiced by the media's reporting of the resolution of Meaney's criminal charges, particularly his denial of the acts causing the deceased's death. And, vis-à-vis Kerr, the reporting of his non-custodial sentence, the police view that Kerr acted in 'excessive self-defence' and the comment of the sentencing Magistrate that 'there is some consistency with his story', is likely to predispose potential jurors to the view that Kerr is a credible, honest witness.

27 In short, the accused argues that the localised pre-trial publicity is such that the accused cannot receive a fair trial in Wangaratta. And, it was submitted that during the trial, the temptation for a juror to go searching online would be far greater for habitués of the local newspaper websites, despite any directions and warnings to the contrary.

28 I have also received and considered the affidavits of Anna Kirishian and Mara Rosemary Enright, both sworn 12 September 2018 and upon which the Crown relies.

29 Detective Senior Constable Kirishian deposes that she has made enquiries with an officer of the Victoria Police Media Unit about the media coverage of the matter. Those enquiries revealed that:

(a) Victoria Police have made a total of four media releases in the matter;

(b) Victoria Police have received 20 enquiries from media outlets about the matter;

(c) the media coverage is , relatively, 'at the lower end of the scale' and not greater than with respect to previous murder allegations in country locations; and

(d) the incident was reported Victoria-wide, beyond The Border Mail and the Wangaratta Chronicle.

30 Constable Kirishian's affidavit contains a table of some 19 media articles, all of which are still said to be available online, each drawn from media sources other than the two local newspapers and first published in the period 20 May 2017 to 26 May 2017. At the hearing, counsel for the accused argued that the publication timeframe of the 19 articles showed that since the initial reporting of the incident itself, it is only the local newspapers who have been interested enough in court proceedings to continue to report the matter.

31 The affidavit of Ms Enright deposes that she caused enquires to be made as to when the last printed news stories relating to the matter were published. The last article appeared on 16 April 2018, being immediately after the accused was committed to stand trial. Exhibited to the affidavit is a 'Media Portal Report' dated 12 September 2018, sourced from the Victoria Police Media Unit, plus some 9 printed articles from the two local newspapers spanning the period 26 September 2017 to 16 April 2018. There is some overlap between those articles and the articles exhibited by the affidavit of Mr Nikakis. Also exhibited to the affidavit of Ms Enright is a single article dated 12 September 2018 concerning a charge of offensive conduct brought against Kerr arising from an incident alleged to have occurred at the acused's committal hearing in April 2018 in which Kerr is said to have exposed himself outside the Wangaratta Court. That article makes but passing reference to the accused.

32 The Crown argues that there is nothing so unusual or prejudicial about the pre-trial publicity that the accused cannot receive a fair trial in Wangaratta. The Crown points to:

(a) the passage of time between the publications and the trial date;

(b) the brevity and accuracy of the media reporting;

(c) the substance of that reporting, being the circumstances of the alleged offending, Meaney's background and accounts of court proceedings; and

(d) the power of the trial judge to give adequate warning and direction to the jury.

33 During the committal hearing, the accused was kept in custody overnight at the Wangaratta police station. In his written outline on this application, counsel for the accused stated that the custodial conditions during the committal hearing limited the accused's ability to participate in conferences with his legal team. Counsel argued that those conditions are inappropriate for and oppressive to someone on trial for allegations as serious as those made against the accused. Consequently, if the accused is again kept in custody at the police station during his trial, that would, in and of itself, render his trial unfair.

34 In her affidavit, Ms Enright deposes that she has contacted the Registrar of the Wangaratta Court to ascertain the planned custodial arrangements for the accused during his trial. The accused will be held in the cells at the Wangaratta Court and not in the Wangaratta police station. Those cells were refurbished about seven years ago. They are temperature controlled and allow for the fitting of mattresses and access to bathroom facilities. While the cells are 'non-contact', there is a private space in which the accused and his legal representatives will be able to confer.

35 In its written outline the Crown argued that the proposed accommodation of the accused at the Wangaratta Court cells rather than those at the Wangaratta police station adequately addresses the issues raised by the accused. The Crown further noted that the Court's cells were, on inspection by Lasry J in 2017, found to be satisfactory for an accused on trial for murder.[14]

36 At the hearing of this matter counsel for the accused accepted that the proposed custodial arrangements delineated in the affidavit of Ms Enright were acceptable from the point of view of ensuring the accused was able to appropriately participate in his trial.

37 The affidavits relied upon by the Crown state that a change in the venue of the trial from Wangaratta to Melbourne would come at significant cost and inconvenience.

38 There are 73 listed witnesses in the trial, of which at least 50[15] are based in the Wangaratta area or closer to Wangaratta than Melbourne. The distance between Wangaratta and Melbourne is about 251 kilometres. Travel time by car is approximately 3 hours.

39 If the trial was in Melbourne, the police stations in each of Wangaratta, Benalla and Beechworth would encounter significant difficulties in police resourcing due to the number of police officers from those stations that would be required to travel to Melbourne to give evidence. The number of uniformed members of those stations listed as witnesses amounts to 25%, 10% and 40%, respectively, of each station's total strength.

40 A number of civilian witnesses would also experience particular hardship in being required to travel to Melbourne. Their issues arise variously from circumstances of socioeconomic disadvantage, a lack of driver's licences and the need to provide care to other family members.

41 In oral argument, counsel for the accused stated that most of the witnesses would not be called to give evidence in the trial, or at least would not be required by the defence. In particular, very few of the police witnesses were relevant - and therefore there would be little impact upon resourcing in regional police stations - and most of the expert witnesses were already Melbourne based. Counsel submitted that, in any event, regional based witnesses could evidence via video link.

42 Counsel for the Crown submitted that the Crown would prefer not to have to call large numbers of witnesses via video link. And, the particular difficulties experienced by civilian witnesses in this case would already make it difficult enough to get them physically to the court house in Wangaratta, let alone Melbourne. It was likely to be hard to have them engage with the audio-visual technology. They are eye witnesses and it was proper to allow them the best opportunity to give their evidence.

43 The affidavit of Ms Enright deposes that information obtained from the Victorian Electoral Commission shows that, as at 7 September 2018, there were 32,915 non-exempt electors available to form a jury pool. Summonses would be sent to 3,500 of those non-exempt electors. Of those summonsed, it would be expected that a number will have valid excuses for not sitting on the jury.

44 The Crown made the point that the number of people from whom the potential jury would be drawn is large and it could not be assumed that they would all have read the local newspapers, let alone be regular users of those newspapers' websites.

45 In my view, no sufficient cause has been shown to warrant a change in venue of the trial. Such a change is not necessary to ensure either the fact or perception of a fair and impartial trial.

46 There is nothing about the pre-trial publicity in this matter that renders it unusual. It is of the level expected with respect to the reporting of an incident in which a street fight involving several people led to a death. It could not be described as 'toxic' or 'hostile'. It is not inflammatory. And, it is not inaccurate. That it reports certain matters as, expressly, from the police point of view does not make it so. And, if any potential juror remembered that friends of the deceased described him as being 'caring' or 'harmless', that would be no more likely to engender sympathy for the deceased than the hearing of the evidence in a court room describing the circumstances in which he died.

47 When pressed as to inaccuracies in the reporting, or the reporting of matters without foundation in the Crown evidence, counsel for the accused referred to the article of 13 April 2013 published at 4.30pm on the website of The Border Mail titled 'Alleged killer denies he is guilty of Russell Berry's murder'. The first sentence of that article reads 'Multiple severe blows to the head, combined with a high level of alcohol in his system, led to the death of Wangaratta's Russell Berry'. Counsel submitted that the word 'multiple' was inaccurate. But, the article goes on to report the committal evidence of Dr Young who said that there were 'at least two, and possibly more, "severe or extreme" blows to the face'.

48 Without pre-empting the jury's assessment of Dr Young's opinion, it follows that the use of the word 'multiple' in the context of the article was not inaccurate. Nor does it create a tone or atmosphere of prejudice to the accused.

49 Counsel also referred to the reporting of potentially inadmissible evidence, such as the use of capsicum spray on the accused at the time of his arrest. Admissibility issues are yet to be determined, but a fleeting reference to the circumstances of the accused's arrest is insufficient to cause such prejudice to him that he cannot have a fair trial in Wangaratta. Similarly, the fleeting reference to the comment of the Magistrate who sentenced Kerr, that his story had some 'consistency', will - even if remembered, or found - be of little moment given that Kerr's credit will almost certainly come under sustained attack by competent counsel with objective material to hand. For example, Kerr initially denied ever being in possession of the machetes.

50 Nor could the publicity be described as 'saturated'. The timing of the publication of the articles are concentrated around the incident itself and the subsequent court hearings. The last new article was published on 16 April 2018. The trial is listed in January 2019, some nine months later. That the articles and an 'internet thread' are available online and that one of the publications has Facebook followers are not issues peculiar to the Wangaratta area. Those online articles are available not just to those in that locality, but to potential jurors Victoria-wide.

51 It must be assumed that jurors will, according to their oaths and the directions they receive, fairly and impartially try the matter on the evidence heard in the trial. Any prior tentative opinions, formed upon pre-trial publicity or otherwise, are assumed to yield to the path of the trial process. And this matter is absent an unusual factor, such as the unique circumstances of a retrial[16] or the fact of a change of plea.[17]

52 As the High Court of Australia stated in Jago v District Court (NSW):[18]

Obstacles in the way of a fair trial are often encountered in administering criminal justice. Adverse publicity in the reporting of notorious crimes, adverse revelations in a public enquiry, absence of competent representation or the death or unavailability of a witness, may present obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed. Unfairness occasioned by circumstances outside the court's control does not make the trial a source of unfairness. 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.[19]

53 Similarly, it must be assumed that jurors will follow the direction not to conduct internet research. The temptation to click on links of even a favourite, local newspaper website or Facebook page is amenable to direction.

54 I accept the evidence that, should there be a change of venue for the trial, the cost and inconvenience to particularly civilian witnesses would be significant. That said, if I were of the view that the pre-trial publicity was such as to render a trial in Wangaratta unfair, this alone would be an insufficient basis for the trial to remain in that locality.

55 I am satisfied that the custodial arrangements proposed for the accused for the duration of his trial are satisfactory. The Wangaratta cells meet the list of factors identified by Lasry J in Cardamone[20] as minimum requirements. Any further issues with custodial arrangements can be agitated as they arise and the Court will have the power to inspect the accused's cells should it see fit to do so.

56 The application to change the venue of the trial from Wangaratta to Melbourne is refused.

[1] [2004] VSC 96 ('Iaria'). This case concerned the then s 359 of the Crimes Act 1958 but there is no material difference in the statutory formulation. Other decisions of this Court with respect to s 192 of the Act apply the Iaria test. See, eg, R v Bradley [2015] VSC 257, R v Cardamone [2017] VSC 225 and R v Hague [2017] VSC 716.

[3] Iaria [2004] VSC 96, [10].

[5] [2008] VSCA 47, ('Vjestica').

[6] Re Ratten (Unreported, Supreme Court of Victoria, Lush J, 4 August 1970).

[7] Director of Public Prosecutions (Vic) v Bennett [2004] VSC 148; (2004) 10 VR 355, [6].

[8] Ibid [10] and the cases there cited; Cording v Trembath [1921] VL 163, 166-167 (Cussen J): to ensure that not only would a fair trial be had in fact 'but that it should be had in such circumstances that all reasonable men would so admit'.

[9] Jago v District Court (NSW) (1989) 169 CLR 23, 47 cited by Nettle J in Iaria [2004] VSC 96; (2004) 9 VR 425, 430; R v Georgiou [2002] QCA 206; (2002) 131 A Crim R 150, 154 [23].

[10] Iaria [2004] VSC 96; (2004) 9 VR 425, 430 citing Yanner [1988] 2 Qd R 208, 209 (Pincus JA).

[11] Cf R v Cattell [1968] 1 NSWR 156.

[12] R v Holden [1833] EngR 653; (1833) 110 ER 819; R v Boughton [1859] 2 IR 386.

[13] Vjestica [2008] VSCA 47, [2]-[5] (citations in original).

[14] R v Cardamone [2017] VSC 225, [37] ('Cardamone').

[15] Three witnesses are covert operatives and their base is undisclosed.

[16] See, eg, Iaria [2004] VSC 96.

[17] See, eg, R v Pain [2016] VSC 634 which concerned reporting of a prior plea of guilty in the Bendigo area.

[18] [1989] HCA 46; (1989) 168 CLR 23.

[20] Cardamone [2017] VSC 225, [35].