R v BELL
[2019] SADC 45
•1 March 2019
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BELL
[2019] SADC 45
Reasons of His Honour Judge Brebner
1 March 2019
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - CONCURRENT JURISDICTION OF DIFFERENT COURTS
Accused committed for trial to Circuit Sitting of the District Court at Mount Gambier on multiple counts of theft and related charges. Sitting time required to complete trial likely to interfere with scheduling of future Circuit Sittings of the Court. Application by DPP for Change of Forum and Change of Venue.
Held:
1) Trial not sufficiently complex to warrant attention of Supreme Court. Application to change forum rejected
2) Maintenance of regular scheduling of Circuit Sittings prevails over countervailing considerations. Application for change of venue granted.
District Court Act 1991 ss 22(c) & 24(2); Criminal Procedure Act 1921 ss 118(2) & (5); District Court Criminal Rules 2014 R 265(3), referred to.
R v Harris and Daly (No 2) (1975) 12 SASR 270; R v Johnson (1978) 19 SASR 157; R v Ford [1945] SASR 118; Brown v DPP [2018] NSWCCA 94; DPP v Bennett (2004) 10 VR 355; R v Turnbull (No1) [2016] NSWSC 189; State Pollution Control Commission v Australian Iron and Steel Pty Ltd (1993) 29 NSWLR 487; Rona v The District Court of South Australia and The State of South Australia (1995) 63 SASR 223; DPP v King [2019] SASC 42, considered.
R v BELL
[2019] SADC 45
The accused is charged with 20 counts of theft and six counts of dishonest dealing with documents. It is alleged that he committed the offences in the South East and he was committed for trial to the circuit sittings of the District Court at Mount Gambier accordingly.
The Director of Public Prosecutions sought orders changing the forum for trial to the Supreme Court and transferring the venue for trial to Adelaide. Both applications were opposed.
Counsel for the prosecution, Mr Norman SC, estimates that the trial will occupy some three months sitting time and he submitted, inter alia, that the complexity of the trial warrants the attention of the Supreme Court, that the accused and other people connected with the trial will be known to many potential jurors in the South East thus making it extremely difficult to empanel a jury at Mount Gambier and that the Mount Gambier Courthouse is inadequate for the proper conduct of the trial.
Counsel for the accused, Mr Griffin QC, and then Mr DeGaris, contend that the trial is not as complex as suggested, that the prosecution’s estimate of three months is pessimistic, that any difficulties in empanelling a jury can be easily overcome, that with the possible addition of temporary furniture the Mount Gambier Courthouse is equal to the task, that the presumption that trials should be conducted in the locality where the crimes are said to have been committed should stand and that the accused will incur significant additional expense if the trial is transferred to Adelaide.
The hearing of the applications was adjourned on a number of occasions due to circumstances beyond the control of the court or counsel. After hearing submissions, I rejected the application to transfer the trial to the Supreme Court and granted the application for it to be held in Adelaide. I also gave the accused liberty to apply to the trial judge on the issue of the venue for trial. My reasons follow. Some weeks after I made the orders another judge of the court listed the trial to commence in October 2019.
Background
The prosecution alleges that between July 2009 and December 2013, at Mount Gambier, the accused, or entities controlled by him, were entrusted with funds totalling some $1,500,000 by a number of entities under the umbrella of the Education Department in order that he apply the funds to the purposes of specialised educational programs conducted by some the local high schools and that he converted some $800,000 of these funds to his own use or benefit by committing the alleged thefts and that he also created a number of misleading documents in order to cover his tracks. It is also alleged that he converted a further $1,450,000 by committing a further 20 to 100 thefts which are not the subject of charges. The prosecution proposes to lead evidence of these uncharged acts in aid of proof of the charges themselves.
The accused is the Member of Parliament for the electorate of Mount Gambier. He was elected some six months after the last of his alleged crimes is said to have been committed and the investigation into his activities commenced a further six months later. He is extremely well known in Mount Gambier and the surrounding areas. The trial is analogous to large scale commercial litigation and the course of conduct alleged is complicated. The prosecution brief currently runs to over 30 lever arch folders and Mr Norman anticipates calling some 35 witnesses and tendering about 450 exhibits including bank statements which run to thousands of pages. Storage of exhibits and copies for judge, jury and counsel will be an issue. Mr Griffin submits that the prosecution brief can be reduced to about 10 volumes and if duplicated material is excluded this may well be so. There is significant scope for evidence to be agreed, thus reducing the amount of documentary material to be tendered and the number of sitting days required but no agreements have been reached as yet and there is no guarantee that they ever will. Mr Norman also submits that the maximum three additional jurors ought to be empanelled and Mr Griffin does not contend otherwise. The prosecution will require leave to lead the evidence of the uncharged acts but whether there will be any other pre-trial issues is uncertain as yet.
The prosecution will have to trace a great many discrete sequences of events from beginning to end in order to prove its case and even more if the evidence of the uncharged acts is admitted. Without being exhaustive, this will include proving that the relevant funds were raised and ultimately entrusted to the accused or to one of his entities, that he then converted the funds to his own use or benefit and how the funds were disposed of to this end. There will be bank statements which will have to be compared in detail as the trial unfolds and if, as Mr Norman anticipates, a forensic accountant is called he or she could well be giving evidence for many days. Moreover, Mr DeGaris foreshadows a defence case of some 12 witnesses and closing addresses and the summing up can reasonably be expected to occupy many sitting days.
Progress will be slow if the prosecution is put to strict proof of each aspect of its case and, in my view, should none of the evidence be agreed the trial will occupy considerably more sitting time than the prosecution’s current estimate of three months.
Forum
I start with the application for a change of forum. Section 24(2) of the District Court Act 1991 (DCA) confers a discretion on the court to transfer criminal proceedings to the Supreme Court. Section s118 (2) of the Criminal Procedure Act 1921 (CPA) also confers a second discretion to transfer proceedings to the Supreme Court if the court is ‘of the opinion’ that a person committed for trial to the District Court ‘should’ be tried in the Supreme Court. In determining such an application Rule 265 (3) of the District Court Criminal Rules 2014 requires the Court to ‘have regard to’ the criteria set out in s118 (5) of the CPA namely the ‘gravity of the case’, ‘the difficulty of any question of law or fact’ said to be involved, the views of the parties and any other ‘relevant consideration’ and to the availability of judges in each court ‘to preside over criminal trials’.
The discretion to order a change of forum has existed in one form or another for many years. Two decisions in the 1970’s construing a legislative predecessor to s118(5) which was in terms which were materially consistent remain relevant.
In R v Harris and Daly (No 2) (1975) 12 SASR 270 Sangster J held that the ‘gravity’ of the case is to be determined by reference to the circumstances of the case as a whole including the nature and seriousness of the offence charged and the maximum penalty and that any ‘complexity, difficulty or uncertainty’ (being the words of the relevant provision) of fact or law must be substantial before a change of forum can be justified. His Honour also observed that the ‘substantial legal qualifications of the judges’ of the District Court cannot be overlooked.
In R v Johnson (1978) 19 SASR 157 King J (as he then was), similarly held that the gravity of the case and the degree of ‘complexity, difficulty or uncertainty’ of fact or law said to be involved must be substantial before the attention of the Supreme Court is warranted.
It follows the trial of charges within the jurisdiction of the District Court will not lightly be transferred up.
There is no doubt that the overall course of conduct alleged against the accused is grave and that he will be facing a significant term of imprisonment should he be convicted.
If the trial follows the pattern of the large scale frauds of its kind, it is likely that pre-trial issues of joinder and cross-admissibility could arise along with the admissibility of the uncharged acts and the trial judge could well be required to sum-up on these issues however, none of this is out of the ordinary and the principles engaged are well settled.
The number of charges and uncharged acts and the potential length of the trial and the sheer volume of the anticipated evidence cannot of themselves demonstrate relevant complexity. Moreover, and notwithstanding that the accused’s modus operandi is said to vary from time to time, relating the facts to the law in summing up will be time consuming rather than complex and the trial judge will be required to apply settled principle to a very significant body of evidence and nothing more. As Mr Griffin put it, the anticipated evidence is ‘readily comprehensible if things are taken carefully and slowly.’ Moreover, the District Court hears complex cases of dishonesty and cases of commensurate complexity involving allegations of other offences on a regular basis and it has done so for many years. Furthermore, there are several judges of the District Court who have considerable experience with trials such as this and I observe in passing that some of them also hold auxiliary appointments as justices of the Supreme Court.
In short, the trial (including any pre-trial issues which may arise) will not be of sufficient complexity, as that expression is properly to be understood, to warrant the attention of the Supreme Court. The application for a change of forum is rejected accordingly.
In conformity with Rule 26(3), I consulted the Honourable the Chief Justice when I first embarked on the application. There was then little or no prospect of the trial being held in the Supreme Court and there is no reason to think that the situation has changed since then. In any event, even if a justice of the Supreme Court was available, I would remain of the view that the trial would not warrant his or her attention.
Venue
Turning to the application for a change of venue: Section 22(c) DCA confers discretion on the Court to ‘order the transfer of proceedings from place to place.’ This discretion has also existed in one form or another for many years and the principles which inform its exercise are well settled.
In R v Ford [1945] SASR 118 it was accepted that a transfer could be granted on utilitarian grounds and in the context of a provision of the Supreme Court Act 1935 which is materially indistinguishable to s 22 DCA, Mayo J observed at 120-122 that ‘provided there are circumstances capable of being properly regarded as reasons for an order the question of the adequacy of such reasons, and the propriety of making an order, are for the judge to whom the application is made.’ An application for a change of venue will be granted for any reason which is expedient: Brown v DPP [2018] NSWCCA 94. The categories of relevant considerations are not closed: Ford at 121-122. It accepted that there are ‘powerful reasons of public policy’ why trials should be conducted in the locality where the crime is said to have been committed and where the witnesses live and that the local community have the right to expect that the trial will be conducted locally: DPP v Bennett (2004) 10 VR 355. This gives rise to a presumption that trials will be conducted locally however, it is a rule of practise and not a rule of law and whether the presumption stands will turn on the circumstances of the individual case in the sense that what is involved is a practical consideration of matters bearing on the balance of convenience as to where the trial should be held including cost and location of witnesses and the availability of sufficient jurors in rural areas: R v Turnbull (No1) [2016] NSWSC 189 at [68]-[69], [72]. It is axiomatic that the discretion is to be exercised in the overall interests of justice and its exercise involves matters of fact, degree and common sense.
Jurors
Mr Norman submits that it will be extremely difficult to empanel a jury at Mount Gambier because of the likelihood that a great many potential jurors will know the accused, witnesses or other people or entities somehow connected with the trial or that their views of the accused might be coloured by his political activities.
His concerns are soundly based but they can be overcome short of a change of venue.
The city of Mount Gambier itself and the accused’s electorate and a neighbouring electorate are within the jury district from which the jurors for the accused’s trial will summonsed. It is estimated that there are some 40,000 people eligible for jury service resident in the district and ordinarily some 60 or so persons are summonsed to each circuit sitting of the court.
Mr DeGaris concedes that the accused ‘is a public figure’ with a local ‘profile’ and, in the circumstances, there can be no doubt that many potential jurors will be acquainted with him, or know of him or hold views about him one way or the other as a result of his political activities. There can also be no doubt that some jurors will also know some of the local witnesses or that they will have some familiarity with some of the entities involved.
The same issue was successfully overcome in a murder trial conducted at Mount Gambier some years ago by the expedient of summonsing a panel of 200 jurors.
It is likely that the issue will be more acute in this instance but in my view a panel of 300 would be sufficient from which to select an appropriate trial jury. If the courthouse cannot accommodate this number then the empanelment could take place in one of the local halls. Extra expense would be involved but I cannot see how the amount involved would be prohibitive.
The Mount Gambier Courthouse
Mr Norman then submits that the Mount Gambier courthouse is inadequate for the task.
There is only one courtroom at Mount Gambier fitted out for the conduct of jury trials (Court 1). It is not efficiently laid out and can become cramped but it is nonetheless adequate for the ordinary run of trials. Courtroom three (Court 3) in the criminal courts building in Adelaide has been specifically modified to accommodate long and complex trials. It offers greater comfort and efficiency for the conduct of trials such as this than any other courtroom in the State. Mr Norman thus contends that Court 3 is the only sensible option. Mr Griffin and Mr DeGaris accept Court 3 is superior but they submit, inter alia, that Court 1 is nonetheless adequate and any shortcomings, if any, cannot justify a change of venue.
I made observations of Court 1 during a recent circuit. Counsel were informed of my views and they agree that I may take my observations into account. The submissions otherwise proceeded on the basis that counsel and I are all familiar with Court 3.
It is anticipated that the jury will be given folders containing the documentary exhibits to enable them to follow the accounting evidence and to compare documents such as bank statements as the trial unfolds. Even if the number of folders required can be reduced, as Mr Griffin submits can be done, a large number of folders will still need to be stored in the courtroom at any one time even if some of them are stored outside the courtroom when not in use.
Court 3 is considerably larger than Court 1. It can accommodate several counsel and their materials with ease, there are no restrictions on the movement of court staff through the body of the court and there is a considerable amount of built-in shelving behind the bar tables. The bar table in Court 1 cannot accommodate more than three counsel without becoming cramped, there is no permanent shelving and there is little room for the installation of temporary shelves without restricting the movement of court staff. Court 3’s jury box comfortably holds 14 persons and there is adequate space for a 15th. Court 1’s jury box holds 13. It is said by the local sheriff’s officers that two temporary seats can be accommodated but in my view, this would lead to discomfort. There is shelving in Court 3’s jury box for ease of management of folders but Court 1 is deficient in this respect and there is insufficient space for its installation short of rebuilding the jury box. It was submitted that the jury could store some of their folders under their chairs in Court 1 but this would be somewhat clumsy and unconducive to easy management of the folders.
Mr Griffin suggests that some of these issues could be overcome by the use of electronic equipment including tablets for the jury. Whether this is a practical proposition was not explored in detail. In any event, the electronic equipment in Court 1 is unreliable and whether television screens and tablets would lend themselves to the comparison exercises which will be involved is problematic. Court 3’s electronic equipment is not perfect but it is superior to that of Court 1.
In these circumstances, I am not prepared to find that the issue of storage of exhibit folders can be overcome electronically. In any event, Mr DeGaris submits that this is not an electronic trial and that both cases will be best presented if the jury are provided with hard copies of the relevant documents for the comparison exercises which will be involved, and I agree.
In short, it follows that it is not a physical impossibility to conduct the trial in Court 1 but Court 3 is plainly the better option in that counsel and jury will be more comfortable, the movement of court staff and exhibits through the body of the court will be unrestricted, there is more storage space within the courtroom itself and it will be easier for the jury to manage and compare their exhibit folders in the jury box. For obvious reasons, the comfort of the jury is of considerable importance in a trial such as this.
Locality
I will commence Mr Griffin’s submissions with the presumption of locality.
It is probable that the trial will generate considerable interest in Mount Gambier and the surrounding areas but whether this will translate into significant numbers of people wanting to attend the trial cannot be predicted and if there is sufficient local interest it would seem likely that the local media will cover the proceedings in adequate detail.
In any event, the presumption is not a rule of law and is not in itself determinative of the issue of venue and although it is always important, the circumstances of the individual case can demand that it gives way to utilitarian considerations.
Expense
Mr DeGaris estimates that the accused will incur additional expense to the extent of some $120,000 if the trial is transferred to Adelaide and Mr Griffin submits that this is a burden the accused cannot be expected to bear.
The fact that a transfer will cause additional expense for the accused is a relevant consideration but it is not necessarily determinative of the issue: Turnbull at [72]. In other words, countervailing considerations may outweigh any additional financial burden which will be placed on an accused if the venue for trial is changed.
The accused lives at Mount Gambier and he has engaged a firm of local solicitors. Mr DeGaris is the principal of the firm. He has practised in the South East for many years and he is familiar with the costs which are likely to be incurred if a trial is transferred to Adelaide. In his experience, it is more cost effective for ‘clients to have their trial conducted locally’. If the trial is transferred to Adelaide then, in his opinion, the accused will be faced with additional costs for accommodation, office space, airfares, witness expenses and additional professional fees which would not arise if the trial remains at Mount Gambier.
Mr DeGaris’ estimates are predicated on the assumptions that the trial will run for three months and that the accused’s ‘team’ for the trial will be comprised of Mr Griffin, a senior solicitor, a junior solicitor and a paralegal.
Mr DeGaris says that should the trial be transferred to Adelaide, the solicitors and the paralegal will live and work in rented accommodation and office space in the city and commute to Mount Gambier by air at weekends. He anticipates that the accused would also live in rental accommodation in Adelaide and that further additional costs will be incurred in calling a number of defence witnesses who ordinarily live in Mount Gambier. Mr Griffin is cost neutral for the purposes of this exercise in that although he lives in Adelaide he has private accommodation available to him free of charge at Mount Gambier.
Mr DeGaris puts the total costs of accommodation, office space, air fares and some miscellaneous expenses for the solicitors and the paralegal at about $48,000. He puts witness expenses at about $12,000 and the accused’s accommodation costs at about $8,400. Whether the witnesses could give evidence via Audio Visual Link (AVL) was not canvassed in submissions however, I see no reason why this could not be done.
Mr DeGaris’ firm charges the services of the solicitors and the paralegal out at an hourly rate. He estimates that the total costs for their services will be some $50,000 to $60,000 greater if the trial is transferred to Adelaide and that in his experience there will be ‘palpable’ savings for the accused if the trial is held at Mount Gambier. Mr DeGaris explains that the time of the solicitors and the paralegal can be better managed at Mount Gambier than in Adelaide. He says that there will be occasions during the trial when they will not be required at court and that if the trial is held at Mount Gambier they can then fill in their time earning fees by working on other files at the firm’s premises whereas this cannot occur if the trial is held at Adelaide resulting in the accused being charged and the result will be that the accused will be charged the full daily rate for their time even though they will not be working on the trial. Obviously, the amount of these additional fees cannot be predicted with any certainty.
Ms Litster, who completed the prosecution’s submissions, did not challenge Mr DeGaris’ estimates but she submitted that the potential for the additional costs identified by Mr DeGaris can be ameliorated or eliminated by engaging Adelaide solicitors.
If this were to occur, then the time of the Adelaide solicitors could be managed such that there would be no additional cost to the accused when they were not working on his matter or that the potential for this to occur would be substantially reduced and the costs of accommodation, air fares and office space for the team would not arise. Moreover, further savings could be made by reducing the size of the team and I am of the view that this can be done without compromising the accused’s case. However, the accused would still be liable for his accommodation in Adelaide and possibly for the expenses involved in calling the anticipated witnesses if they do not give evidence via AVL.
Mr DeGaris accepts that his firm could cease to act and that the trial could be ‘farmed out’ to Adelaide solicitors. He nonetheless submits that the accused enjoys a right to the representation of his choice which the court should respect and it is implicit in his submission that this right is absolute and can never be overridden by utilitarian considerations.
There is no doubt that any accused has the right to choose his or her counsel and solicitors and that the courts will ordinarily accommodate his or her preferences. However, in my view, the right is not absolute and in these days of tight budgets, backlogs and a limited number of courtrooms, there will be occasions where an accused’s preferences must yield to broader utilitarian considerations of caseflow management provided always that the proper presentation of his or her defence is not thereby compromised and that he or she is not put to oppressive additional expense. I will return to this issue in the context of whether the trial has the potential to interfere with the orderly discharge of the circuit business of the court.
Personal Considerations
The accused is married with children. His elderly parents and his sister also live in Mount Gambier. There can be no doubt that standing trial on these charges is likely to be a stressful experience for him. If the trial is held at Adelaide he will be deprived of the support of his family and local friends. It is said that changing the venue for trial will create ‘a significant additional burden’ for him.
It is inevitable that standing trial for serious offences will be a stressful experience and it can readily be accepted that the accused would be better served if his family and friends are around him. However, there is no evidence that a change of venue might be harmful to his psychological health, or that it might compromise his ability to do justice to himself or that any additional stress might be more than he could reasonably be expected to bear.
Utilitarian Considerations
There are other utilitarian considerations involved.
There will be budgetary implications for the Court if the trial is held at Mount Gambier. If it runs for longer than the prosecution’s estimate of three months, as in my view it will, then the scheduling of the ordinary circuit sittings of the court will be disrupted.
Ms Litster submits that these considerations can properly be taken into account. Mr DeGaris submits that any financial implications for the court are the responsibility of Government and that the court will have plenty of time to reorganise the scheduling of the circuits should it become necessary to do so.
There is no doubt that the court must manage its financial and infrastructure resources as efficiently as possible. The budget is limited, the number of courtrooms set up for jury trials is limited and there is a backlog of cases in the criminal jurisdiction in both the city and circuit lists. It is therefore axiomatic that courtrooms must be utilised to maximum effect and a trial which could properly be transferred elsewhere cannot necessarily be given precedence over a number of other trials scheduled for hearing in the same courtroom if doing so will lead to inconvenience or prejudice to others. Indeed, if a trial which could be transferred is given precedence then those affected by any resultant delay could experience a justifiable sense of grievance.
Resources and caseflow management were in focus in State Pollution Control Commission v Australian Iron and Steel Pty Ltd (1993) 29 NSWLR 487. At 493-494 Gleeson CJ (Sheller JA, Badgery-Parker JA agreeing) said that principles of case management were relevant to the determination of an application for an adjournment and that it was critical that courts manage their lists so as to promote the ‘efficient dispatch’ of their business and that ‘in controlling their lists and the cases that come before them’ courts must have regard to ‘the interests of the community, and of litigants in cases awaiting hearing, and not merely to the concerns of the parties in the instant case’.
In reliance on State Pollution Control Commission Olsson J identified the overriding consideration in Rona v The District Court of South Australia and The State of South Australia (1995) 63 SASR 223 at [12] by saying that it has become critical that the courts manage ‘their judicial and other resources’ so as to obviate ‘undue prejudice, in the broadest sense of that word.’
These statements of principle plainly apply to the utilitarian considerations identified above, and whether refusing the transfer sought might be productive of inefficiency or prejudice must thus be considered and, if necessary, taken into account and weighed.
The relevant budget line allows for a specified number of criminal courts to run in Adelaide each month and for circuits to be run for a specified number of weeks of each year. The trial can be held at Adelaide without budgetary implications however, if it is held at Mount Gambier between the regular circuit sittings of the court then, and for as long as it runs, it will amount to an additional court for budgetary purposes and additional funding will be required. Whether the additional expenditure involved can be justified and whether the additional funding required will be available is unknown.
I have already concluded that if the prosecution is put to strict proof, the trial will run for considerably longer than three months and it is the court’s experience that trials such as this usually run for longer than anticipated. Indeed, Mr DeGaris properly concedes that even if some of the evidence is agreed the trial might still run for more than three months.
It will be seen that if this occurs then one of the regular circuits will be unable to commence on the appointed day.
If some of the evidence is agreed, then the sitting time required could be reduced significantly. I repeat that there is considerable scope for this to occur, but no agreements have yet been reached and there are no guarantees that they ever will. In addition, some of the prosecution evidence was obtained by virtue of a warrant issued pursuant to the Independent Commissioner Against Corruption Act 2012. In the recent case of DPP v King [2019] SASC 42 such warrants were held to be within power and thus valid. Whether there will be any further challenge to the warrant in those proceedings and whether a successful challenge might ultimately affect the admissibility of some of the evidence in this trial thus reducing the overall sitting time, required cannot be predicted.
It will be possible to estimate the sitting time required with greater accuracy once it is known whether any evidence will be agreed and whether there will be any challenge to the warrant and, if so, whether this will have any impact on the length of the trial. To this extent, the application is premature in that important considerations are as yet unclear. But in my view, determination of the application cannot be postponed pending the outcome of things such as these which might never occur.
In these circumstances, I must thus proceed on the basis of things as they currently stand and that the trial will run for considerably longer than three months. If the situation changes then the whole issue of the sitting time required can always be re-visited if necessary.
The court sits at Mount Gambier for four weeks in March of each year and for a further three weeks each July and October. This scheduling has been in force for many years. On the basis that the trial will run considerably longer than three months, if it is listed immediately after the conclusion of the October circuit it will be interrupted by the Christmas break and might well still be running when the March circuit is due to commence. If it is listed immediately after the March and July circuits, it will not be completed by the time the next circuit is due to commence.
The commencement dates for the circuits are fixed and made public well in advance. Those concerned, including the local magistrate, prosecution, counsel, local solicitors and police, all work around these commencement dates to some extent at least. The dates for the 2019 circuits were fixed many months ago and the dates for the 2020 circuits are likely to be fixed in the relatively near future.
It is not as simple as it sounds to re-schedule a circuit and considerable inconvenience and potential prejudice would flow if this trial were to delay the commencement of a circuit. The listing of trials for the circuit affected would become problematic in that trial dates could not be fixed with confidence until this trial was near an end and, in particular, witness availability would become an issue and the backlog of trials could well increase. Complainants and vulnerable witnesses might suffer emotional issues as a result of any delay and some of those affected might experience a justifiable sense of grievance if this trial were to delay the commencement of their matters when it could have been held in Adelaide, thus allowing their matters to proceed on time. Importantly, accused persons in custody could be prejudiced in that they could be put at risk of remaining in custody before their trials for longer than they otherwise would be.
These are risks that the court simply cannot afford to run.
I understand that other courts and tribunals sit in Court 1 between circuits but as there was no evidence about whether listing this trial between circuits would cause any inconvenience, I will therefore ignore the possibility.
Final Analysis
In my view, the current schedule for the circuit sittings of the court must be maintained if this can be done without oppression or prejudice to the accused.
If the trial is transferred to Adelaide the additional professional charges identified by Mr DeGaris can be eliminated if the accused’s solicitors transfer the conduct of the trial to city solicitors and / or counsel. There is no suggestion that this would compromise the presentation of the accused’s case and he would retain the benefit of Mr Griffin’s services in any event.
The accused would still be liable for his accommodation, and perhaps for the costs of calling his witnesses, but I do not think the costs he is likely to incur are oppressive. Indeed, it might be an appropriate case for the prosecution to undertake to meet the reasonable costs of the accused in these respects similarly to the undertaking it gave as to expenses in Ford. In any event, further savings could be made by calling the defence witnesses via AVL and by reducing the size of the defence team.
In all the circumstances, the accused’s preferences must give way to the ordinary scheduling of the circuits and the trial will be transferred to Adelaide and held in Court 3.
That the jury will be more comfortable in Adelaide also points towards a transfer, albeit not strongly.
I nonetheless agree with the submission that the application is somewhat premature and that the situation could well be different if evidence is agreed and the trial shortened to the extent that the court can be satisfied that it can be completed between circuits. To facilitate any further applications that might be made, there will be liberty to the accused to apply to the trial judge on the issue of the venue for trial.
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