Nicholas v The Queen

[1990] TASSC 65

Serial No 63/1990
List "A"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Nicholas v R [1990] TASSC 65; A63/1990

PARTIES:  NICHOLAS
  v
  R

FILE NO/S:  M52/1990
DELIVERED ON:  27 September 1990
JUDGMENT OF:  Underwood J

Judgment Number:  A63/1990
Number of paragraphs:  12

Serial No 63/1990
List "A"
File No M52/1990

NICHOLAS v THE QUEEN

REASONS FOR JUDGMENT  UNDERWOOD J

27 September 1990

1. The applicant, together with a co–accused, was committed to stand trial in the Supreme Court Launceston. By the indictment, the applicant and the co–accused are jointly charged with one count of burglary and one count of stealing. On behalf of the applicant, application is made to change the venue of the trial to Hobart. The application is opposed by the Crown and the co–accused.

1. The crimes charged relate to an alleged burglary of, and theft from, the home of a prominent Tasmanian grazier living at Ross. The burglary and theft is alleged to have occurred whilst the owner of the property and his family were attending the funeral of the owner's wife who had died a few days earlier. The application is based on the proposition that the applicant will not get a fair trial in Launceston. It arises in this way. In 1988 the accused was tried on several counts alleging that he, or another, forged the will of a deceased person in which it was provided that the applicant be the sole beneficiary of a sizeable estate. The trial commenced in the Supreme Court Launceston on 18 February 1988. It concluded on 10 March 1988 with the applicant's conviction for conspiracy to defraud. The appellant appealed against the conviction. The appeal was allowed. He was re–tried in Hobart in December 1988 and again convicted. He again appealed but that appeal was dismissed.

1. The first trial attracted considerable publicity in the Examiner newspaper. "Samples" of clippings from that newspaper were handed up in support of the application. The co–accused is mentioned in one of those accounts. At the trial he was called as a witness for the Crown. The last of such clippings which reported the imposition of a sentence of 15 months imprisonment appeared on 15 March 1988. No publicity, or at least no significant publicity, was given to the appeals or the re–trial.

1. On behalf of the applicant it was submitted that the applicant's former trial and the pending one have a similarity in that they both concern thefts or acts of dishonesty consequent upon the death of a person and that, the level of publicity given the first trial was such that there is a real possibility that jurors summoned to try the present issue will be likely to remember the earlier matter and their deliberations thereby tainted.

1. The applicant carries the onus of making out sufficient grounds for the order sought. See R v Phillips, Chambers J 7970. It is "no doubt a heavy one", per Holmes J in R v Cattell [1968] NSWR 156 at 159. See also R v Dorrington [1969] 1 NSWR 381; Lemon v. Attorney–General (1932) 50 WN(NSW) 19.

1. In R v L (1989) 43 A Crim R 51, Kearney J surveyed the relevant authorities and said at 54:—

"This brief survey of some of the cases on change of venue illustrates that only when good cause is shown should the basic approach that trials be held where the crime is alleged to have been committed, not be followed."

1. With respect to media publicity, the case of R v Kray & Ors (1969) 53 Crim App R 412 is useful although that case concerned the right to challenge individual jurors and was not an application for a change of venue. In that case two of the accused were convicted of murder on 4 March 1969. The verdicts attracted considerable publicity. On April 15 1969 these two accused were indicted for three offences, one of which was murder. Lawton J said at 414:—

"What is more, the mere fact that a newspaper has reported a trial and a verdict which was adverse to a person subsequently accused ought not in the ordinary way to produce a case of probable bias against jurors empanelled in a later case. I have enough confidence in my fellow–countrymen to think that they have got newspapers sized up just as they have got other public institutions sized up, and they are capable in normal circumstances of looking at a matter fairly and without prejudice even though they have to disregard what they may have read in a newspaper. So, the mere fact that an earlier trial had been reported at length in the Press would not, in my judgment, amount to establishing a prima facie case of the probability of bias or prejudice in anyone summoned to attend as a juror for a later trial."

1. His Honour's remarks are apposite to this application.

1. The last relevant media publicity concerning the applicant's previous trial appeared 2½ years ago. None of that publicity suggested that the present co–accused was implicated in the commission of the crime of which the applicant was convicted. There is nothing before me to suggest that the applicant is a person of particular prominence in the Launceston community so that prospective jurors thereby would have special reason to recall the earlier conviction. There is no special circumstance which leads to the likelihood or even possibility that jurors summoned from the Launceston community to try the pending issue would not be obedient to the direction that they are to try the guilt of the accused and the co–accused upon nothing other than the evidence that they hear on the trial.

1. Although the crime of which the applicant was convicted in 1988 was unusual, its facts bear no special resemblance to the facts of the present case other than in the present case it is alleged that the thieves chose as opportune, the time when the owner was absent from his house at his wife's funeral.

1. I am quite unpersuaded that the applicant has discharged the onus he carries of establishing that it is unlikely, by reasons of the matters I have referred to, that an impartial jury cannot be empanelled and thereafter act in obedience to the oath each of them will take.

1. If the application is granted the trial will be delayed, an event opposed by the co–accused. The majority of the witnesses to be called for the Crown reside in the Launceston area. In all these circumstances the application is dismissed.