The Queen v Bradley

(a) the inability to obtain a fair trial as a result of pre-trial publicity in Shepparton; and

(b) the inadequacy of the arrangements for his custody during the trial.

3 Section 192 of the Criminal Procedure Act 2009 provides -

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.

4 The principles governing the relevant discretion were summarised in R v Vjestica:

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,[1] 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 Director of Public Prosecutions (Vic) 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.[2]

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[3] - 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.[4]

As Nettle J said in R v Iaria,[5] 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'.[6] 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.[7]

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.[8]

5 In the present case, the presumption that the trial should take place in Shepparton is fortified by the following considerations:

(a) the transfer of the trial to Melbourne would present difficulties to the family of the deceased in terms of their ongoing ability to attend and observe the trial and would cause them consequential inconvenience and stress;

(b) such transfer would cause substantial inconvenience to the majority of the prosecution witnesses who also reside in and around Shepparton;

(c) it will be logistically more difficult to organise the Shepparton-based witnesses to attend Melbourne rather than Shepparton; and

(d) there is a particular local public interest in demonstrating the adequacy of the justice system to the community which is concerned with a cold case of this kind.

6 Nevertheless, the fundamental principle is that the accused is entitled to a fair trial and that this concept requires the Court to consider whether there is a real risk that the trial will be unfair, or be seen to be unfair, if held in Shepparton.

7 The deceased was fifteen years old when she disappeared on 21 October 1983. Some 14 days later her body was found. She had died as the result of 19 stab wounds.

8 The Crown case relies in part on a number of circumstantial matters which are said to tend to confirm that the accused was implicated in the killing. At its core, however, it centres in material part upon evidence that, before the body was found, the accused admitted to his brother-in-law, Mr Gribble, that he killed the deceased and admitted other matters (such as the location of the body) not known by the public.

9 Mr Gribble did not speak to police for many years thereafter. When he did so, the accused made a series of recorded interviews with police in which he progressively admitted knowledge of the circumstances of the deceased's death.

10 Ultimately and after the committal hearing, the accused admitted direct participation in the events surrounding the killing but denied responsibility for it. The proposed Crown opening summarises the critical aspects of the accused's fourth record of interview as follows:

1. Early in the interview, the accused said that he was not saying he was not involved in the disappearance of the body and that sort of thing, then said he would start at the beginning. He proceeded, principally in the answers to questions 34-39, to give a detailed account about events he said surrounded the death of Michelle Buckingham which had him unconnected with the actual killing, which he claimed had been carried out alone by Rodney Butler, but involved in the movement and disposal of the body. He said he lived at Strayleaves Caravan Park but did not know Michelle was there. He said he was with Butler and Trevor Corrigan on a Saturday morning. He was driving them in his green HQ vehicle. They went to the Overlander Hotel at about 10 am and had a few beers. Butler was talking to Michelle Buckingham there. The accused was introduced to Buckingham for the first time at that hotel. He did not like her, thinking she was a bit stuck up. Whether she was there when they arrived or came in while they were there he could not say. A decision was made for them all to go to the Pine Lodge Hotel. He drove them to that location. They parked around the side or back area of the hotel. It was dark inside the hotel. He sat with Corrigan at the bar. Michelle and Rodney were all over the place inside the hotel. They weren't very happy with each other. At about 2 pm, Butler and Michelle were a fair distance away in the bar and were arguing. He saw them walk out the door. He kept drinking and talking with Corrigan. In about half to three-quarters of an hour, Butler came back inside the hotel and said they had to leave now. The accused walked to the car and saw Michelle slumped over in the back seat. She was not moving. She was dead. Butler yelled at them to hurry up. He was scared of Butler. He got in the driver's seat and Corrigan got in the front passenger seat. Butler got in the rear seat and said to go. He turned onto the Benalla Road and headed towards Benalla for a time before turning around at the direction of Butler and heading back towards Shepparton. He turned off a road that led towards Violet Town. He then stopped at the order of Butler. At some stage, the accused and Corrigan yelled at Butler, 'What have you done?..What a stupid thing. How could you do this?' Butler threatened them, saying, 'Well, we're all in trouble now...We all better stab her so if - well, if I go down for it, well, youse'll all go down for it.' He claimed that he was handed a fishing knife by Butler that had previously been in a tackle box in the back of the car. He was told to stab Michelle. He held the blade of the knife and with his body between Butler and Michelle in the back seat area, tapped Michelle on the stomach with his thumb, pretending to stab her, holding the knife so tightly with his fingers that he cut them all. He dropped the knife on the floor of the car. He did not know whether Corrigan had stabbed Michelle or not. He returned to the driver's seat while the other two carried Michelle's body down to the culvert at the side of the road. They returned to the car and he drove back to Shepparton. He dropped Corrigan and Butler off where they wanted to go. By now it was late and dark. He drove to the bush and parked near a river. He considered killing himself. He slept. When he woke, he went to the caravan park where his brother-in-law Norm Gribble lived. He told Gribble of his involvement in getting rid of the body of Michelle but denied telling him that he had killed someone. He might have said that he had seen someone killed. In fact he had not seen someone killed.[9]

11 In turn, the issues at trial are now materially more confined than they were even at the time of the accused's committal. Significantly, for the purposes of the present application, they are much more confined than they were during the course of the bulk of the media coverage relied on for the purposes of this application.

12 I have considered the material submitted to the Court evidencing extended coverage relating to the initial reportage of the deceased's death, the investigation of the deceased's death, the arrest of the accused and the committal.

13 The material comprises newspaper articles from both regional and Melbourne newspapers, television and radio coverage and social media coverage. It relates essentially to five aspects:

(a) events relating to the circumstances of the death as described in 1983;

(b) the revival of the cold case investigation in 2012 in which the Shepparton News played a significant part;

(c) the activities of the cold case unit of Victoria Police and, in particular, of former Detective Senior Sergeant Iddles;

14 Defence counsel summarises the material relied on as follows:

1. The main daily local newspaper in Shepparton is the Shepparton News. The disappearance of Michelle Buckingham was reported in October 1983 and the discovery of her remains and the ensuing police investigation were the subject of regular reporting in the Shepparton News in the days and weeks that followed.
2. The reports at that time included details of the last known movements of Michelle Buckingham, her family circumstances, her circle of friends, her employment, the location of her remains and the nature of the wounds she had sustained and the state of her remains upon their discovery.
3. It is clear that the case was a matter of considerable local interest at the time. In the report in the Shepparton News on 9 November 1983, it was stated that police hoped to, 'find the lead that will solve the murder that has shocked Shepparton'.
4. The Shepparton News also reported at the time on the effect of the death of Michelle Buckingham on her family. For example on 11 November 1983, the Shepparton News reported on the funeral of Michelle Buckingham and an interview that had been conducted with Elvira Buckingham, the mother of Michelle Buckingham. The report highlighted the plight of Elvira Buckingham and her family and appeared aimed at engendering community sympathy for them.
5. The police investigation into the death of Michelle Buckingham continued to be reported in the Shepparton News. In March 1984, the Shepparton News reported on the return of Homicide Squad detectives to Shepparton under the headline 'Death Case Re-Opens'.
6. In February 1985, a coronial inquest into the death of Michelle Buckingham was held in Tatura, near Shepparton. The inquest received front page coverage in the Shepparton News over the days it was held. The reporting included references to the statement of Gregory Gleadhill, in which Mr Gleadhill had claimed to be present at the time of the murder of Michelle Buckingham. The reporting also included references to the last known movements of Michelle Buckingham and the circumstances of her death.
7. On 20 December 1985, the Shepparton News reported that the State of Victoria had offered a $50,000.00 reward for 'information leading to the arrest of the person responsible for the murder of Shepparton teenager, Michelle Buckingham'.
8. On 7 March 1988, the Shepparton News reported that the television program, Crimestoppers would broadcast a re-enactment of facts known about the death of Michelle Buckingham in April 1984. The report noted that, 'The Shepparton community must be concerned the offender is still free and in this area'.
9. In August 2012 there was significant reporting of the decision by Victorian Police to re-open the investigation into the murder of Michelle Buckingham. It is understood that the reopening of the murder investigation was preceded by investigative reporting by Ms Tammie Mills, a journalist employed by the Shepparton News.
10. On 20 August 2012 ABC Radio in Shepparton broadcast a 10 minute interview with Ms Mills in which she described at length her investigation of the unsolved murder and advocacy for formal re-opening of the case. In that interview (20/08/2012 Tammie Mills interview with ABC Radio Shepparton on You Tube) she referred to her dealings with both Detective Senior Sergeant Ron Iddles and retired Detective Senior Sergeant Jim Fry who led the earlier investigation. In that interview Ms Mills described DSC Iddles as a 'formidable investigator' and stated that there 'is a small group of people still living in Shepparton who know exactly what happened to Michelle'.
11. Ms Mills was also the journalist named on a series of articles published in the Shepparton News in 2012 reporting the decision to re-open the investigation of Michelle Buckingham's murder. These articles made reference to the newly established Cold Case Unit, the investigation of Detective Senior Sergeant Ron Iddles and to the previous investigation by then retired DSC Fry who was also reported as saying that there were 'a small group of people' in Shepparton whom during the original investigation weren't 'telling us the truth' and his contention that there were people still living in Shepparton who 'know full well what happened to Michelle'.
12. To highlight the request for members of the public to come forward, details of the last known movements of Michelle Buckingham, her family circumstances, her friends, her employment, the location of her remains and the nature of her wounds were reported in detail. Reference was also made to the $50,000.00 reward which was still on offer. There was also coverage of the re-opening of the investigation in 2012 by the local Australian Broadcasting Commission station.
13. On 31 December 2012, the Shepparton News reported, 'In August, The News launched a comprehensive feature into the case and what happened to Michelle once again became the talk of the town - almost everyone who lived in Shepparton in the 1980's had a theory.'
14. On 31 December 2012, the Shepparton News reported with respect to its Facebook page, under the heading, 'Who Killed Michelle' 1560 engaged users. It further reported, 'Our series of stories on the 1983 brutal murder of Shepparton teenager Michelle Buckingham drew a lot of interest and this post on August 24 proves it. Fifty-six people liked the post and 13 shared it, but more importantly, we received dozens of comments from people about their memories of Michelle and those sending their condolences to her family'.
15. In November 2013, the Shepparton News reported that the police had important new leads into the case of Michelle Buckingham and that they were close to solving the case. Similar reports appeared in The Age and the Herald Sun newspapers, also widely available in the Shepparton area.
16. On 27 November 2013, Ms Mills reported in the Shepparton News that three men had been arrested in respect to the death of Michelle Buckingham.
17. On 30 November 2013, The Age published a story authored by Ms Mills and the reporter, John Silvester on the case. The focus of the report was the story of Mr Gleadhill's plight at being wrongly accused of murder. The story noted that Detective Senior Sergeant Iddles was, 'confident that we now know the names of the real killers'.
18. On 12 March 2014 it was reported in the Shepparton News that the accused had been arrested in Brisbane.
19. On 23 April 2014, the national television program, The 7.30 Report on ABC television broadcast a report on the case including the details of the re-opening of the investigation and the fact the accused had been arrested. The report contained a lengthy interview with Detective Senior Sergeant Ron Iddles and included reference to his meeting with a witness in the case who revealed important information to him (Norman Gribble - not named in the television report).
20. In November 2014 the committal hearing in this matter took place at the Shepparton Court. The 3 days of the hearing were extensively reported. Details of evidence given by the witnesses was published in the Shepparton News and transmitted on WIN News (Channel 9). Details of the family members who attended the committal hearing were reported.
21. Links to the stories run by the Shepparton News remain available on the Shepparton News website and on the video sharing platform You Tube.[10]

15 It is conceded on behalf of the accused that none of the material relied on is materially inaccurate or unfairly prejudicial in the sense that it states matters directly relating to the accused which have no foundation.

16 Nevertheless, it is submitted that the effect of the publicity to which the Shepparton community has been exposed is such that it is probable that any jury empanelled at Shepparton:

(a) will be influenced by community feeling calling for the righting of a long-standing injustice; and

(b) will have some preconceptions concerning the case.

17 More particularly, it is submitted that the effect of the media reporting in the Shepparton area has been to:

(a) engender widespread support and sympathy in the Shepparton area for the family and friends of Michelle Buckingham;

(b) encourage the belief in the Shepparton area that Detective Senior Sergeant Iddles is a highly distinguished and experienced police investigator who is publically confident that the accused is guilty of the offence charged;

(c) reflect credit in the Shepparton area on the intrepid reporting of local reporter Ms Tammy Mills and her urging that the case concerning Michelle Buckingham be re-opened by the police;

(d) enflame disquiet in the Shepparton area that the death of Michelle Buckingham should have remained unsolved for such a long time;

(e) widely disseminate in the Shepparton area details of the evidence to be given in the case;

(f) reflect the fact that in the Shepparton area, the death of Michelle Buckingham is a widespread topic of discussion and speculation.

18 I accept that the circumstances of the deceased's death will have engendered widespread sympathy and support for the family and friends of the deceased. In consequence, it will be necessary to exclude from the jury persons who know the family and friends of the deceased.

19 Nevertheless, subject to adoption of this course, I am not persuaded that the potential for such sympathy at trial will derive so much from pre-trial publicity as from the underlying facts of the case. Whether or not the Crown's or the accused's version of events is ultimately preferred by the jury, sympathy for the deceased's family and friends will necessarily inure simply from the underlying and uncontested facts that a 15 year old girl was picked up in her home town and brutally stabbed to death. In consequence, the jury will need to be instructed to decide the case on the evidence and not on the basis of sympathy or emotion.

20 I do not accept that the need for such a direction would be materially less in Melbourne or that the case is so different from other homicide cases that the capacity of a Shepparton jury to abide by proper instructions can sensibly be doubted.

21 Next, I accept that both the Shepparton and statewide press coverage of the cold case investigation was personalised in the sense that it emphasised the roles of both the Shepparton News reporter Ms Mills and Mr Iddles. I doubt that Mr Iddles's reputation is significantly less well known in Melbourne than in Shepparton. Indeed, The Age articles to which reference is made by the accused might be thought to support the contrary view. Nevertheless, I accept that the real question is whether the community of Shepparton has been adversely impacted by the combined effect of the local press coverage and the statewide press coverage. It is relevant to observe that the reportage of the cold case investigation essentially pointed to the need to resolve the puzzle of the underlying facts connected with the death of the deceased. As such, the purpose of the cold case investigation and associated publicity was not itself inimical to the conduct of a proper trial subsequently.

22 The jury will now be confronted with a case which has in effect crystallised after the cold case investigation by reason of the fourth record of interview given by the accused. As stated above, they will need to be properly instructed that they must decide the case at the trial on the evidence and on the evidence alone. I am not persuaded that the press coverage relating to the cold case investigation is such that a Shepparton jury would be materially influenced by it or would be unable to follow appropriate directions.

23 The same considerations apply to the propositions that the media reporting relied on has enflamed disquiet in the Shepparton area because the death of the deceased has remained unsolved for such a long time, and that the death of the deceased is a widespread topic of discussion and speculation in the area.

24 There may well be a widespread desire within the Shepparton area to properly investigate the cause of the deceased's death and resolve the question of criminal responsibility for it. Once again, however, these matters are not in themselves incompatible with the conduct of a fair trial in accordance with law. In one sense, they simply tend to reinforce the significance of the trial process and the jury's role in it.

25 Lastly, in this context, I am not persuaded that there has been a dissemination of evidence which will preclude a fair trial for the following reasons:

(a) dissemination of evidence commenced in 1983 and has been a protracted and somewhat patchy process;

(b) much of the evidence which has been disseminated goes to contextual circumstances which are now not controversial;

(c) the complexion of the real evidentiary issues in the case has materially changed as a result of the fourth record of interview and the statements made in that record of interview have not been the subject of dissemination in the manner complained of;

(d) it is not suggested that the dissemination of evidence has been materially inaccurate or misleading; and

(e) the jury can and will be instructed of the necessity to decide the case on the evidence which they hear and that necessity will be reinforced by the whole trial process, including directions as to their role, the need to disregard extraneous information, the onus of proof, the standard of proof, the evidence in the case, the issues in the case and the contentions of both the Crown and the defence as to those issues.

26 It follows that I am not persuaded by the matters raised on behalf of the accused either individually or taken together that it is necessary to change the trial venue. As will be apparent from what I have already said, my conclusions are premised in part on acceptance of the proposition that juries can fulfil the independent role required of them despite some media publicity prior to the trial. Whether that publicity gives rise to an unacceptable risk of an unfair trial will always be a question of fact and degree.

27 In the present case, such risks as may be inherent in the pre-trial publicity can, in my view, be managed by the trial process. The principal safeguards are the excusing of potential jurors who may have difficulty deciding the case impartially; warnings and directions from the trial judge to the jury of the need to decide the case strictly on the evidence and not upon considerations of sympathy or emotion; and the effect of participation in the trial itself including the definition of the issue they must decide.

28 In Dupas v The Queen,[11] the High Court repeated the more detailed identification of the relevant procedural safeguards undertaken by Cummins J in that case at first instance.[12]

Whilst the criminal justice system assumes the efficacy of juries, that 'does not involve the assumption that their decisionmaking is unaffected by matters of possible prejudice.'[13] In Glennon, Mason CJ and Toohey J recognised that '[t]he possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial.'[14] What, however, is vital to the criminal justice system is the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations. That capacity is critical to ensuring that criminal proceedings are fair to an accused.[15]

30 These observations were made in the context of an application for a permanent stay of proceedings and not an application for change of venue. Nevertheless, they endorse the procedural mechanisms which will be adopted in this case and which support the conclusion that a fair trial can be had, and be seen to be had, at Shepparton.

31 In the present case, the prosecution submitted that there are a number of relatively recent instances in this State of cases in which, despite the refusal of a change of venue application, a jury has nevertheless brought in a verdict of not guilty. These cases and the general experience of the Court fortify my view that this is a case in which the jury can be expected to put aside any preconceptions they may have about the matter.

32 I am not persuaded in the present case either that the matters which have been disseminated by media publicity are in themselves materially prejudicial to the accused or that the jury cannot be properly and effectively directed to ensure that they base their verdict upon the evidence alone and that a fair trial is had.

33 The second basis of the application arises out of the circumstances in which the accused was held in the police cells at Shepparton during the committal period between 19-21 November 2014. During this period, he was incarcerated in three different police cells. The bedding provided was of a very basic standard placed directly on the cement slab of the cell. The accused suffers from chronic back pain as a result of a long history of working as a shearer. The sleeping conditions caused him to experience more severe pain than normal and made sleep difficult. Fluorescent tube lighting was kept on in the cell block all night and the areas in which he was required to sleep remained highly lit.

34 Intoxicated people were brought into the cell block throughout the night which sometimes resulted in the police moving the accused from cell to cell. The noise made by other prisoners interrupted the accused's sleep.

35 There was little privacy provided in respect of toilet and washing facilities. The accused was unable to obtain adequate shaving equipment, toothpaste or toiletries. He was abused and shouted at by other prisoners. He was denied access to his written brief and was denied access to any paper, pens, pencils or reading matter while he remained in the cells. The food was not fresh.

1. I have experienced broken sleep, higher levels of chronic pain than usual, distress and humiliation while I was held at the Shepparton cells. I believe this affected by ability to concentrate on my committal hearing. I felt extremely stressed and tired and noticed my mind wandering during my committal hearing. I am very anxious about how I will withstand these conditions during my trial.
2. I have lived in tough conditions throughout my life and I am used to them. I don't think I am overly sensitive. I felt unnecessarily humiliated by the denial of basic toiletries, the inability to wash myself properly or to have some privacy while doing this.
3. I was denied access to my brief of evidence and to other reading materials. I don't believe this is compatible with my right to a fair trial.
4. I feel very strongly that I've got to remain alert and be able to follow my trial and give instructions to my lawyers. I don't believe that I can do this and withstand these conditions for the duration of my trial.
5. I don't believe that I am being given proper access to justice for the reasons I've outlined above and I would like the court to consider ordering that my trial be held in Melbourne.[16]

37 The prosecutor accepts that the conditions described are not adequate for the proper accommodation of the accused during the trial. I agree and I would add that the Shepparton Court is one of those in which the accused is placed in a dock centrally located within the courtroom during his trial. The effect of this is to expose him to close scrutiny by the jury and in my view this set up heightens the relevance of a number of the concerns expressed by the accused.

38 In response to the matters raised by the accused, an affidavit of Detective Senior Constable Simon Hunt has been sworn deposing to arrangements proposed for the accommodation of the accused during the trial.

1. On 22 May 2015, I spoke with the Officer-in-Charge of the Shepparton Police Station, Senior Sergeant Ross BRITTAIN. Sen Sgt BRITTAIN was provided with a copy of the Accused's affidavit and asked to comment on the conditions at which BRADLEY would be housed in the Shepparton Police cells. Sen Sgt BRITTAIN advised me of the following matters that may be of relevance:
   • There are three male prisoner cells, an exercise yard and an external area with access to fresh air;
   • 'Protected custody' prisoners will have their own cell;
   • There is one female cell and exercise yard which can be utilised for 'protected custody' prisoners when there are no female prisoners;
   • The gazetted strength for prisoners is nine;
   • The average prisoner numbers are four to five;
   • Prisoners are not granted access to razors, however electric shavers have been utilised previously;
   • Prisoners are provided with cushions and suicide blanket for sleeping;
   • Prisoners are provided with soap, a clean towel, toothbrush and toothpaste each day;
   • The cell lights are turned down at night;
   • The prisoner will have access to his brief of evidence;
   • Prisoners are provided with three meals a day;
   • A doctor will attend the cells, if required.
2. The Victoria Police Prisoner Management Unit is responsible for the placement of the Accused during this trial period. On 22 May 2015, I liaised with the Prisoner Management Unit and was informed that the Accused would be transported to Shepparton each Monday morning, stay in Shepparton Police cells during the week and be returned to his respective prison on Friday afternoon.
3. I further spoke to both the Victoria Police Prisoner Management Unit and A/Sgt Andrew Pritchard of the Shepparton Police Station on 26 May 2015. The advice I received is that:
   • The Accused would be able to exclusively occupy the female cell and yard
   • As a protected prisoner, he would not be sharing the cell with anyone
   • Any female prisoners would be held in the separate holding cell during the day, and would be taken to other police stations each evening. This would mean that the Accused should not need to be taken out of his cell as described in his affidavit at paragraph 11.[17]

39 It is apparent that the arrangements proposed materially address a large number of the accused's concerns. If he is provided with a separate cell in the manner proposed and otherwise accommodated as proposed I am not persuaded that the standard of accommodation will be such that it is necessary to change the venue of the trial.

40 Nevertheless, it will be open to the accused to re-agitate his concerns if in the course of the trial his conditions of accommodation are in fact inadequate.

41 The Court will also have the power to itself inspect the cells.

42 As things stand at present, however, I am not persuaded that the trial venue should be changed from Shepparton to Melbourne. The application for change of venue is refused.

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

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

[3] Director of Public Prosecutions (Vic) v Bennett [2004] VSC 148; (2004) 10 VR 355 [10] and the cases there cited; Cording v Trembath [1921] VicLawRp 27; [1921] VLR 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'.

[4] Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, 47; [1989] HCA 46; 41 A Crim R 307, 324 (Brennan J), cited by Nettle J in R v Iaria [2004] VSC 96; (2004) 9 VR 425, 430; [2004] VSC 96; 145 A Crim R 74, 79 [18]; R v Georgiou [2002] QCA 206; (2002) 131 A Crim R 150, 154 [23].

[5] R v Iaria [2004] VSC 96; (2004) 9 VR 425; 145 A Crim R 74, 77 [10] citing R v Yanner [1998] 2 Qd R 208, 209; (1997) 98 A Crim R 51, 52 (Pincus JA).

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

[7] R v Holden [1833] EngR 653; (1833) 110 ER 819; 5 B & Ad 347; R v Boughton [1895] 2 IR 386.

[8] R v Vjestica [2008] VSCA 47; (2008) 182 A Crim R 350, 352-3 [2]-[5] (Maxwell P) (citations in original) ('Vjestica').

[9] Summary of Prosecution Opening dated 21 April 2015, [48].

[10] Applicant's Outline of Submissions on Change of Venue dated 20 May 2015, [9]-[29].

[11] [2010] HCA 20; (2010) 241 CLR 237.

[13] Gilbert v The Queen (2000) 201 CLR 414 at 420 [13] (Gleeson CJ, Gummow J).

[14] [1992] HCA 16; (1992) 173 CLR 592, 603. See also Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94, 99; [1989] HCA 28.

[15] Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237, 248-9 [29].

[16] Affidavit of Steven Bradley sworn 1 May 2015, [18]-[22].

[17] Affidavit of Simon Hunt sworn 26 May 2015, [9]-[11].