Director of Public Prosecutions v Scriven

[2014] VSC 157

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2013 0181

DIRECTOR OF PUBLIC PROSECUTIONS	Plaintiff
v
WILLIAM JAMES SCRIVEN	Defendant

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JUDGE:	COGHLAN JA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 March 2014
DATE OF JUDGMENT:	9 April 2014
CASE MAY BE CITED AS:	DPP v Scriven
MEDIUM NEUTRAL CITATION:	[2014] VSC 157

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PRACTICE – Venue – Application by accused for change of venue – Applicant relied in combination upon alleged adverse publicity, size and neutrality of jury pool, facilities available to accused while on remand at place of trial, and impact of environmental factors at place of trial on accused’s health – Insufficient grounds for change of venue on the facts.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Plaintiff	Mr P N Rose SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Defendant	Mr J R V Kelly	Leanne Warren & Associates

HIS HONOUR:

1. Application is made on behalf of the accused, William James Scriven, for a change of venue for his trial.  He has been charged with one count of murder and his trial is listed for hearing on 28 April 2014.

1. The application is made pursuant to s 192 of the Criminal Procedure Act 2009 (Vic) (the ‘Act’).

192     Power to change place of trial

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 that the court considers appropriate.

1. In this case there are four matters which, when taken in combination, are said to justify the change in venue.  They are:

(i)there has been a great deal of publicity about the case;

(ii)the pool of those qualified to serve as jurors is both local and relatively limited overall.  There are a large number of local witnesses who might be known to prospective jurors and it would be difficult to find a reasonably representative jury;

(iii)that the conditions in the cells at Morwell proved, during the committal, to be inadequate and there is no real reason to believe that they would be different during the trial; and

(iv)the applicant suffers from asthma and the prevailing atmospheric conditions in Morwell might well be detrimental to his health.

1. The reason the matters were pressed in combination was that it was accepted that none of the matters taken alone would justify the change of venue.

1. Since the authorities have asserted that proper arrangements can be made in the cells at Morwell for the proper detention of the applicant, and because any health warnings about Morwell have been lifted, there can be little in points (iii) and (iv).

1. I have looked at the material referred to in to the affidavit of Leanne Warren, the applicant’s solicitor, regarding the applicant’s situation.  Complaint was made specifically about the reporting of special security arrangements at the applicant’s committal hearing, and the fact that the applicant was referred to by in his surname (whereas the deceased was referred to by his first name).  These matters, taken with the volume of the publicity in a relatively small community, were alleged to rise to the level of prejudicial publicity.  I do not regard the publicity as being unreasonable.

1. The events the subject of the trial occurred in Traralgon.  A large number of civilian witnesses will be called.  Most of the witnesses live in Traralgon.  The jury district for the Latrobe Valley is reasonably large, and more than 20,000 prospective jurors can be chosen from.  These witnesses may be known to some prospective jurors, but if a large panel is chosen from prospective jurors other than those resident in Traralgon I do not think that there is any reason why a properly independent and representative jury could not be found.

1. In cases of this kind, particularly when they are being heard in rural and regional areas, the jury panel is routinely given a list of prospective witnesses with a brief description of where the witnesses fit into the case.  It is also a standard direction to proposed jurors that if they have any preconceptions or knowledge about the case, or know any of the witnesses, they should apply to be excused.  I do not doubt that the trial judge will be alert to the possibilities of prospective jurors knowing a witness and will be careful to empanel accordingly.

1. Applications if this kind have been made in the common law over many years.

1. Prior to the enactment of the Act, these applications were governed by s 359 of the Crimes Act 1958. That section conferred an unfettered power on the Supreme Court to change “the time and place of trial”.[1]  Much learning developed about the provision.  It seems to have been accepted “that in a case like this the trial should prima facie, take place in the locality where the offence was committed”.[2]  A useful summary of the earlier authorities can be found in the unreported decision of Menhennitt J in R v Isaacs.[3]

   [1]R v Iaria & Panozzo (Change of Venue) [2004] VCS 96, [1].

   [2]R v Giddings [1916] VLR 359, 362 (Cussen J).

   [3](Unreported, Supreme Court of Victoria, Menhennitt J, 19 February 1975)

1. I am not aware of any authority in which s 192 has been authoritatively dealt with. It is arguable that s 192(b) is wider than the common law, but I doubt that if it is much wider. Any reason referred to in s 192(b) would have to be a good reason.

1. What was said by the Court of Appeal in R v Vjestica[4] sets out the applicable principles.  In his judgment, Maxwell P carried out a careful analysis of the principles and the facts in that case.  His Honour said:

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.

[4](2008) 182 A Crim R 350, 353, [5] (Buchanan JJA and Whelan AJA concurring).

1. I do not see that the matters raised in the present case would render the trial unfair.

1. I accept the assurances of the relevant authorities that it is expected that the applicant can be satisfactorily accommodated in the cells.  The experience of the judges of this Court has long been that the detention of prisoners in police cells whilst being tried has been unsatisfactory, so whatever expectations the authorities have for the appropriate detention of the applicant, and what actually transpires during the trial, will have to be monitored.  I indicated in argument that it may well be that the issue will have to be raised with his Honour during the trial. 

1. The same might be said for questions of health.  If the air quality in Morwell does deteriorate in the future, that is also a matter which might call for a review.

1. As this matters stands, however, there is insufficient reason to justify the change in venue.

1. Although it has not be determinative, it should be noted that it would be very inconvenient to move the trial to Melbourne, particularly for the witnesses.

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