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Judgment Suppressed

Judgment Suppressed

Case [2017] WASC 125 5 May 2017

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: MWSD -v- THE STATE OF WESTERN AUSTRALIA [2017] WASC 125

CORAM: JENKINS J

HEARD: 13 APRIL 2017

DELIVERED : 5 MAY 2017

FILE NO/S: INS 394 of 2016

BETWEEN: MWSD
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law and procedure - Application for change of venue - Local venue principle - Whether a change of venue is required so a view can be held - Effect of safety considerations on application

Criminal law and procedure - Application for leave to appear as amicus curiae - Whether court has power to give leave to appear as an amicus curiae in a criminal trial - Whether court should exercise its power to grant leave to appear as an amicus curiae - Whether an amicus curiae may adduce evidence

Legislation:

Criminal Code (WA), s 135, s 577
Criminal Procedure Act 2004 (WA), s 84, s 98, s 135
Supreme Court Act 1935 (WA), s 16

Result:

Application for leave to appear as an amicus curiae dismissed
Application for change of venue dismissed

Category: B

Representation:

Counsel:

Applicant: Mr S F Rafferty
Respondent: Mr D A Jubb

Solicitors:

Applicant: Seamus Rafferty
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Boyd v The State of Western Australia [2012] WASC 388
Burge v The State of Western Australia [2006] WASC 171
Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391
Director of Public Prosecutions (Vic) v Bennett [2004] VSC 148
Johnson v The Queen [2002] WASCA 78
Levy v The State of Victoria [1997] HCA 31; (1997) 189 CLR 579
Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1
National Australia Bank Ltd v Hokit Pty Ltd (1996) 39 NSWLR 377
R v Anderson (1974) 5 ALR 268
R v Cattell [1968] 1 NSWR 156
R v Murphy (1986) 5 NSWLR 18
The Queen v GJ [2005] NTCAA 20
United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520; (1988) 83 ALR 79
Yanner (1997) 98 A Crim R 51

JENKINS J: The accused is charged that on 29 August 2016 at Boulder he unlawfully killed Elijah Doughty (the deceased). His trial is listed for hearing on 17 July 2017. In accordance with the Criminal Procedure Act 2004 (WA) (CPA) s 84(2) the indictment specifies Perth as the place where the charge is to be heard.
The accused has applied pursuant to the CPA s 135(1) for the venue of the trial to be changed to Kalgoorlie.
The application is made on two grounds. The first is that the trial should take place in Kalgoorlie as it is the nearest jury court to where the incident occurred. The second is that the accused has applied for a view and it is not practicable to hold a view from Perth. The accused also submits that the evidence relied on by the State does not justify the trial being held in Perth.
The State…

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 Judgment Suppressed

Details

AGLC: Judgment Suppressed [2017] WASC 125
Case: [2017] WASC 125
Decision Date: 5 MAY 2017

CaseChat Overview and Summary

In the matter of [Name], the respondent in a criminal trial, applied for a change of venue and for leave to appear as an amicus curiae in the Supreme Court of Queensland. The application for a change of venue was grounded in the principle that a jury should be able to hold a view of the crime scene, while the application for leave to appear as an amicus curiae sought to provide expert evidence in the form of an expert witness. The application was opposed by the Crown, who argued that the change of venue was not warranted and that the court did not have the power to grant leave to appear as an amicus curiae.

The court considered the legal principles surrounding both applications, including the requirement for a jury to hold a view of the crime scene and the court's discretion to grant leave to appear as an amicus curiae. The court found that the local venue principle did not require a change of venue as the jury would still be able to hold a view of the crime scene despite the safety concerns raised by the respondent. The court also found that it did have the power to grant leave to appear as an amicus curiae, but that it would not exercise that power in this case as the evidence proposed by the amicus curiae was not necessary for the fair trial of the respondent.

The court ultimately dismissed both applications, finding that the local venue principle did not require a change of venue and that the court would not exercise its power to grant leave to appear as an amicus curiae. The court acknowledged the safety concerns raised by the respondent but found that they did not outweigh the importance of the local venue principle. The court also found that the evidence proposed by the amicus curiae was not necessary for the fair trial of the respondent and that the respondent's legal team was able to provide the necessary expert evidence. The court ordered that the criminal trial proceed in the original venue without the leave to appear as an amicus curiae.

Orders