DPP v Bennett - [2004] VSC 148

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1520 of 2003

DIRECTOR OF PUBLIC PROSECUTIONS

JOHN ROBERT BENNETT

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 April 2004
DATE OF RULING:	26 April 2004
CASE MAY BE CITED AS:	DPP v Bennett
MEDIUM NEUTRAL CITATION:	[2004] VSC 148

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RULING

Criminal law – Practice and procedure – Place of trial – Application for change of venue – Test to be applied – Primary entitlement of local community to have local cases tried locally – Section 359(1) Crimes Act 1958

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr W Morgan-Payler QC with Ms S Pullen	Office of Public Prosecutions
For the Accused	Mr J Montgomery	Clareborough Pica

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HIS HONOUR:

This is an application on behalf of the accused Mr Bennett for a change of venue from the sittings of the Supreme Court at Sale to its sittings in Melbourne. The application is not opposed by the prosecution.

The accused is charged on the one presentment with six counts: the murder of Mr Adam Prendergast at Sale on 1 March 2002; arson causing death at the same time and place; arson at Aerodrome Road, Sale on 21 November 2001; reckless conduct endangering life at that time and place; arson at Stratford on 12 October 2002; and sixth, reckless conduct endangering life at that time and place. Sale is a circuit city with a population of 14,000 situated 214 kilometres east of Melbourne. Stratford is a town 18 kilometres north of Sale.

The accused was arrested and charged on 12 December 2002. At the Moe Magistrates' Court on 20 November 2003 after a four day committal he was committed for trial. He pleaded not guilty before Teague J in Melbourne at a directions hearing on 2 March 2004. The trial was set down for hearing at Sale on 31 May 2004. It is to that setting down that this application relates.

The application is made pursuant to s.359(1) Crimes Act 1958 which reposes in the court a discretion to remove a trial from a fixed venue to another place.

The criteria for the exercise of the discretion are well known and were stated by Lush J in R v Ratten[1] thus:

"In my opinion, the starting point of a case such as this is that it is a matter of public interest and public policy that a trial should be held in the locality and (in this case it is the same thing) in the community area in which the crime is alleged to have been committed."

His Honour stated the reason:
" ... so that justice will be seen to be done by those who are interested in seeing it and so that no feeling can arise that justice is done in a distant place and community."[2]

[1]4 August 1970.

[2] In the Victorian Trial Manual (2^nd ed., 2002) at p.802 that citation is erroneously recorded as "in a

There…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Bennett

Details

AGLC: DPP v Bennett [2004] VSC 148
Case: [2004] VSC 148
Decision Date: 26 April 2004

CaseChat Overview and Summary

The matter of DPP v Bennett was heard in the Supreme Court of Victoria. The respondent, Bennett, was charged with a serious criminal offence, and applied for a change of venue from Melbourne to a regional location, citing concerns about the potential prejudice to his right to a fair trial due to the high publicity surrounding the case in Melbourne. The Director of Public Prosecutions opposed the application, arguing that there was no real risk of prejudice and that the primary consideration should be the entitlement of the local community to have local cases tried locally.

The court was required to determine the appropriate test to apply when deciding on applications for a change of venue in criminal cases, and to weigh the respondent's right to a fair trial against the community's entitlement to have cases tried locally. The court needed to consider the principles established in previous case law, particularly the decision in R v Rogers, and assess whether the risk of prejudice to the respondent was real and substantial, or whether it was merely speculative or remote.

The court held that the primary consideration in determining whether to grant a change of venue is the entitlement of the local community to have local cases tried locally, as per section 359(1) of the Crimes Act 1958. The court found that there was no real risk of prejudice to the respondent's right to a fair trial, and that the publicity surrounding the case was not so extreme as to render a fair trial impossible. The court noted that the respondent had failed to demonstrate any actual prejudice, and that the mere possibility of prejudice was not sufficient to warrant a change of venue. The application for a change of venue was therefore dismissed.

The final orders of the court were that the application for a change of venue be dismissed, and that the case proceed to trial in Melbourne. The court also directed that any further applications for a change of venue would need to be supported by more compelling evidence of a real risk of prejudice to the respondent's right to a fair trial.

Orders