R v Cardamone - [2017] VSC 225

IN THE SUPREME COURT OF VICTORIA

Unrestricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0044

THE QUEEN
v
MICHAEL CARDAMONE	Accused

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 April 2017
DATE OF RULING:	2 May 2017
CASE MAY BE CITED AS:	R v Cardamone
MEDIUM NEUTRAL CITATION:	[2017] VSC 225

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CRIMINAL LAW – Practice and procedure – Change of venue application – Criminal Procedure Act 2009 (Vic) s 192 - Local and national media reporting of alleged offending –- Nature of the publicity - Local political campaign for changes to bail, parole and sentencing law - Whether risk of unfair trial greater if jury drawn from local Wangaratta district – Ability of judicial direction to protect against unfairness - Custodial facilities – Whether adequate facilities provided for accused on trial - Inspection carried out - Application for change of venue refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms J. Warren	The Office of Public Prosecutions
For the Accused	Mr P. Tehan QC	Patrick Dwyer Solicitors

HIS HONOUR:

This is an application for a change of venue of the trial of the accused man, Michael Cardamone.

On 8 and 9 March 2017 a committal hearing was held in the Magistrates Court at Wangaratta at the completion of which the accused was committed for trial in this Court, sitting at Wangaratta, on the charge of having murdered the deceased Ms Karen Chetcuti on 12 January 2016.

On 17 March 2017, a post-committal directions hearing was held in this Court before me and I fixed the trial date for 31 July 2017. I was informed that the accused, who is represented by Mr Tehan QC, wished to apply for an order changing the venue of the trial from Wangaratta to Melbourne pursuant to s 192 of the Criminal Procedure Act 2009 which 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 hearing of the application proceeded before me on Thursday 6 April 2017. On 10 April 2017, with my Associate and Tipstaff, I visited and inspected the custody facilities at the Wangaratta Police Station.

On 19 January 2016, the accused man was charged by police with the murder of Ms Karen Chetcuti. As I have mentioned that killing is alleged to have occurred on or about 12 January 2016. Ms Chetcuti was from Whorouly a town located some distance south east of Wangaratta toward Myrtleford.

The allegation is that the accused caused the deceased’s death through the application of blunt force trauma having previously administered her with sedatives or other substances. It is then alleged the accused burnt the deceased alive.

At the time of the hearing of this application no Summary of Prosecution Opening address or Defence Response had been filed but, as I understand it,…

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 Cardamone

Details

AGLC: R v Cardamone [2017] VSC 225
Case: [2017] VSC 225
Decision Date: 2 May 2017

CaseChat Overview and Summary

In the case of R v Cardamone, the accused faced charges before the County Court of Victoria. The application was made to transfer the venue of the trial due to concerns that the accused would not receive a fair trial in the local Wangaratta district. The primary basis for this application was the extensive media coverage of the case, which included both local and national reporting, and the local political campaign advocating for changes to bail, parole, and sentencing laws. The court was required to determine whether the risk of an unfair trial was sufficiently high that it outweighed the presumption of a trial in the district where the offence was committed.

The legal issues before the court included the extent to which the media coverage and local political climate had compromised the local community's ability to be impartial jurors, and whether the judicial direction could sufficiently mitigate any prejudice. Additionally, the adequacy of custodial facilities for the accused was examined, with an inspection of the facilities conducted to ensure they met the necessary standards. The court considered the statutory provisions under the Criminal Procedure Act 2009 (Vic) and weighed the presumption of a trial in the local district against the potential for unfairness.

The County Court found that while the publicity surrounding the case was significant, judicial direction could adequately address any potential prejudice, and the local community remained capable of being impartial jurors. The court also confirmed that the custodial facilities were adequate for the accused's needs. Consequently, the application for a change of venue was dismissed, affirming that the trial would proceed in the Wangaratta district. The decision underscored the importance of judicial direction in maintaining the integrity of the trial process, despite adverse publicity and local political sentiments.

Orders