DPP v Towle (Ruling no 11)

[2008] VSC 64

IN THE SUPREME COURT OF VICTORIA Not Restricted

CRIMINAL DIVISION

No. 1460 of 2007

DIRECTOR OF PUBLIC PROSECUTIONS

v

THOMAS GRAHAM TOWLE

Ruling No. 11

JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 March 2008
DATE OF RULING:	13 March 2008
CASE MAY BE CITED AS:	DPP v Towle (Ruling No 11)
MEDIUM NEUTRAL CITATION:	[2008] VSC 64

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Criminal law and procedure – jury trial – verdicts of guilty of dangerous driving causing death (6 counts) and dangerous driving causing serious injury (4 counts) – constituent events in Cardross and Red Cliffs – jury trial in Melbourne – application by prosecution that plea and sentence be remitted for hearing in Mildura – considerations applicable – application refused.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	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

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Ruling No. 11

HIS HONOUR:

1. The constituent events in this case occurred in Cardross and Red Cliffs, just south of Mildura. On 20 December 2007 in Ruling No. 1 I directed under s.359(1) Crimes Act 1958 that the trial be held in Melbourne; solely because, given the very large number of victims and afflicted persons, it would have been difficult in Mildura to have a representative jury with no knowledge of or connection with the case. Accordingly the trial was held in Melbourne, commencing on 1 February 2008. On 9 March 2008 the jury returned verdicts of guilty on the alternative counts to counts 1 to 10, namely of dangerous driving causing death (counts 1-6) and dangerous driving causing serious injury (counts 7-10), and of not guilty on the other counts. Next week submissions as to sentence are to be heard.

1. The prosecution has applied for the plea and sentence to be heard in Mildura, as the considerations guiding the removal of the jury trial no longer apply and the legitimate interests of the many persons affected by the trial warrant the matter being remitted to Mildura for the completion of the process.  The defence has opposed the application, submitting that the principles of regularity and of unity of proceedings require that the curial process once commenced in Melbourne should run its course in Melbourne.

1. I am conscious of the very heavy burden placed upon victims and their families and loved ones by the proceedings being heard in Melbourne.  However, having considered the matter overnight, I have concluded that the defence submission is correct.  I have researched the matter and can find no instance in the history of the Court in which a jury trial has been heard to completion in Melbourne and then the plea and sentence remitted to the regional city of origin.  I think the principles of regularity and of unity of proceedings require that the balance of these proceedings remain in Melbourne.  Accordingly I so direct.

1. Unfortunately something else needs be said.  Yesterday in submissions, senior counsel for the accused stated “I don’t fancy walking into court and being spat on” (T.2210).  That was an irresponsible statement and should not have been made.  I have no doubt – none whatsoever – that if held in Mildura the proceedings would be conducted in a proper and orderly way.  The many grieving and afflicted families involved in this case have conducted themselves with the most admirable dignity throughout.  The city of Mildura is a fine city with fine citizens.  Counsel’s comment should not have been made.

1. In order to assist persons in Mildura to observe the proceedings, the Court shall arrange for contemporaneous  video transmission of the plea and sentence to the Mildura court.  The court regularly receives evidence by video link and the method, although two-dimensional, is of utility.  Any witnesses from Mildura to be called during the plea may give evidence from Mildura to Melbourne by video link.  Further, for those good persons who come from Mildura to Melbourne for the balance of the proceedings, arrangements are being made for their proper care and consideration at the Court in Melbourne.

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