The Queen v Thomas [2014] VSC 677

2 The accused is charged with two counts of murder, it being alleged by the prosecution that at Wangaratta on 22 April 2013, he murdered his parents William and Pauline Thomas.

3 The application for change of venue is made pursuant to s 192 of the Criminal Procedure Act 2009 which provides 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 In this case, a committal proceeding was held in Wangaratta in May 2014. I am told by Mr McMahon, counsel for the accused, that the matter will proceed as a "fully contested" trial. Among other things I am also told that the confession the accused is alleged to have made about the killings will be contested. Beyond that, and despite the committal having been held 6 months ago, the more precise issues in the trial have apparently not yet been identified. The prosecution has not yet filed a summary of prosecution opening and therefore the accused has not been required to file any response.

5 Broadly, the application for change of venue has two bases.

6 First, it was contended on behalf of the accused that the effect of the widespread publicity concerning this matter in the Wangaratta district at the time these deaths occurred was such that it's effect would prejudice a fair trial. That was argued to be the effect because it was put that there is widespread community knowledge that the accused "brutally" murdered his parents who were "widely known and loved" members of the community and then "confessed" to having committed the murders.

7 Second, it was submitted that the conditions under which the accused would be held in custody in the cells at the Wangaratta Police Station during the expected four week trial would be so unsatisfactory as to interfere with the fairness of the trial and require the venue for the trial to be changed.

8 At the outset I express the opinion that there are very good reasons why serious trials should be heard in the district in which the offence or offences have been committed. It is not just done for convenience though that is a factor. Our criminal justice system must not be regarded as a process which is made inaccessible to those who live in regional areas. When a crime is committed in a regional area, those who live in that region have exactly the same interest and significant stake in the criminal justice process as those who live in Melbourne when a serious crime is committed in this city.

9 So, dealing first with the publicity issue. I begin by saying that I have read the copies of the newspaper publicity that underpins this application. The coverage is dramatic because the subject matter is dramatic. The coverage is otherwise unremarkable. However, Mr McMahon, on behalf of the accused, made it clear that it was not the fact of the publicity per se that he relied on or any complaint about its accuracy. As I follow the argument, the difficulty he relied on as being insoluble is that the Thomas family have been so entrenched in the Wangaratta district for so long with numerous connections with potential members of the jury pool, that the publicity about the accused having confessed to a double murder "will be pretty much impossible to eradicate". I take that to mean that the usual judicial directions will not have sufficient effect to remove prejudice and consequent unfairness.

10 In this connection Mr McMahon places reliance on some observations of Cummins J in DPP v Towle in 2007.[1] In that matter his Honour ruled that the trial of the accused should be moved from Mildura to Melbourne. In his ruling he introduced his reasoning by referring to the need to establish exceptional circumstances for a change of venue. Clearly that is not the test to be applied. The question is whether a fair trial can be had. However, his Honour concluded in favour of the application for the change of venue on the basis that the "balance and representativeness" required of the jury panel for the trial could not be achieved. In that connection, his Honour said:

It is an established and proper principle that jurors randomly selected to form a jury should have no personal knowledge of or connection with the parties to a case or the matters to be litigated in the case. As a matter of practical reality, it would be most difficult to select a jury in Mildura with no knowledge of or connection to the case thus defined and still maintain a broad and representative jury.

11 In my opinion, his Honour has conflated two separate concepts. In any significant case that has had widespread publicity, many people who are potential jurors will have some level of personal knowledge. In this case they may have been aware of the Thomas family in the Wangaratta area albeit without any personal connection to them. They may have read the local publicity. Those factors and that knowledge in themselves would not disqualify a person from being a juror nor make them impervious to judicial direction. If, on the other hand, there was an actual personal connection between the potential juror and the family of the deceased and accused then, of course, such a connection would in all likelihood be a disqualifying factor.

12 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'."

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

14 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 which 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.

15 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.

16 Often these applications are in contention. The case to which I earlier referred of Iaria & Panozzo was also a Wangaratta case, in which a re-trial was to be held after a verdict of guilty and successful appeal, the first trial having been held in that location. The re-trial was proposed to be held in Wodonga but the accused applied for it to be transferred to Melbourne. In the debate concerning a change of venue to Melbourne for the second trial, the prosecutor opposed the application. Relying on the test espoused in the judgment of the Queensland Court of Appeal in R v Georgiou, Edwards & Heffernan,[8] he relied on the ability of judicial direction to neutralise the effect of the publicity and pointed to significant inconvenience for witnesses if the trial were held in Melbourne. In the circumstances, Nettle J concluded that given the nature and gravity of the offences, the local hostility and the extensive reporting of the first trial coupled with the assertion that the re-trial had been granted on a "technicality", he should accede to the application for the matter to be heard in Melbourne.

17 In this case the prosecutor's submissions were very economical. There was, he said, "nothing in the first point about publicity". He did inform me that the number of members of the community from which a jury panel would be drawn was 40,000 rather than the 27,000 Mr McMahon had relied on. Those figures were later corrected to indicate that the number of people within the radius from which a selection can be made was 38,416 as at 2006 - some 8 years ago. I assume the population has increased.

18 Whilst not offering any solution or process for improvement, Mr Gyorffy urged that I consider the issue of conditions of custody for the trial carefully. I will deal with that matter shortly.

19 As to the inconvenience of moving the case to Melbourne, Mr Gyorffy said there was no single factor that he could point to that would in any way prejudice the Crown.

20 After some reflection, as the matter presently stands I would not be prepared to make an order changing the venue for the trial on the first basis concerning publicity and its particular impact in this case. At this stage I am not persuaded that the effect of the publicity Mr McMahon contends for by particular reference to assertion that the accused has confessed to a double murder is not amenable to judicial direction. In addition, I have no information as to how that matter will be argued in the trial. Mr McMahon's submissions proceed on the assumption that from the 38,416 residents of the area it will be impossible to empanel a jury of people who have no personal connection of some kind with the Thomas family or who won't be exposed to others with such a link. At this stage, such a proposition is entirely speculative and I cannot come to a conclusion about it. I should it make it clear that I do allow for the possibility that when the empanelment process occurs, if it occurs in Wangaratta and assuming the custody conditions can be significantly improved, the Court may be confronted with such significant difficulties in empanelling a jury that this change of venue ruling would need to be reconsidered at that stage.

21 I adhere to the opinion I expressed in a similar application made in DPP v Harley Hicks:[9]

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.

22 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.

23 I next deal with the second basis on which it is sought to move the venue for the trial to Melbourne concerning the arrangements for the custody of the accused during the trial. In an affidavit in support of the application which is not the subject of contradiction by the prosecutor, it is deposed by the solicitor for the accused that the trial will take 4 weeks. During that trial, I understand it is presently intended that the accused will be held in the cells at Wangaratta Police Station. In those cells the lights will be on all night and the accused will be in a shared cell. Those apparently were the conditions that applied during the committal in May of 2014. There are two cells in the police station which hold 11 prisoners. He will be denied access to toiletries, the ability to shave and will have limited clothing. His ability to assist in the preparation of his defence and the giving of instructions during the trial will be limited by a lack of stationary and the ability to write with a pen let alone the use of a computer. There will be no contact visits with lawyers.

24 No affidavit was filed on behalf of the prosecution. Apart from Mr Gyorffy believing the light might be able to be switched off and that if I directed it the accused might be able to be placed in a cell by himself, little attempt has been made to remedy the problems identified. That response is entirely unsatisfactory.

25 I have sat in Wangaratta on a number of occasions since 2010 and I understand the shortcomings of the police cells accommodation. Clearly the circumstances are unacceptable and the prosecutor does not contend otherwise.

26 How it can be thought that a man on trial for two counts of murder can be expected to endure his trial in these conditions and give well-reasoned and considered instructions is beyond me. In stark contrast to the conditions of the court complex and police station in Wangaratta, the Government has recently erected a new building for the Department of Justice adjacent to the court. The need to expend further funds on the court and police station is significant.

27 In these circumstances, unless there are significant changes, I very much doubt that the trial of the accused can be fair.

28 However, I propose to adjourn this matter until Friday 27 February 2015. On that date I expect to be informed as to whether the conditions presently prevailing at Wangaratta can be made sufficiently comfortable to facilitate a fair trial of the accused. That would require, at a minimum, the following to be provided:

1. That the accused be detained in a cell of which he was the only occupant;
2. That his opportunities for sleep not be interrupted by lights;
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 have 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.

29 The steps to be taken to provide these facilities should actively involve the office of the Director of Public Prosecutions because these are issues that office should be interested in. If I am informed after some effort, these facilities cannot be provided in Wangaratta then on that date I will direct that the venue for the trial be changed to Melbourne.

30 I will be the trial judge in this matter. I therefore give the following further directions:

1. That the prosecution file and serve a summary of the prosecution opening in this matter by Friday 30 January 2015.
2. That the defence file and serve a response to the summary of prosecution opening by Friday 20 March 2015.
3. That there be a further directions hearing in this matter at 9:30 am on Friday 27 February 2015 at which time the issue of the custody arrangements will be finalised as will be the application for change of venue.

[1] [2007] VSC 551.

[2] [2004] VSC 96.

[4] [1998] 2 Qd R 208.

[5] [2008] VSCA 47.

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

[8] [2002] QCA 206; (2002) 131 A Crim R 150.