Burge v The State of Western Australia - [2006] WASC 171

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: BURGE & ANOR -v- THE STATE OF WESTERN AUSTRALIA [2006] WASC 171

CORAM: MILLER J

HEARD: 31 JULY 2006

DELIVERED : 31 JULY 2006

PUBLISHED : 14 AUGUST 2006

FILE NO/S: INS 34 of 2006

BETWEEN: KERRY JAMES BURGE
BRADLEY STUART BURGE
Applicants
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal Law Application for change of venue Section 135 of the Criminal Procedure Act 2004 (WA) Turns on own facts

Legislation:

Criminal Code, s 577
Criminal Procedure Act 2004 (WA), s 84, s 84(2), s 84(3), s 85, s 135, s 135(2), Sch 1 Div 2

Criminal Procedure Rules 2005 (WA), r 14

Result:

Application granted

Category: B

Representation:

Counsel:

First-Named Applicant     :     Mr Z Zayler
Second-Named Applicant    :     Ms J Pepe
Respondent:     Ms R N Johnston

Solicitors:

First-Named Applicant     :     Zygmunt Zayler
Second-Named Applicant    :     Josephine Pepe
Respondent:     State Director of Public Prosecutions

Case(s) referred to in judgment(s):

R v Anderson (1974) 5 ALR 268
R v Cattell [1968] 1 NSWR 156
R v Giddings [1916] VLR 359

Case(s) also cited:

Casey v The Queen, unreported; SCt of WA; Library No 930362; 23 June 1993
Grieves v The Queen, unreported; FCt SCt of WA; Library No 8724; 18 February 1991
R v Ong [1999] WASC 51
Toh & Chong (1986) 30 A Crim R 203

MILLER J: Kerry James Burge and Bradley Stuart Burge (the "applicants") stand charged on an indictment in the Supreme Court in Perth bearing date 23 February 2006 that they and each of them murdered one Nora Marie Williams on 21 January 2000 at South Hedland and on the same date and at the same place unlawfully did grievous bodily harm to Stephen Marney.
The indictment is in accordance with the Criminal Procedure Rules 2005 (WA) and follows Form 4 which is the prescribed form of an indictment under r 14. This form contains a box at the top left which nominates the place of trial. The place of trial is shown as Perth.
Rule 14 is supplementary to s 84 and s 85 of the Criminal Procedure Act 2004 (WA) ("the Act"). The formal requirements of an indictment are set out in s 85 of the Act and are detailed in Sch 1 Div 2. Section 84(2) of the Act requires that an indictment must specify the place where it is to be dealt with by the superior Court "but the place need not be the place to which the accused was committed". Under s 84(3), irrespective of where the case is to be dealt with, the indictment must be lodged at Perth.
In this case the applicant Bradley Stuart Burge appears to have been charged in the Perth Magistrates Court and the applicant Kerry James Burge in the Kalgoorlie Magistrates Court. Both were committed for trial at the Perth Sessions of the Supreme Court on 2 March 2006.
The State intends to try the applicants in the Supreme Court at Perth, being the Court to which they were committed and the place of trial nominated in the indictment. There is no doubt that the State has a discretion to lay the venue for a criminal trial at the location which it chooses. That discretion should not be overridden save in exceptional circumstances and for real and substantial reason: R v Cattell [1968] 1 NSWR 156 per Sugerman JA (at 157) and Holmes JA (at 160).
However, s 135 of the Criminal Procedure Act 2004 gives to this Court a discretion to change the venue of a trial. Section 135(2) reads:
"If there is a good reason to do so, a court may order that the whole or a part of a case be conducted at another place in the State (whether or not there is a registry of the court or courtroom facilities at the place)."
The applicants have made a joint application for a change of venue from Perth to South Hedland. The application is made under s 577 of the Criminal Code, but that section has been repealed and the procedure governing change of venue is that contained in s 135 of the Criminal Procedure Act 2004. The applicants seek an order that the prosecution "show good cause … why the trial … not be heard in South Hedland" but in reality this is to be treated simply as an application for change of venue under s 135 of the Act. The reason advanced on behalf of the applicants is that the place of trial in a criminal proceeding should be the place where the offence is alleged to have been committed. As the offences in this case were alleged to have been committed at South Hedland, it is the South Hedland Court which the applicants seek as the venue for the trial.
It is correct that the general principle is that an indictment for crime should be tried by a jury of the place where the crime is alleged to have been committed. In R v Cattell (supra) Holmes JA (at 159) put it in the following way:
"Though the principle has always been that an indictment for crime must be tried by a jury of the place in which it is alleged that the offence has been committed and before a Court having jurisdiction therein, this rule does not rest on the principle that criminal jurisdiction is territorial but upon the history of the development of trial in pais. Trials of offences committed outside the body of the realm could not be conducted according to the course of the common law until statutory provision was made to that effect; for example, crimes committed on the high seas were tried under the authority of the Admiral. Many subsequent enactments have modified the common law in England and the rules as to venue to which the common law rules related. As long ago as 1896 the Encyclopaedia of the Laws of England, vol. XII, at pp. 450 ‑ 1 showed how the venue in respect of a variety of offences was not confined to the place where it is alleged the crime was committed but in many cases the venue could be laid in any county at all."
However, the general principle is subject to the consideration that the venue in a criminal case ordinarily lies with the Attorney‑General or in this case, the State of Western Australia. Statutory provisions such as s 135 of the Criminal Procedure Act 2004 are to cover cases where, despite the exercise of discretion by the Attorney‑General (or the State) and despite representations having been made to him, the Court has an ultimate responsibility to make as sure as it can that the applicants will have a fair trial: R v Cattell (supra) per Holmes JA (at 160).
Most of the cases deal with an application for change of venue where it is contended that the accused could not get a fair trial in the location where the offence is alleged to have occurred. In this case the application is made not for that reason, but for the reason that it is contended that a fairer trial would be a trial in the location at which the crimes are alleged to have been committed.
The matter is ultimately one for the discretion of the Court. The proper exercise of the discretion takes into account not only the interests of the applicants but also the interests of justice generally. In R v Anderson (1974) 5 ALR 268 Muirhead J said (at 271):
"In exercising this discretionary power there must be one basic consideration – that is 'the interests of justice'. I must consider the interests of the person charged and also the proper administration of criminal justice in this matter in the Territory."
R v Giddings [1916] VLR 359 was a case in which it was contended that the discretion of the Attorney‑General to lay the venue of a trial at Ballarat should be reviewed and the trial be held at Horsham. Cussen J pointed out that although notice of intention to prefer a presentment at the Supreme Court at Ballarat had been given to the accused, the alleged offence had been committed near a place called Warracknabeal which was nearer to Horsham. The question before the Court was whether the accused had shown good cause why the place of trial should be changed. Cussen J (at 362) said:
"I do not suggest there would not be a fair trial at Ballarat. But, notwithstanding the abolition of local venue for criminal trials, I think that in a case like this the trial should, prima facie, take place in the locality where the offence was committed and the witnesses are. There is nothing to rebut that prima facie presumption, and therefore I think the trial should be at the place the accused suggests."
In the present case it is not for the State to show good cause why the matter should not be held in the local venue. The onus is on the applicants to show that there should be a change of venue. Prima facie, South Hedland would be the appropriate place for the trial, as South Hedland is the locality where the offences were allegedly committed and the witnesses are there. The question is whether there is anything to rebut the prima facie presumption that the trial should be held in the locality where the offence was committed and where the witnesses are.
I have accepted in evidence an affidavit of Christopher Marten Adams sworn 27 July 2006 which explains why it is that the State has opted for trial at Perth rather than South Hedland. The affidavit explains that the person alleged to have been murdered was a well known and respected Aboriginal community member and the death of that person has become a sensitive and emotional issue within the Aboriginal community. It is anticipated that approximately 200 Aboriginal community members are likely to attend Court "seeking justice for the death of a family member" if the trial is held in South Hedland. It is contended that this would be potentially dangerous for the local community and could lead to potential unrest. Logistically, significant resources including police officers to manage any potential unrest within the community and at the courthouse will be required and this will stretch resources in the district. It is true that there is no detailed evidence in relation to this. It is the opinion of the officers.
Further, there are approximately 20 officers potentially required for trial. Only two of these are located in Port Hedland. The remainder are in the metropolitan area. If the trial is held in South Hedland there will be significant cost to the police service and to the State generally by reason of the need for a number of expert witnesses to be flown from Perth to Hedland for the trial. I am also told that accommodation is at its peak in South Hedland by reason of the boom in the mining industry and the local hotels and motels are permanently booked, with a result that it would be difficult to accommodate a number of witnesses. Finally, the key civilian witness, one Jennifer Ness, is concerned that if she has to give evidence in South Hedland there may be retribution against her family. As to these issues:
(a)there may not need to be 20 witnesses; and
(b)cost is not a key factor, nor accommodation problems.
The defence contend that a view of the scene will be necessary and that a video of the scene is inadequate. The position of Ms Ness is a concern, but giving evidence here may have the same consequence. There are no specific details here.
All of these factors lead me to the view that the prima facie presumption that the trial should be held in the locality where the offence was committed has not been rebutted; the view is the key factor which has influenced me most.
The potential for disturbance of the trial is a matter which concerns the administration of justice generally. There is the potential that jurors will be intimidated or at least placed in an uneasy position if there is major disruption in and around the courthouse and steps must be taken to ensure this does not happen. This can be done. Extra resources will clearly be required. They can be provided.
The application for change of venue of the trial is therefore allowed.