The Queen v Cardamone [2017] VSC 225

2 On 8 and 9 March 2017 a committal hearing was held in the Magistrates Court at Wangaratta at the completion of which the accused was committed for trial in this Court, sitting at Wangaratta, on the charge of having murdered the deceased Ms Karen Chetcuti on 12 January 2016.

3 On 17 March 2017, a post-committal directions hearing was held in this Court before me and I fixed the trial date for 31 July 2017. I was informed that the accused, who is represented by Mr Tehan QC, wished to apply for an order changing the venue of the trial from Wangaratta to Melbourne pursuant to s 192 of the Criminal Procedure Act 2009 which provides:

(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 hearing of the application proceeded before me on Thursday 6 April 2017. On 10 April 2017, with my Associate and Tipstaff, I visited and inspected the custody facilities at the Wangaratta Police Station.

5 On 19 January 2016, the accused man was charged by police with the murder of Ms Karen Chetcuti. As I have mentioned that killing is alleged to have occurred on or about 12 January 2016. Ms Chetcuti was from Whorouly a town located some distance south east of Wangaratta toward Myrtleford.

6 The allegation is that the accused caused the deceased's death through the application of blunt force trauma having previously administered her with sedatives or other substances. It is then alleged the accused burnt the deceased alive.

7 At the time of the hearing of this application no Summary of Prosecution Opening address or Defence Response had been filed but, as I understand it, the issue at trial will concern the identity of the person who killed the deceased. As Mr Tehan put it on behalf of the accused:

If one accepts the proposition that Mr Cardamone's version of events contained within his last interview to police is the defence case, then the defence case would be that he alone was not involved in killing the deceased and, further, that he himself was not the killer of the deceased.

HIS HONOUR: So others were involved?

MR TEHAN: Another was involved.

8 In applications of this kind the legal principles are reasonably well settled. In R v Thomas[1] I summarised them as follows:

In 2004, Nettle J (as he then was) analysed the history and the principles which apply to such an application in R v Iaria & Panozzo.[2] After reviewing the authorities, his Honour said:[3]

I take the law now to be as I have endeavoured to set it out earlier in this ruling and, as it seems to me, it is precisely encapsulated in the formulation of Pincus JA in Yanner[4] that:

"...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'."

A judge faced with such an application must exercise a discretion according the particular circumstances of the case.

9 In R v Vjestica,[5] Maxwell P reviewed some of the authorities on this topic. In referring to the comments of Lush J in Re Ratten,[6] some emphasis was given to the point I made earlier about why matters should be heard where they occurred. However, it is important to note that Maxwell P said, appropriately, the presumption that a matter will proceed locally is a principle that is a rule of practice not a rule of law. He made clear that there is no exceptional circumstances test for an application of change of venue and the paramount requirement is that the accused have a fair trial. Having made those points, the following appears in Maxwell P's judgment:[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.

There seems to be a degree of conflict in that reasoning. In any event, the question I am concerned with is whether a fair trial can be had in the future as opposed to examining, from an appellate point of view, whether a fair trial was had.

10 It is necessary to add to that summary a reference to R v Glennon [1992] HCA 16 since it was relied upon by counsel during the submissions, particularly the prosecutor. As is well known, that case concerned the convictions of the accused, a Catholic priest, for sexual offences against children in the County Court being quashed by the Victorian Court of Criminal Appeal on the basis of a miscarriage of justice due to pre-trial publicity (per McGarvie and Nathan JJ; Southwell J dissenting). The High Court set aside those orders and reinstated the verdicts of the County Court. It was in that context that Brennan J made the following observation which has been relied upon in this case:[8]

Of necessity, the law must place much reliance on the integrity and sense of duty of the jurors. The experience of the courts (Vaitos; Gallagher) is that the reliance is not misplaced. In Munday, Street C.J. repeated an unreported passage from one of his Honour's earlier judgments:

"'.. it is relevant to note that the system of jury trial is geared to enable juries to be assisted in every possible way to put out of mind statements made outside the court, whether in the media or elsewhere. There is every reason to have confidence in the capacity of juries to do this. Judges do not have a monopoly on the ability to adjudicate fairly and impartially. Every Australian worthy of citizenship can be relied upon to discharge properly and responsibly his duty as a juror. Particularly is this so in the context of being one of a number or group of others all similarly charged with this responsible duty. I have great faith in the multiple wisdom and balance reflected in the verdict of a jury'."

If the courts were not able to place reliance on the integrity and sense of duty of jurors, not only would notorious criminals or heinous crimes be beyond the reach of criminal justice but there would have to be a change in venue for many trials now held in circuit cities or towns where knowledge of the crime and of the alleged criminal easily acquires a wide currency outside the courtroom. Our system of protecting jurors from external influences may not be perfect, but a trial conducted with all the safeguards that the court can provide is a trial according to law and there is no miscarriage of justice in a conviction after such a trial.

11 His Honour went on to quote with approval the following from Crockett J who had in this Court, prior to Glennon's trial, refused an application by him for a permanent stay of the trial:

The central point, of course, is whether a fair trial can take place having regard to the power of the trial judge to eliminate or neutralise those considerations which otherwise might operate unacceptably to the prejudice of the plaintiff.

....

Again in Jago Brennan J. dealt with this aspect of the matter in a paragraph (at p 47) and it should be set out in full. His Honour said:

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.

I am not persuaded that the plaintiff's trial, if allowed to proceed, will be unfair. The judge will exclude evidence if he considers its probative value is outweighed by its prejudicial effect. More importantly, he will be astute to impress upon the jury by directions carrying the weight of his judicial authority the need for it to exclude prejudice, to bring an open mind to the discharge of its duty, to confine its consideration to evidence given at the trial, to exclude from its consideration anything that it may have read or heard about the matter before the commencement of the trial and to bring a dispassionate and objective mind to bear upon the resolution of the issues. There is no reason to think that a jury so directed will not heed and act upon such directions.

I respectfully share their Honour's optimism as to the ability of judicial direction to the jury in this case to prevent unfairness. My experience, which is now not insignificant, teaches me that juries are amenable to, and conscientious about, bringing a fair, open and impartial mind to their important role as judges of the facts and the need to follow judicial directions.

12 The primary basis for the application was, as is often the case in applications of this type, the considerable publicity this case has attracted since the time the death of the deceased became known. The crime alleged against the accused was committed in the regional area of Wangaratta and the local interest in the case has been, and remains, significant.

13 In the submissions on the hearing of the application, it was argued on behalf of the accused that the degree of pre-trial publicity in the present case, particular within that local area, would undermine the accused right to a fair trial.

14 The application is supported by affidavits sworn by the solicitor for the accused, Nicole Menegas on 24 March 2017 and 31 March 2017. It is necessary to examine that material in some detail.

15 The relevant publicity began on 15 January 2016 with articles concerning the fact that the deceased woman was missing. On that day there was additional publicity concerning the discovery of the deceased woman's motor vehicle.

16 A Melbourne online publication of Fairfax Media on 16 January 2016, identified the accused, then a suspect, as a convicted rapist and quoted him as denying involvement in the death of the deceased.

17 On 17 January 2016, there was publicity concerning the arrest of the accused. He was identified as a person who had 'previously served time in jail' and two days later referred to as a person who was on parole at the time of the disappearance of the deceased. On 18 January the fact of the body of the deceased being discovered was publicised. By 19 January 2016 reports were appearing of public tributes being paid to the deceased woman. On 20 January the appearance of the accused before the local Magistrates Court was reported. It was reported that he was charged with both murder and a breach of parole. It was also reported that the Magistrate made an order prohibiting publication of his past charges and convictions.

18 On 1 February 2016 arrangements for the funeral of the deceased were publicised and later that month there was an event known as the 'Walk for Karen' that was to include George Halvagis, a prominent victim of crime campaigner and himself a victim, and the well known now-Senator Derryn Hinch. This was described as a proposed rally 'against violence' organised by two women from Wodonga. The rally was also in response to the killing of Zoe Buttigieg in Wangaratta in October 2015. A Facebook tag of "#ENOUGHISENOUGH" was created. On 29 February 2016 it was reported that a proposed rally was going to be very well supported. The rally itself was reported on from 6 March 2016 onwards.

19 The rally appeared to produce a variety of opinions about strengthening laws in relation to sentencing and parole. None of that material bore directly on this trial and, to me, was typical of the kinds of sentiments that are expressed at similar law and order events.

20 On 18 August 2016, there was local publicity concerning the efforts of the accused man to establish that two Lebanese men had abducted him in the days following the death of the deceased.

21 On 8 September 2016 it was reported that the accused man denied being the person who had killed the deceased and the identity of the killer would be an issue in the case. During this application I was informed by Mr Tehan that is the basis on which the trial will be conducted.

22 On 23 October 2016 there was a further rally on the steps of Parliament House in Melbourne under the banner #ENOUGHISENOUGH. The rally seemed to be concerned with better protection the community from crime.

23 By January 2017 a year had passed since the death of Ms Chetcuti and that anniversary was being commemorated.

24 On 8 March 2017, during the three-day committal hearing for this matter in Wangaratta the details of the offending were given in evidence and reported on. There was nothing inappropriate about those reports and much of the evidence will soon be before a jury in any event.

25 Local publicity also referred to this change of venue application and the claimed difficulty of conducting the trial in Wangaratta. That followed a directions hearing before me in which this application was foreshadowed by counsel fore the accused.

26 In the material before me there are also copies of publicity from around the country in various online forms, particularly concerning the committal proceeding.

27 The submissions about that publicity were to the following effect. Mr Tehan first submitted that the publicity had been extensive though he did not contend it had been erroneous. I agree that the publicity has been extensive but it has not been inappropriate and is unsurprising given the nature of the circumstances.

28 He next submitted that the deceased was a very wellknown member of the community. She had connections with the Wangaratta Council in the sense that she had worked there for 20 years and had previously been the licensee of the local hotel. She was regarded very highly. That seems indisputable. However, as the prosecutor Ms Warren noted in her submissions, with a large jury pool any potential juror with a personal connection to the deceased, including geographically, can and will be excused. As the trial judge I would of course commence with warnings and directions and reiterate them as needed. According to the Jury Commissioner's information to the prosecutor, 18,600 people are available for the pool.

29 The point most central to Mr Tehan's submissions was that the accused was a parole for a serious offence at the time he allegedly murdered the deceased and that fact is wellknown in the local community. The significance of the law and order campaign was said to be that it has been largely local and concentrated on the impugned information that at the time the accused was a convicted sex offender and was on parole.

30 Whilst there was significant reporting of the rallies, as I have noted above, and as the prosecutor has submitted, that publicity does not refer to the accused or his status as a parolee and sex offender at the time of the alleged murder. Where that topic has arisen, it has been in the Melbourne media, though I accept that people in the Wangaratta area would be likely to have had a keener and more focussed interest in any publicity about this case.

31 As recent authorities make clear, the extent of pre-trial publicity and its potential to undermine a fair trial is a consideration to be taken into account on a change of venue application but is, in isolation, unlikely to warrant the granting of the application. Something more is required.

32 In Iaria & Panozzo,[9] that additional element was the nature and timing of the pre-trial publicity, some inflammatory in tone, which reported the retrial in that matter as having been granted on a 'technicality'. Likewise in my recent ruling in R v Pain,[10] the additional element meriting the change of venue involved the wide spread reporting of the accused's change of plea from guilty to not guilty. The present application, in my opinion, is based on nothing more than pre-trial publicity about the case itself.

33 Having given consideration to the matter, I am not persuaded that I should make the order sought. As I said in Thomas:

"I adhere to the view I expressed in a similar application made in DPP v Harley Hicks:[11]

We as judicial officers have to proceed on the basis that jurors understand and comply with the judicial directions they are given, and when the rationale for those directions is carefully explained they realise the importance of applying them and they readily comply. I am not persuaded that the obvious local interest in this case from the publicity that I have seen, including the specific matters that Mr Hallowes relies upon on behalf of his client, would overwhelm the willingness of jurors to do justice as judges of the facts having been warned and directed by the trial judge.

In my opinion, in the absence of any evidentiary basis to conclude as Mr McMahon has urged me to, I consider the Court should at least afford the opportunity to the Wangaratta region to enable a fair trial to proceed in that district. This is a significant case for the area. If at all possible, consistent with the need for a fair trial, the case should be held in Wangaratta. I am not persuaded that the publicity has created circumstances where the safeguards of judicial direction to the jury will be insufficient and result in a trial that is unfair."

34 Finally, I should add that the prosecutor referred to logistical reasons why a trial in Melbourne would be problematic for a number of witnesses and family members involved. In the final analysis, the question is whether the accused can receive a fair trial in Wangaratta. If he can, as I have concluded, the trial will be heard there. If I had reached a different conclusion the trial would have been moved irrespective of the logistical problems caused by that decision.

35 The other basis for the application concerned the facilities that would be available to the accused man if the trial were held in Wangaratta. This ground was not heavily pressed on behalf of the accused. However, it remains the case that in R v Thomas[12] I concluded that a list of conditions I specified would be required to be provided to the accused for the duration of the trial. Ultimately I was informed that the list of conditions could not be complied with and so the matter was transferred to Melbourne. Those conditions were as follows:

1. That the accused be detained in a cell of which he was the only occupant;
2. That lights not interrupt his opportunities for sleep;
3. That he have a proper opportunity for exercise;
4. That he have all that he requires to be clean, shaven and well-presented before the court;
5. That he has the opportunity for contact visits with his legal team;
6. That he have access to writing and/or computer facilities to enable him to give proper instructions to his counsel and instructing solicitor.

36 During the course of submissions on this application, Mr Tehan said:

"....what concerned us was the lights being on, no allowance for contact visits, he's a protected prisoner, no access to papers and pens or computer facilities, no pillow, the lights being on when he's held at the Wangaratta cells. The court cells are not too good, as Your Honour knows."

37 On Monday 10 April 2017, with my staff, I visited Wangaratta and was shown the facilities at the Wangaratta Police Station and at the Court. I have no criticism to make of those facilities that are ample, clean and well supervised. The accused in this case would be a separate prisoner and would be highly likely to have his own cell in the custody complex at the police station. There is an exercise area which he would be able to use. The lighting arrangements in the cell blocks are such that, though there will be lights on all night for security reasons, they will be very dim and would be unlikely to interfere with sleep. The mattress that is supplied to sleep on has an in-built pillow. Further, the accused would have all that he needs in relation to being able to present in a clean, shaven and tidy manner before the Court. He will have access to writing materials though not to computer facilities which I would not regard as necessary in any event. The facilities for conferring with legal counsel are more than adequate though they are not contact visit facilities. I am told that on the weekend, which will commence at lunchtime on Friday, the accused will return to the Metropolitan Remand Centre in Melbourne.

38 Likewise at the Court, there are adequate facilities including non-contact conference facilities.

39 Contrary to the position I took in Thomas where I had not conducted an inspection_,_ I would not order that the venue in this matter be changed to Melbourne based on the custody conditions which will be provided.

40 The application for a change of venue is therefore refused. On 31 July 2017 I will commence this trial in Wangaratta. Once preliminary legal issues have been dealt with I will begin what may be quite an extensive jury empanelment process. I acknowledge that the procedure may identify issues that for good reason would require me to re-visit the ruling I have just made. If that happens, I will do so.

[1] [2014] VSC 677 - see also R v Torney unrevised ruling 21 March 2016

[2] [2004] VSC 96.

[4] [1998] 2 Qd R 208.

[5] [2008] VSCA 47.

[6] Unreported, Supreme Court of Victoria, 4 August 1970.

[9] [2004] VSC 96.

[10] [2016] VSC 634R

[12] [2014] VSC 677.