R v Eliot (a pseudonym) (No. 3)

[2022] NSWDC 701

District Court

New South Wales

Medium Neutral Citation:	R v Eliot (a pseudonym) (No. 3) [2022] NSWDC 701
Hearing dates:	4 March 2022
Date of orders:	4 March 2022
Decision date:	04 March 2022
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	Venue changed
Catchwords:	Change of venue on Courts motion, Crown opposition, defence facilitating the course of justice, Crown “flood gate” argument rejected, Crown “locality” argument rejected, risk of unfair trial if venue not changed due to publicity and nature of the crime alleged, conspiracy to murder, interests of young person, Section 30 of the Criminal Procedure Act, justice delayed is justice denied
Legislation Cited:	Criminal Procedure Act 1986
Cases Cited:	R v Whatman [2020] NSWDC 562
Category:	Procedural rulings
Parties:	Regina (Crown) Thomas Eliot (a pseudonym) (Accused)
Representation:	Counsel: Mr P Kerr (Crown) Ms C Mendes (Accused)
File Number(s):	2020/00232780
Publication restriction:	Pursuant to section 7 of the Court Suppression and Non-Publication Orders Act 2010, there be no publication, except for the proper conduct of these proceedings, of: a. The city in which the school is located and any information that would tend to identify the city; b. The name of the school and any information that would tend to identify the school; Pursuant to s15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of a child. Identifying information has been removed from this judgment to comply with the statute. Pseudonyms have been used for the names of the accused and other children.

JUDGMENT

1. Thomas Eliot (a pseudonym), a young person, is charged with two offences: firstly, conspiracy to murder, and secondly, solicit to murder. He was arraigned at the Albury District Court on 4 February 2022. The allegations are very serious. It is said that the young person was going to use explosives at a regional high school and then kill a number of people with knives after they had been startled by the explosions. He planned for a large-scale harm event at the school. He had a plan titled "Project Hellfire" which outlined the order of classroom and students he would target. He made a bomb in preparation and successfully detonated it. He made further bombs.

2. His arrest and charging created great media interest as one would expect due to the alleged facts and the school involved. There was a foreshadowed application for a change of venue to Griffith by the young person’s legal representatives. It was not proceeded with. That is not the end of the matter. The Crown concedes in written submissions dated 3 March 2022 that the Court has the power to change the venue of this trial on its own motion.

3. I am the resident judge of Albury and have been since February 2020. I also preside over the Griffith District Court. I treat them, subject to distance, as the one and the same Court. I have been given control of the trial list by Price J, Chief Judge of the District Court. In 2020 in a trial of R v Whatman, the Crown assisted in the movement of that trial from Griffith to Albury so a jury trial could take place. I presided over that trial. It was a very good example of the Crown working towards the facilitation of justice and the management of trial list between the two venues. Mr Kerr, Crown Prosecutor, did not appear in that trial.

4. In this case Mr Kerr who appears for the Crown who was instructed by Mr Dixon (both gentlemen signing the written submissions) have declined to assist the Court in the facilitation of justice and the management of the trial list. They argue that there are good reasons for trying an accused in the locality in which the offence is alleged to have occurred (the locality argument).

5. The trial is said to take two weeks. The trial could proceed in Griffith on 1 August 2022. The trial could not be had in Albury until 7 November 2022. Ms Mendes, who appears for the young person, does not object to the trial proceeding in Griffith and indeed embraces the trial starting on that date so it can be expeditiously dealt with in the interests of the young person. Mr Kerr and Mr Dixon object to that course. Mr Pincott, Crown Prosecutor, who appears in the trial currently before me, has indicated in open court that he is prepared to give up his leave and appear in the trial on 1 August 2022 if Mr Kerr foregoes the brief.

6. It is refreshing to see that a Crown Prosecutor from the Wagga office of the Director of Public Prosecutions is prepared to act in the interests of justice and facilitate the listing of trials. I take the following matters into consideration when reviewing Mr Kerr’s opposition:

1. The age of the young person. The rights of the young person are paramount even when dealt with according to law.

2. I have concerns due to the subject matter and media reporting that the young person may not receive a fair trial.

3. If the matter were to proceed in Albury it would require large jury panels for jury selection dislocating many potential jurors, and indeed the panel callup is conducted with jurors standing in Dean Street outside of the old courthouse for lengthy periods of time subject to whatever the weather is. That, to me, should not occur in relation to this case.

4. The panel size in Griffith would be smaller. It is highly unlikely a Griffith resident would be aware of the subject matter, the young person or witnesses who are Albury-based.

5. Witnesses can give evidence via AVL, laptops, iPads or telephone. During the pandemic this mode of giving evidence has become the norm. Witnesses will not be dislocated from Albury if the trial proceeds in Griffith.

6. The trial can be had in Griffith on 1 August 2022 as opposed to Albury on 7 November 2022.

7. It is in the interests of the young person, complainants and witnesses that these serious allegations are determined expeditiously. Justice delayed is justice denied.

8. The legal representatives of the young person do not object to the change of venue. They take a practical view to the facilitation of justice and the listing of trials between venues.

9. There is a Crown Prosecutor with vast trial experience who is prepared to appear in Griffith on 1 August 2022.

10. I see no prejudice to the Crown in the change of venue nor is any prejudice asserted in the written submissions.

11. The presumption in favour of a local trial as asserted by the Crown is a rule of practice and not a rule of law.

12. In considering the practical considerations of justice and trial management it is expedient on the balance of convenience for the trial to take place in Griffith.

7. I reject the Crown submissions that if I change the venue it would set a precedent and parties would be free to seek a change of trial venue to whatever venue in the State had the earliest available date. The "floodgates" argument is misconceived. I sit in Albury and Griffith. Trials will be had in those districts and those districts alone.

8. In coming to my decision, I have taken into account s 30 of the Criminal Procedure Act. In my view there are sufficient reasons as a matter of expediency to list the trial in Griffith. To do so will also allay any concerns that a fair trial could not be had. I am grateful to Mr Pincott, Crown Prosecutor, who is prepared to appear on trial facilitating the interests of justice and trial management.

9. The Crown requires written reasons if the Court moved on its own motion to change the trial venue. My reasons will be transcribed and after revision will be provided to the parties.

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Decision last updated: 01 March 2023