THE QUEEN v KARL MICHAEL HAGUE

2 The applicant has been charged with the murder of Rickey Balcombe, then aged 16 years, at the Market Square Shopping Centre in Geelong on 5 May 1995.

3 The trial of the applicant on the charge of murder is to commence on 29 January 2018 and, subject to this application, it is listed to be dealt with in the Geelong sittings of this Court. On this application it is contended on behalf of the applicant that the trial should instead be heard in Melbourne.

4 The basis for the application is that because of the extensive and prejudicial publicity about this matter between May 1995 and November 2017 a fair trial will not be able to be had. That was refined to some degree in argument and I will come to the detail of that shortly.

5 The application is made, as I said, pursuant to s 192 of the Criminal Procedure Act, which provides that:

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 the court considers appropriate.

6 It is necessary to set out some of the history of this matter. The stabbing death of Ricky Balcombe on 5 May 1995 was alleged to have followed an earlier altercation on 21 April 1995 in which Balcombe was assaulted. It is alleged that his assailant was the applicant. On the following day, several of Ricky Balcombe's associates are alleged to have attacked a car the applicant was sitting in in Malop Street, Geelong, doing considerable damage to the vehicle.

7 On Friday 5 May 1995 Balcombe and a friend, Paul Bellia, were in the vicinity of the Market Square Shopping Centre at about 3.20pm. It is alleged that as Balcombe walked towards a public phone, the applicant is alleged to have approached him with a knife, stabbing him several times. Paul Bellia was a witness to what occurred, as were several shoppers.

8 The person who stabbed Balcombe later threw the knife away and fled the scene, as observed by another witness, Phong Tan Huynh.

9 Balcombe was taken to the Geelong Hospital, but by 4.15pm he had died from his wounds.

10 The applicant was later interviewed by police and he denied being at the Mall at the relevant time. He later agreed to take part in an identification parade and the result of that process was that no identification occurred.

11 In October 1995 at the Geelong Show the witness Paul Bellia saw the person he said stabbed Ricky Balcombe and who was later identified as the applicant. In March 1996 the applicant was again interviewed and he again denied being at the mall at the time of the killing.

12 It is also alleged that in September 1996, whilst in the Geelong police cells, the applicant made an admission about his involvement in the killing of Balcombe to a man named Craig Barlowe.

13 On 29 October 1996 the accused was charged with the murder of Balcombe and he was committed for trial in this Court. However, on 6 February 1998 a nolle prosequi was entered by the Director of Public Prosecutions and the trial did not proceed.

14 A further investigation was more recently conducted by Victoria Police. Witnesses were spoken to again and the result was that a direct indictment was filed in this Court against the applicant for murder. On 16 August 2017 the applicant was brought before the Court and remanded in custody.

15 The further prosecution evidence includes evidence from the witness Paul Bellia, who had been previously unwilling to identify the applicant as the person who attacked Balcombe but is now apparently willing to do so.

16 In addition another witness, Janelle Landy, will apparently give evidence of an admission of guilt that the applicant is said to have made only days after the murder to the effect that he was the person who carried it out.

17 On 27 September 2017 I presided over the voir dire of evidence being recorded for the witness Christopher Lawson. That voir dire was necessary because the witness is suffering from a terminal illness and may die before this trial can proceed.

18 Lawson gave detailed evidence, which included a description of what occurred on 5 May 1995 at the Mall. He said he was walking in that area with his brother when he saw a person, alleged to be the applicant, who threatened him. He turned to confront the man but was restrained by his brother and they kept walking.

19 He said he later saw Paul Bellia and Ricky Balcombe and sometime after that Bellia came running to where they were and said that Ricky Balcombe has been stabbed.

20 At the trial of the applicant the issue to be raised for the jury's consideration will be whether the prosecution can prove beyond reasonable doubt that he was the accused who stabbed Balcombe.

21 To complete the procedural history, on 31 October 2017 the applicant applied for bail. I refused the application on the basis that exceptional circumstances had not been established as the Bail Act 1977 requires when the applicant is charged with murder.

22 This application for change of venue is primarily based on what is described as the extensive media coverage occurring concerning this killing from the date it occurred in May 1995 onwards to the present. Much of that publicity is attached to the affidavit in support of the application sworn by the solicitor for the applicant. Some of it occurred a number of years ago. This was a story that kept returning to the headlines. However, there has been more recent publicity including from 2014 onwards and in March of this year about the case and in particular in August 2017, when the applicant was arrested.

23 I have considered the material as it has been presented in the affidavit in support of the application and in the folder of the various copies of newspaper coverage, principally from the Geelong Advertiser.

24 A number of complaints are made about the media coverage. First of all it is extensive and it is submitted on behalf of the applicant the media material is likely to revive memories of previous coverage as well as expose the local jury pool to further prejudicial material.

25 In addition to the Geelong Advertiser, in March 2017 a television program was screened on Channel 7 entitled 'Million Dollar Cold Case', which identifies the applicant and his previous criminal history, and to which I will again refer. Whilst that was broadcast widely in Victoria and perhaps beyond, it was surely of great interest to viewers in Geelong.

26 It is also submitted on behalf of the applicant that the media coverage refers to highly prejudicial allegations suggesting the applicant threatened witnesses and implies that he may be connected with the death of witnesses through the use of high concentration of heroin doses.

27 It is, therefore, submitted in support of the change of venue, that the trial should be held at the location where all reasonable people would admit that the trial would be fair. It is submitted on behalf of the applicant that cannot occur if the trial takes place in Geelong and it should be heard in Melbourne.

28 Mr Tinney of Senior Counsel, Senior Crown Prosecutor on behalf of the Director, effectively submitted that the publicity which is the subject of complaint and criticism can be dealt with by judicial direction, both to the jury panel and the empanelled jury. The trial jury, he argued, would, in any event, have to be told quite a bit about the history of the investigation. In his submission the trial should be conducted in Geelong as presently contemplated.

29 I have had occasion to examine the principles surrounding applications of this kind on a number of occasions. Those cases included Hicks,[1] Thomas[2] and Cardamone.[3] In those cases the principles enunciated by Nettle J in Iraria & Pannozo[4] and the Court of Appeal in Vjestica[5] were referred to, discussed and applied by me.

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. The application is refused.

31 Hicks proceeded as a trial in Bendigo.[6]

32 In Thomas I adhered to the opinion I had expressed in Hicks and refused the application for change of venue made by the accused on the basis of publicity, though I allowed it on the basis of the inadequacy of the facilities in which Thomas was to be held.

My experience, which is now not insignificant, teaches me that juries are amenable to, and conscientious about, being in a fair, open and impartial mind to their important role of judges of the facts and the need to follow judicial directions.

34 Ultimately, Cardamone proceeded as a plea in Wangaratta.

35 In this case it is instructive to return to recall the approach of Nettle J in Iraria & Panozzo when his Honour concluded:

For the reasons already given, I am also of the view that it overstates the burden that lies upon an applicant for a change of venue to say that the venue will not be altered unless the court is satisfied that there is a reasonable possibility that the applicant will not have a fair and impartial trial and that the discretion although wide is not lightly to be exercised.

Like Cussen J in Cording v Trembath and Starke J in R v Forsyth and Lanson I am not prepared to say in this case that a proper trial would not be possible before a jury in the district in which the events in issue are alleged to have occurred. But now, even more than 80 years ago, it is desirable to go further than that, to ensure not only that a fair trial would be had in fact, "but that it should be had in such circumstances that all reasonable men would so admit". For again to invoke the observations of Brennan J in Jago, even if judicial measures cannot always secure perfect justice to an accused, the legal right of an accused truly stated is a right to a trial as fair as the courts can make it.[7]

36 It is important to note that in that case, which concerned the conduct of a trial in Wangaratta, the trial in respect of which Nettle J ordered a change of venue was a re-trial following a successful application to the Court of Appeal. During the initial trial there had been daily coverage, guilty verdicts and substantial sentences which were greeted with widespread approval. There was also evidence of community hostility toward the accused and their families coupled with threats before and after the verdict. In the opinion of Nettle J, the publicity about the judgment of the Court of Appeal was likely to revive the recollections of people of what was occurring when the trial was taking place.

37 Applying those principles in this case, in my view there are some important features to consider. First, it is true that the publicity in this matter has been going on in the Geelong area for a very long period of time. The vast bulk of the publicity has been in the Geelong Advertiser, which means that though this matter has broader publicity, its concentration and frequency has been greater in the Geelong area chronologically. That publicity referred to begins by reporting the killing of Balcombe and the efforts by the police to identify the killer. In October 1996 the fact of the charge against the applicant received publicity. In February 1998, the fact of the entry of a nolle prosequi was publicised. In June 2002 publicity was given to the fact that the applicant was sentenced for theft in the County Court. In 2009, the applicant was charged with attempted murder which was unrelated to this matter and arising from a shooting at a pizza shop. The committal hearing for that charge was publicised in May 2010.

38 On 11 August 2010, Coghlan J in this Court ordered that the trial of that matter be transferred for hearing in Melbourne[8] on the application of the accused. He did that because he considered the extensive publicity about the allegations of murder that I am now concerned with in this case would have a significant effect on the prospect of a fair trial in the attempted murder trial. His Honour said:

I regard the particular insidious [sic] nature of this material as warranting [a change in] the place where the trial would take place.

39 In June 2011, the applicant having pleaded guilty to lesser charges than attempted murder, substantial publicity was given to the sentence imposed on him by Whelan J in August 2011. That sentence was one of 4 years with a minimum term of 2 and a half years. The front page publicity concerning that sentence, which was for firing gunshots into a pizza shop, was linked to this case on the basis that in the opinion of Ricky Balcolme's mother if the applicant did not kill Balcolme, he knew who did. Thus it was reported that was the reason why she attended the sentencing of the applicant on the unrelated matter.

40 In the years immediately following that case the publicity campaign continued. In May 2015 the case was again commanding front page attention in the Geelong Advertiser featuring the applicant being quoted as saying that he wanted the killer found also. In March 2017, substantial publicity accompanied the announcement of a million dollar reward under the headline 'Avenge Ricky's Murder'. Then on 24 March 2017 came the publicity which featured the case again including the applicant and carrying the suggestion that witnesses have been 'done away with' because of the importance of their evidence. That was followed by front page denials by the applicant that he was killer of Ricky Balcombe and more analysis of the murder. Also in March 2017, as I have already mentioned, on Channel 7 a program was aired under the title 'Million Dollar Cold Case'. It is enough to observe that the clear message from program was that the applicant was guilty of the murder in the opinion of police, that his alibi had been 'cracked' and that they were 'building a case' against him.

41 In August 2017 the applicant was arrested with more front page publicity and the allegation was made that people close to the case had died and that the investigation had been hampered as a result. The publicity was completed with coverage of my refusal of the applicant's bail application including comments I made about the strength of the Crown case.

42 I have a strong and well-developed view that wherever possible trials should be held in the district in which the crime is alleged to have occurred. I have expressed that view on a number of occasions including in the rulings to which I have already referred. However, in this case after some reflection I have concluded that the publicity about the killing of Ricky Balcombe and the widely broadcast suspicion that attached to the applicant, primarily at the hands of the Geelong Advertiser, has created an atmosphere in the Geelong area over the 22 years since May 1995 which is now genuinely toxic to the applicant and 'out of touch'[9] with the concept and prospect of a fair trial.

43 Sometimes the mental gymnastics that we require juries to engage in in serious criminal trials are simply too hard and we ask too much of them. People are not computers. It is their human experience and common sense that we depend on and when that has been polluted by the kind of publicity that has occurred in this case it is time, at a minimum, to change the venue.

44 I regard the risk of potential jurors being unable to put the hostile and graphic publicity out of their minds as significant. It is, in my opinion, long overdue for parts of the media that report on these matters to apply moderation to the reportage when there remains the realistic prospect that a citizen may be put to his trial charged with the most serious offence known to our law. It is not to the point that the applicant in this case participated in the media circus, he remains entitled to a fair trial and, in my opinion, that cannot be had in Geelong.

45 The application for change of venue is allowed. The trial will commence as of 29 January 2018 in Melbourne.

[1] Unreported, Supreme Court of Victoria, 11 December 2013.

[2] [2014] VSC 677.

[3] [2017] VSC 225 R.

[4] [2004] VSC 96; (2004) 9 VR 425.

[5] [2008] VSCA 47.

[6] [2014] VSC 266.

[7] [2004] VSC 96; (2004) 9 VR 425 at 430.

[8] Unreported, Supreme Court of Victoria, 11 August 2010.

[9] To use a phrase often levelled at the courts.