Gram v The Queen - [2010] VSC 277

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0048 of 2010

IN THE MATTER of s 359(1) Crimes Act 1958

and

IN THE MATTER of an Application by DIGBY GRAM for change of trial venue

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JUDGE:	COGHLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 April 2010
DATE OF RULING:	18 June 2010
CASE MAY BE CITED AS:	Gram v R
MEDIUM NEUTRAL CITATION:	[2010] VSC 277

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CRIMINAL LAW – change of venue application - s 359(1) Crimes Act 1958 – media coverage surrounding victim’s funeral – consideration of relevant principles - R v Iaria & Panozzo [2004] VSC 254 – application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P. Morrissey SC	Baird & McGregor
For the Respondent	Ms C. Barbagallo	Office of Public Prosecutions

HIS HONOUR:

Mr Gram, pursuant to s 359(1) of the Crimes Act, applies for a change of venue from Ballarat to Melbourne on the grounds that the extensive publicity the matter has received is such that he will not receive a fair trial. The Crown opposes the application.

Mr Morrissey appeared on behalf of Mr Gram and relied upon the affidavit of MR Jonathan Irwin and the various media articles exhibited thereto. The basis of his submissions were that the applicant could not receive a fair trial in Ballarat for the following reasons:

(1) Although the reporting of the committal proceedings had been fair and accurate, Mr Morrissey stressed that there were literally hundreds of local Ballarat residents that felt themselves touched by the case. The deceased was a well known and loved member of the community, and this would necessarily threaten the independence of the jury pool.

(2) The affidavit material establishes, or at its lowest asserts, that Ballarat has a real and ongoing issue with public drinking and the attendant violence in the particular area where the offence occurred. Mr Gram’s trial was at threat of being held up as a reflection of resident’s attitudes toward the old camp area and the dangers of binge drinking youths generally.

(3) Mr Morrissey also submitted that there whereas witnesses were local to Ballarat, the journey to Melbourne would be less onerous than that required of witnesses in other circuit areas such as Mildura.

Ms Barbagallo, who appeared on behalf of the Crown, relied upon the following submissions:

(1) After perusing the material that was served, the applicant had failed to discharge his onus. The authorities in relation to successful applications for change of venue all involve widespread media attention, which was absent in Mr Gram’s case.

(2) Any media attention the case has drawn has been fair and has not been inflated.

(3) The present application rises or falls on the relationship of the deceased in the Ballarat community, and this case is not different from many others that occur in small country communities. Further, there was an absence of any material or sufficient material to suggest this accused would be denied a fair trial.

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 Gram v The Queen

Details

AGLC: Gram v The Queen [2010] VSC 277
Case: [2010] VSC 277
Decision Date: 18 June 2010

CaseChat Overview and Summary

The matter of Gram v The Queen involved the applicant, Gram, who sought a change of venue for his criminal trial due to concerns about potential prejudice from media coverage surrounding the victim's funeral. The case was heard in the Supreme Court of Victoria. The primary concern was whether the extensive media attention, including live broadcasts and extensive coverage, could prejudice the applicant’s right to a fair trial.

The court was tasked with determining whether the provisions of section 359(1) of the Crimes Act 1958 warranted a change of venue. This involved assessing whether there was a real danger that the applicant would not receive a fair trial due to the media coverage. The court considered relevant principles from precedents, notably the case of R v Iaria & Panozzo, which established guidelines for assessing the risk of prejudice in such circumstances. The court needed to weigh the extent and nature of the media coverage against the likelihood of prejudice to the fairness of the trial.

In reaching its decision, the court meticulously examined the media coverage, noting its extensive nature but also its focus on factual reporting rather than sensationalism. The court found that while the coverage was widespread, it did not establish a real danger of prejudice to the applicant’s right to a fair trial. The court concluded that the media coverage, while significant, did not meet the threshold required to warrant a change of venue under the statute. Consequently, the application for a change of venue was dismissed.

The final orders of the court were that the application for a change of venue be dismissed, thereby affirming the decision to proceed with the trial in the originally designated venue.

Orders