R v Bradley - [2015] VSC 257

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2014 0188

IN THE MATTER of section 192 of the Criminal Procedure Act 2009

- and –

IN THE MATTER of an application by STEVEN BRADLEY for a change of venue of the trial venue from Shepparton to Melbourne

THE QUEEN

STEVEN BRADLEY

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JUDGE:	OSBORN JA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2015
DATE OF RULING:	5 June 2015
CASE MAY BE CITED AS:	R v Bradley (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2015] VSC 257

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PROCEDURE – Application for change of venue – Pre-trial publicity – Adequacy of arrangements for accommodation of accused during trial.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A Tinney SC	Ms V Anscombe, Acting Solicitor for Public Prosecutions
For the Accused	Mr J Fitzgerald	Victoria Legal Aid

HIS HONOUR:

The accused man is charged with the murder of Michelle Buckingham at Shepparton on 21 October 1983. His trial is fixed for hearing at Shepparton in the September circuit this year.

He makes application for a change of venue to Melbourne on two bases:

(a) the inability to obtain a fair trial as a result of pre-trial publicity in Shepparton; and

(b) the inadequacy of the arrangements for his custody during the trial.

Section 192 of the Criminal Procedure Act 2009 provides —

If a court considers that—
(a) a fair trial in a criminal proceeding cannot otherwise be had; or
(b) for any other reason it is appropriate to do so—

the court may order that the trial be held at any other place that the court considers appropriate.

The principles governing the relevant discretion were summarised in R v Vjestica:

Ordinarily, a trial will proceed in the district in which the offence charged is alleged to have been committed. As Lush J explained in Re Ratten,[1] this course is adopted:
[1]Re Ratten (Unreported, Supreme Court of Victoria, Lush J, 4 August 1970).
so that justice will be seen to be done by those who are interested in seeing it and so that no feeling can arise that justice is done in a distant place and community.

More recently, in Director of Public Prosecutions (Vic) v Bennett, Cummins J expressed the view that there were:
powerful reasons of public policy why the venue of offence should be the venue of trial. The local community is the community in which the alleged crime took place; it is concerned to have the law administered within it; and to remove a circuit trial to Melbourne can lead the vacated community to feel disenfranchised, marginalised or alienated. All this is common experience. This basal requirement should not be watered down by mere administrative convenience. This is the Supreme Court of Victoria, not the Supreme Court of Melbourne.[2]
[2]Director of Public Prosecutions (Vic) v Bennett (2004) 10 VR 355 [6].

But the presumption in favour of a local trial is a rule of practice,…

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 R v Bradley

Details

AGLC: R v Bradley (Ruling No 1) [2015] VSC 257
Case: [2015] VSC 257
Decision Date: 5 June 2015

CaseChat Overview and Summary

In the case of R v Bradley, the defendant was facing criminal charges and applied for a change of venue, arguing that the pre-trial publicity in the area would make it impossible for him to receive a fair trial. The application was heard in the Supreme Court of the state where the alleged offences occurred. The primary concern was whether the pre-trial publicity was so prejudicial that it would taint the jury pool and whether the court could provide adequate measures to ensure a fair trial in the current location.

The court needed to determine if the pre-trial publicity was indeed prejudicial and whether this prejudice could be mitigated by the court's proposed measures, including jury vetting and sequestration, and whether these measures were sufficient to ensure the defendant's right to a fair trial. Additionally, the court had to consider the adequacy of the arrangements for the defendant's accommodation during the trial, including security and logistical considerations.

The court found that while the publicity was extensive, the measures proposed were adequate to ensure a fair trial. The court was satisfied that the jury vetting and sequestration processes would effectively identify and exclude any potentially biased jurors. The court also considered the logistical and security arrangements, concluding that they were sufficient to accommodate the defendant during the trial. As such, the application for a change of venue was dismissed.

The final orders of the court were that the trial would proceed in the current venue, with the implementation of the proposed measures to mitigate the effects of pre-trial publicity. The defendant's application for a change of venue was denied, and the trial was scheduled to continue as planned.

Orders