DPP v Towle (Ruling no 1)

[2007] VSC 551

IN THE SUPREME COURT OF VICTORIA

CRIMINAL DIVISION

No. 1460 of 2007

DIRECTOR OF PUBLIC PROSECUTIONS

v

THOMAS TOWLE

Ruling No 1

JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 December 2007
DATE OF RULING:	20 December 2007
CASE MAY BE CITED AS:	DPP v Towle (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2007] VSC 551

---

Criminal law and procedure – six counts of culpable driving causing death – four counts of causing serious injury negligently – related counts – jury trial – venue – considerations applicable to hearing of trial in area of offences – jury trial to be held in Melbourne not Mildura – videocasting of trial to Mildura – considerations applicable.

---

APPEARANCES:	Counsel	Solicitors
For the Director	Mr M Gamble SC with Ms A Forrester	Office of Public Prosecutions
For the Accused	Mr R Richter QC with Ms K Blair	Victorian Aboriginal Legal Service

---

HIS HONOUR:

1. The accused, Mr Thomas Towle, is charged with six counts of culpable driving causing death, four counts of causing serious injury negligently, and related charges arising out of one episode of the driving of a motor vehicle by the accused on Saturday 18 February 2006 at Red Cliffs, south of Mildura, Victoria.  At approximately 9.50 pm on 18 February 2006 the accused was driving a 1991 Ford station wagon in a 100km zone in an easterly direction on Myall Street, Cardross, south of Mildura. The vehicle crossed the intersection with Boobook Avenue, which runs north to south.  East of Boobook Avenue (and where the deaths and injuries occurred) the location is Red Cliffs.  Stop signs applied to traffic in Boobook Avenue at its intersection with Myall Street.  Travelling on Myall Street west to east, there is a deviation of that street somewhat to the right approaching Boobook Avenue.  It is alleged that the accused’s vehicle lost control and ran into a group of young persons on or near the southern side of Myall Street (that is, on the opposite side of Myall Street from which the accused’s vehicle had been travelling) east of the intersection.  Tragically, six of the young persons were killed and a number of the survivors were grievously injured.  The accused decamped the scene by foot, leaving his own little children – who had been with him in his vehicle – behind, and at 3.20 a.m. the next morning was arrested.  After police interview, he was charged with the present offences.  The circumstances of the driving will be the subject of evidence at trial and I make no further reference to them in this Ruling.

1. A committal hearing was conducted in the Mildura Magistrates’ Court from 19 to 27 March 2007.  On 27 March 2007 the learned Magistrate committed the accused for trial on all counts.  At the submission of the Director which was not opposed by senior counsel for the accused, Her Honour committed the accused for trial in this Court at Melbourne.  Presentment was filed in this Court on 5 June 2007.  On 3 December 2007 the accused was arraigned in this Court and pleaded not guilty to all counts.  The trial is listed to commence on 29 January 2008, the first day of First Term of 2008.

1. The first matter for consideration is the venue of the jury trial.  As I have said, the learned Magistrate, at the submission of the Director and not opposed as to venue by the accused, committed the accused for trial in Melbourne.  Both the Director and the accused before me maintain that position.

1. Under the common law and s.359(1) Crimes Act 1958 it is the responsibility of the Court to determine, in accordance with proper principle, the venue of trial.

1. Proper principle provides that other than in exceptional circumstances trials should be held in the vicinity of the constituent events.  That is because the local community has a legitimate and especial interest in the proceedings, should have the law administered in that community, and should not be disenfranchised.[1]  These are weighty considerations and which should not be put aside save in exceptional circumstances.  Mere local publicity of a substantial kind is not enough to remove trials from their proper locale.

   [1]See generally DPA v Bennett (2004) 10 VR 355 and the authorities reviewed therein.

1. Further, sensitive consideration should be given by the court to the burden (geographically and emotionally) and expense upon persons connected with the proceedings of having the trial removed from its proper locale.  The persons whose interests should be so considered pre-eminently comprehend the victims and their families, the accused and the accused’s family, and witnesses.  The local community’s ability to attend the hearing also is of especial importance.

1. Applying those principles to the present case, it is plain that but for exceptional circumstances the trial should be held in Mildura.

1. There are three particular circumstances that need to be attended.  First, fairness of trial.  It is an essential of the criminal process that every accused receive a fair trial and that any verdict delivered be based solely upon the evidence led in court.  The city of Mildura and the district of Sunraysia have a long and proud history of independence, resilience and decency.  I have no doubt that those commendable qualities would be exhibited by a jury randomly chosen from Mildura and Sunraysia and that the accused would receive a fair trial were the trial held there.  Second, security.  The court has a duty to provide, and does provide, proper security for the hearing of trials including very emotionally charged trials.  I have no doubt that proper security would be provided were the trial held in Mildura, just as it would in Melbourne.  The question of venue, however, in the end falls to be determined by a third factor:  balance and representativeness of the jury panel from which the jury randomly is to be selected.  There are an exceptionally large number of victims in this case, deceased and living, direct and indirect.  Personally, and through schooling, sport and community activity the victims and their families are widely known in Mildura and Sunraysia and persons touched by this trial are widely spread through the local community.  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.  That is no-one’s fault and no fault of anyone connected with the case.  It is a simple demographic fact.  For that reason, and that reason alone, I have concluded that it is necessary that the jury trial be held in Melbourne.  There is no court location of appropriate size near Mildura.  Accordingly I direct that the trial of the accused be held in Melbourne.  It shall commence on 29 January 2008 for pre-empanelment submissions and the jury will be empanelled on 1 February 2008.  The opening by the prosecution and response by the defence will be on 4 February 2008.  It is anticipated that the jury trial will be some five weeks in duration.

1. Conscious as the court is to the burden upon and dislocation to victims and their families and the accused and his family, as well as upon the many other persons affected by the trial, special arrangements are being put in place in Melbourne properly to care for witnesses and victims and their families and the family of the accused.  I hope and intend that those arrangements will give those persons physical and emotional support throughout the trial.

1. A corollary of the above is the question of videocasting the trial proceedings to the Mildura court to enable persons in Mildura concurrently to view the proceedings.  Having considered that matter I have concluded that it is not practicable to do so in all the circumstances.  I have every confidence that the citizens of Mildura and Sunraysia will be well served by media dissemination of the proceedings, including by the Sunraysia Daily.  The court will provide every appropriate assistance to the media in their important function of being the window of the court to the community.

---