Burge v The State of Western Australia

In the Supreme Court of Western Australia, Burge sought a change of venue for his criminal trial under Section 135 of the Criminal Procedure Act 2004. The respondent, the State of Western Australia, opposed the application. Burge contended that a fair trial in the original venue was impossible due to extensive pre-trial publicity. The State argued that the publicity did not prejudice the potential jurors to the extent that a fair trial could not be held in the original venue.

The legal issues before the court were whether the pre-trial publicity was such that it would prevent Burge from receiving a fair trial in the original venue, and if so, whether this justified a change of venue under Section 135. The court examined the nature and extent of the publicity, its potential impact on the jury pool, and the measures in place to mitigate any prejudicial effects. It also considered whether the publicity was inflammatory or merely informative.

The court held that while the pre-trial publicity was extensive, it did not irrefutably establish that a fair trial could not be held in the original venue. The publicity was largely factual, reporting on the events leading to the charges against Burge, rather than being inflammatory or designed to incite prejudice. The court found that the potential for prejudice could be managed through appropriate jury selection processes, including voir dire. Therefore, the application for a change of venue was dismissed. The court emphasised that each case turns on its own facts, and while the publicity was significant, it did not reach the threshold required to warrant a change of venue.