R v Lyons and Lyons (Ruling No 1 - Change of venue)
[2017] VSC 469
•15 AUGUST 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
Christine Lyons – S CR 2017 0004
Ronald Lyons – S CR 2017 0005
| THE QUEEN |
| v |
| CHRISTINE LYONS and RONALD LYONS |
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JUDGE: | RIORDAN J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 10 AUGUST 2017 |
DATE OF JUDGMENT: | 15 AUGUST 2017 |
CASE MAY BE CITED AS: | R v Lyons and Lyons (Ruling No 1 – Change of venue) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 469 |
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CRIMINAL LAW – Trial – More than usual community and media interest – Prior finding of applicants’ involvement with co-offender – Built-in protections for fair trial – Risks associated with jury directions – New venue ordered.
PRACTICE AND PROCEDURE – Application for change of venue – Discretion – Principles governing – Criminal Procedure Act 2009 (Vic) s 192.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms F Dalziel | Mr J Cain, Solicitor for Public Prosecutions |
| For Christine Lyons | Mr C Dane QC | Stary Norton Halphen |
| For Ronald Lyons | Mr J Desmond with Mr J Williams | Victoria Legal Aid |
HIS HONOUR:
Christine Lyons (‘the first applicant’) and Ronald Lyons (‘the second applicant’) (together, ‘the applicants’) are charged with the murder of Samantha Kelly (‘the deceased’) and their trial has been listed to commence at the Bendigo sittings of this Court on 23 October 2017 on an estimate of four weeks. The applicants seek an order that the trial be held in Melbourne rather than Bendigo pursuant to s 192 of the Criminal Procedure Act 2009.
The application is opposed by the Crown.
Background
On about 20 January 2016, the deceased was last seen alive.
On 4 February 2016, the deceased was formally reported as a missing person.
On 12 February 2016, Peter Arthur and the first applicant were charged with murder and the second applicant was charged as an accessory to murder.
On 27 September 2016, the second applicant was also charged with murder.
On 9 November 2016, at a committal mention, the committal hearing for Peter Arthur and the applicants was listed for 9 January 2017.
On 23 November 2016, at a committal mention at the Bendigo Magistrates’ Court, Peter Arthur pleaded guilty to murder.
On 13 January 2017, the applicants were committed for trial on charges of murder of the deceased after a five-day hearing in the Bendigo Magistrates’ Court.
On 31 January 2017, the trial was fixed for 23 October 2017 at the Supreme Court of Victoria at Bendigo.
On 3 and 4 April 2017, Lasry J heard the plea of Peter Arthur on the charge of murdering the deceased at the Supreme Court of Victoria at Bendigo.
On 17 May 2017, Lasry J sentenced Peter Arthur to be imprisoned for 16 years and fixed a minimum period of 13 years before he was eligible to apply for parole.[1] During the period of 11 months up to the sentencing of Peter Arthur, the Bendigo Advertiser has published the following articles relevant to the murder of the deceased:
[1][2017] VSC 263R, which is restricted from publication.
(a) On 22 June 2016: ‘No bail attempt in Samantha Kelly murder case’.
(b)On 15 September 2016: ‘A committal hearing for a woman charged with the murder of Samantha Kelly … ’ .
(c) On 15 September 2016: ‘Kelly murder case to hear from 28 witnesses’.
(d)On 28 September 2016: ‘A third housemate charged with the murder of Kangaroo Flat woman Samantha Kelly’.
(e)On 24 November 2016: ‘One of the three housemates accused of killing Kangaroo Flat mother of Four … ’.
(f)On 10 January 2017: ‘Two people charged with murdering Kangaroo Flat mother of four Samantha Kelly’.
(g) On 10 January 2017: ‘Samantha Kelly Murder Committal Begins’.
(h) On 11 January 2017: ‘I want you to make Sammy disappear’.
(i)On 11 January 2017: ‘Murder accused Christine Lyons believed two of her alleged victim’s children … ’.
(j)On 11 January 2017: ‘A close friend of three people charged with the murder of Samantha Kelly in … ’.
(k)On 12 January 2017: ‘Police believe Samantha Kelly’s three housemates attempted to drug her to death’.
(l) On 12 January 2017: ‘Housemates allegedly tried to drug mother to death’.
(m)On 13 January 2017: ‘Samantha Kelly’s cousin claims she overheard Peter Arthur murder the … ’.
(n) On 13 January 2017: ‘Cousin claims to have heard Samantha Kelly murder’.
(o)On 14 January 2017: ‘Two housemates of Kangaroo Flat mother Samantha Kelly have been committed to … ’.
(p)On 14 January 2017: ‘A man who pleaded guilty to murdering Samantha Kelly in Kangaroo Flat in January … ’.
(q) On 14 January 2017: ‘Samantha Kelly’s killer gives evidence to Court’.
(r) On 1 February 2017: ‘Date set for Samantha Kelly murder trial’.
(s)On 4 April 2017: ‘She was a joker, a doting mother, the life of the party, a devoted friend’.
(t) On 4 April 2017: ‘Family gets chance to address murderer’.
(u)On 5 April 2017: ‘An experienced Crown prosecutor has described the motive behind the murder of … ’.
(v) On 5 April 2017: ‘Samantha Kelly murder motive extraordinary’.
(x) On 18 May 2017: ‘Peter Arthur sentenced to 16 years jail’.
A further 24 articles about this matter had been published in the Bendigo Advertiser in the period from February 2016 to June 2016.
There has also been extensive television and radio coverage of the matter.
The applicants also rely upon a Facebook page which contains some 88 pages and makes reference to various media publications including links to television reporting and the sentencing remarks of Lasry J. The Facebook page has been ‘liked’ by 1460 people and 1439 people are ‘following’ the Facebook page. It appears the Facebook page has now been taken down and is no longer available for viewing.
Submissions
The parties made submissions with respect to the following:
(a) Would the pre-trial publicity prejudice a fair and impartial trial in Bendigo?
(b)Would transfer to Melbourne substantially affect the convenience of witnesses?
(c)Would transfer to Melbourne substantially affect the convenience of the accused?
Would the pre-trial publicity prejudice a fair and impartial trial in Bendigo?
Applicants’ submissions
The applicants each filed submissions; but they were similar in substance and I summarise them as follows.
The applicants submit that the extensive local media coverage of this matter in the Bendigo region gives rise to a prospect of significant prejudice if the trial was to proceed before a jury in Bendigo. In particular, it is contended that the media coverage is sensationalist, not factual and goes to issues of intent.
In particular, they refer to the following headlines in the Bendigo Advertiser:
·On 11 January 2017: ‘I want you to make Sammy disappear’.
· On 12 January 2017: ‘Police believe Samantha Kelly’s three housemates attempted to drug her to death’.
·On 5 April 2017: ‘Samantha Kelly murder motive “extraordinary”’.
In respect of the content of articles, the applicants referred to the following:
·On 11 January 2017, a witness, Rebecca Stow was reported as having told the Court of Christine Lyons’ belief that two of Samantha Kelly’s children ‘were supposed to belong to her’ and that the Court was also told that ‘Chrissy said, “I’m going to take (two of the children) because they are mine”’.
·On 11 January 2017, another witness, Shiralee Lyons, was reported as having told the Court that she told Police ‘Christine Lyons and Peter Arthur asked her on three occasions to kill Samantha Kelly … it was the third time Christine Lyons and Peter Arthur spoke openly about killing Ms Kelly’ and that the Court was also told that ‘Chrissy brought Sam up, just talking about ideas on how to do Sam in … what I remember was, it come up about Sam, and she wanted Sam’s kids’.
·On 18 May 2017, the remarks of Justice Lasry on sentence of Peter Arthur were quoted: ‘This was a vicious calculated and planned killing by you, urged by your accomplices, and carried out for an entirely bizarre reason … ’.
Complaint was also made about the content from other media outlets:
·On 13 January 2017, News.Com published ‘“It was a way of showing (how) Christine was manipulating a number of people, including Arthur,” he (the informant, Chris Saulle) said’.
·On 3 April 2017, the following was quoted in ABC News online: ‘Christine Lyons is the architect of this particular crime, it’s her plan, she’s the one with the motivation and my client is the one doing the dirty work. We would urge Your Honour to sentence this man on the basis that he has been manipulate’; submissions of Peter Arthur’s lawyer.
In particular, the applicants relied upon the fact that on 18 May 2017 the Bendigo Advertiser published the following positive findings of fact made by Lasry J in sentencing Peter Arthur:
(a) The motive was ‘extraordinary’.
(b)The killing by Peter Arthur was ‘urged by [his] accomplices and carried out for an entirely bizarre reason’.
It is submitted that the ‘extraordinary’ motive is a reference to the fact that it is the Crown case that the applicants agreed with Peter Arthur that the deceased should be murdered so that the first applicant could take over the care of the deceased’s children, to have as her own.
Although the applicants concede that publicity per se (including its unsavory inflammatory narrative) would not likely warrant a change of venue, it was submitted that the ‘findings of fact’ adverse to the applicants by a Supreme Court Judge were unfairly prejudicial because any reasonable panel or jury member could only conclude that Lasry J must have been so satisfied. This is an error which cannot be rectified or ameliorated by curial direction, without highlighting the very problem.
With respect to whether the effect of the publicity can be overcome by such protections, which are built-in to the system of trial by jury, the first applicant referred to the following articles:
(a)An article by Jodie O’Leary,[2] who throws doubts on the confidence in the efficacy of jury directions. She notes the comments of Professor Mirko Bagaric who has condemned the ‘near heroic belief that jury directions can cure negative impressions formed about an accused’, and who added ‘[t]here is no evidence to suggest that this is anything other than judicial wishful thinking’.[3]
(b)An article by Alan Ardill,[4] who also questions the effectiveness of jury directions regarding prejudicial pretrial publicity. He states:
A second theme in the majority decision concerns the belief that an appropriate warning from the judge will be enough to ensure a fair trial. This is one of the great legal fictions. There is an abundance of research that raises serious doubt about the assumption that a jury can separate evidence from other material. Further, the same research challenges the assumption that a trial judge can somehow minimise the impact of prejudicial publicity.[5]
[2]Jodie O’Leary, ‘Twelve angry peers or one angry judge: An analysis of judge alone trials in Australia’ (2011) 35 Criminal Law Journal, 154, 154–69.
[3]Mirko Bagaric, ‘Editorial – The Community Interest in Bringing Suspects to Trial Trumps the Right to an Impartial Decision Maker – At Least in Victoria’ 34 (2010) 34 Criminal Law Journal 5, 6.
[4]Allan Ardill, ‘The right to a fair trial: prejudicial pre-trial media publicity’ (2000) 25(1) Alternative Law Journal 3.
[5]Ibid 5. Citations omitted.
In oral submissions, senior counsel for the applicants conceded that these studies could not permit me to disregard the authorities as to the effect of protections against unfairness resulting from (for example) prejudicial pre-trial publicity, which are built-in to our system of trial by jury (‘the built-in protections’).
Crown’s submissions
On behalf of the Crown it was submitted that the reporting was fair and accurate and does not compromise the ability of the applicants to receive a fair trial for the following reasons:
(a)The newspaper articles refer to the evidence of witnesses and do not raise matters that will not be in evidence at the trial.
(b)By the time of the trial, the media reporting will be months old and it is unlikely that any potential jury will have retained any memory of the details of the media reports.
(c)The findings of fact made by Lasry J as reported will have no effect on a jury who hears the evidence from the witnesses.
The specific reports referred to by counsel for the defence are not improper or sensationalist. In particular:
(a)The headline ‘I want you to make Sammy disappear’ is a quote from the evidence of the witness.
(b)The headline ‘Police believe Samantha Kelly’s three housemates attempted to drug her to death’ can have no prejudicial effect. It will be the prosecution’s case that that is what is occurred.
(c)The article which refers to the prosecutor’s submission that the motive for the murder was extraordinary is not prejudicial. The motive alleged by the prosecution is out of the ordinary. The motive referred to in the article is the same motive that will be put forward by the prosecution in the trial. Reporting as to a comment made by a prosecutor cannot reasonably be thought to have the effect of a causing a juror who was heard all the evidence and addresses to not bring an open mind to the issues in the case.
The submissions with respect to academic writings do not replace judicial authority regarding the receptiveness of juries to judicial direction.
The total number of persons eligible for jury duty in the Bendigo district, as at 2 August 2017, was 91,856. Ordinarily 70 to 80 people would be summoned for a Supreme Court murder trial but that number may be increased at the request of the Court.
Would transfer to Melbourne substantially affect the convenience of witnesses?
Crown’s submission
It was submitted on behalf of the Crown that a trial in Bendigo would be significantly more convenient for the following reasons:
(a)Of the 62 witnesses who are expected to be called to give evidence, 41 of those witnesses reside in Bendigo or significantly closer to Bendigo than Melbourne.
(b)A key witness, Shiralee Lyons, suffers from mental health conditions and has expressed a strong preference that the trial be held in Bendigo because she does not want to have to stay overnight in Melbourne ‘as she feels this may impact her mental health’. She lives 218 kilometres from Melbourne as compared with 75 kilometres from Bendigo. She is reliant on public transport.
(c)One witness is a 17-year-old female who is in State care and is a flight risk. ‘It is possible if required to travel to Melbourne she will use that opportunity to flee her carer’.
(d)Ms Rebecca Stow is a single mother and requiring her to attend court in Melbourne will cause significant child care problems.
(e)Ms Pedersen also has child care issues and a recent family bereavement causes her to feel that her anxiety will be exacerbated if she is required to travel to Melbourne.
(f)Three witnesses are school teachers in Bendigo. A Melbourne trial would require at least one entire day off work, but a trial in Bendigo would only require them to be absent for a few hours.
(g)Four witnesses work for the Department of Health and Human Services in Child Protection based in Bendigo and requiring them to travel to Melbourne to give evidence will be an inconvenience.
(h)Three witnesses are general practitioners in Bendigo and requiring them to travel to Melbourne to give evidence will cause them to miss an entire day of appointments as opposed to half a day or less should the trial take place in Bendigo.
Applicants’ submissions
The first applicant submits that there are significant benefits, with respect to witnesses, in moving the trial to Melbourne including:
(a)Prisoner transport and accommodation for the critical witness Peter Arthur and also for witness Jason Roberts, on the assumption that he is still in custody in Melbourne.
(b)The following professional witnesses reside in Melbourne:
·Medical experts, such as Dr Odell and Dr Graudins;
·Forensic medical practitioners, such as Drs Bouwer, Blau, Archer and Gerastamoulos;
·Police witnesses such as Homicide Squad Officers Saulle, Sheppard and Solomon and possibly Victorian Police forensic specialist David Black.
(c)A number of the witnesses described by the prosecutor as being from ‘the area surrounding Bendigo’ in fact live a substantial distance from Bendigo. For example, Dunnolly is approximately 60 kilometres from Bendigo; and Ballarat is approximately 115 kilometres from Bendigo.
(d)The list of required witnesses required the travel to Melbourne could be substantially reduced by a statement of agreed facts or witnesses giving their evidence by video link from Bendigo.
(e)The witness list is likely to be further reduced if, ‘as appears likely [the applicants] are each willing to plead guilty to the accessory charge’.
Would transfer to Melbourne substantially affect the convenience of the accused?
Crown’s submissions
Although it is conceded that the applicants can be properly accommodated for any trial in Melbourne, it is submitted that there would be an advantage in keeping the trial in Bendigo because prisoner travel time will be reduced if the applicants are held in the Bendigo police cells, as they were during the committal.
Applicants’ submissions
The applicants submit that there are benefits in transport and accommodation for the two accused. The applicants also contend that there will be difficulties with sleep and privacy in the Bendigo cells, which it was submitted was an issue during the committal.
Principles applicable in determination of a change of venue application
Sections 169 and 192 of the Criminal Procedure Act 2009 provides as follows:
169 Place of hearing of criminal trial
(1) A criminal trial in the Supreme Court or the County Court is to be held in the court sitting at the place that is nearest to the place where the offence is alleged to have been committed, unless an order is made under section 192.
(2) A criminal trial is not invalid only because it was conducted at a place other than the place referred to in subsection (1).
192 Power to change place of trial
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.
Section 192 requires an exercise of judicial discretion according to the particular circumstances of the case in hand;[6] and the application of the following principles:
[6]R v Iaria and Panozzo (2004) 9 VR 425, 427 [7] (Nettle J).
(a) Each application requires the Court to exercise its discretion according to the particular circumstances of the case and falls to be considered on its own merits, without preconceptions.[7]
[7]Ibid 427 [7], 428 [10] (Nettle J), citing R v Yanner [1998] 2 Qd R 208, 209 (Pincus JA); approved in R v Vjestica [2008] VSCA 47 [4] (Maxwell P, with whom Buchanan JA and Whelan AJA agreed).
(b)On a pre-trial application for a change of venue, the Court undertakes a risk assessment; as opposed to assessing, as on an appeal, whether a fair trial was had.[8]
[8]R v Vjestica [2008] VSCA 47 [7]; R v Thomas [2014] VSC 677 [15] (Lasry J).
(c)As a rule of practice, ordinarily a trial will proceed in the district in which it is alleged that the offence was committed.[9] The reasons for this rule of practice include the following:
[9]Section 169 of the Criminal Procedure Act 2009 gives statutory effect to the presumption.
(i)The importance of the local community seeing that justice has been done and avoiding the possibility that ‘the vacated community [feels] disenfranchised, marginalised or alienated’;[10] and, as was explained by Lush J in Re Ratten, ‘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’.[11]
[10]DPP v Bennett (2004) 10 VR 355, 356 [6].
[11]Re Ratten (Unreported, Supreme Court of Victoria, Lush J, 4 August 1970), cited with approval in DPP v Bennett (2004) 10 VR 355, 356 [5].
(ii)It underscores the fact that the Supreme Court of Victoria is the State Supreme Court and not the Supreme Court of Melbourne.
(iii) A local trial is more likely to be convenient to witnesses.
Accordingly, mere administrative convenience is not a basis for removing a circuit trial to Melbourne.[12] However, this presumption must give way to the paramount requirement that the defendant have a fair trial.[13]
(d)The Court of Appeal has expressed the relevant test as being whether there is a real risk that a that a trial held locally will not be fair – or will not be seen to be fair – and that risk cannot be eliminated.[14]
(e) The onus of satisfying the relevant test rests with the applicant.[15] In satisfying the onus:
(i) it is not necessary to show exceptional circumstances;[16]
(ii) the onus is not a heavy one; but, in practice, it is a stringent one;[17] and
(iii)the onus is not as great as that for an application for a permanent stay.[18] In particular, it is not necessary to consider the community’s right to expect that a person accused of a serious criminal offence will be brought to trial.[19]
[12]R v Vjestica [2008] VSCA 47 [2]–[3] (Maxwell P, with whom Buchanan JA and Whelan AJA agreed).
[13]Ibid [3].
[14]Ibid [3], citing DPP v Bennett (2004) 10 VR 355, 358 [10] (Cummins J). The latter limb is an application of the principle that ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done’: R v Lange (1987) 25 A Crim R 139, 140, cited in R v Iaria and Panozzo (2004) 9 VR 425, 426–7 [5].
[15]R v Vjestica [2008] VSCA 47 [4].
[16]Ibid.
[17]Ibid [4]–[5].
[18]R v Iaria and Panozzo (2004) 9 VR 425, 427 [9].
[19]See R v Glennon (1992) 173 CLR 592, 604–5 (Mason CJ and Toohey J).
Although the principles as set out in R v Vjestica[20] and R v Iaria and Panozzo[21] were established prior to the introduction of the Criminal Procedure Act 2009, the principles have been frequently applied in considering applications under that section;[22] and it was not submitted by the parties that these principles were inapplicable to applications under s 192 of that Act.
[20][2008] VSCA 47.
[21](2004) 9 VR 425.
[22]R v Bradley [2015] VSC 257 [4] (Osborn JA); DPP v Scriven [2014] VSC 157 [11]–[12] (Coghlan JA); R v Thomas [2014] VSC 677 [12]–[14] (Lasry J).
Decision
Although any murder in a regional district will generate significant and widespread publicity, I am satisfied on the evidence that the murder of the deceased by Peter Arthur and the charges of murder against the applicants in this case have resulted in a higher than usual level of interest in the community and media coverage in the Bendigo region. The reason for this higher than usual level of interest and coverage was undoubtedly what Lasry J described, in the sentencing of Peter Arthur, as the ‘extraordinary’ motive and ‘entirely bizarre reason’ behind the murder.
As noted above, it is well established that, despite the extent of coverage potentially giving rise to prejudice, the system of trial by jury in which directions are given to the jury and the jury is exposed to the totality of the evidence (in this case over an estimated period of three to four weeks), extensive publicity will not usually be sufficient ground for a change of venue. As Maxwell P said in R v Vjestica:
Our system of jury trial has its own built-in protections against unfairness resulting from (for example) prejudicial pre-trial publicity. Those safeguards are: the excusing of any potential juror who may have difficulty deciding the case impartially; warnings and directions from the trial judge to the jury about deciding the case strictly on the evidence; and the discipline of participation in the trial itself. Even where a risk of prejudice is identified, the applicant for change of venue will often be hard pressed to establish that these safeguards will not be sufficient to eliminate the risk.[23]
[23][2008] VSCA 47 [5] (with whom Buchanan JA and Whelan AJA agreed).
In this case, the applicants contend that there is an additional consideration which requires that the venue be changed to ensure that the applicants receive a fair trial.
On 18 May 2017, the Bendigo Advertiser, which is the principal newspaper distributed in the Bendigo region, published on the front page a report of the comments made by Lasry J made the previous day when sentencing Peter Arthur for the murder of the deceased. Under the headline ‘CONDEMNED’ the report included the following remarks attributed to Lasry J:
(a)Ms Kelly was a vulnerable woman, and the motive behind her murder was ‘extraordinary’.
(b)‘This was a vicious calculated and planned killing by you, urged by your accomplices, and carried out for an entirely bizarre reason’.[24]
(c)‘Your action has left four vulnerable young children motherless’.
[24]Emphasis added.
It was submitted on behalf of the applicants that, for the following reasons, the prejudicial effects of the accurate reporting of the above findings of fact by a Supreme Court Judge could not be resolved by ‘built-in protections’ referred to by Maxwell P in R v Vjestica:[25]
(a)The finding that Peter Arthur murdering the deceased, after being urged to do so by the applicants, was the overwhelming critical issue for the defence case of both applicants.
(b)The report of the finding appeared on the front page of the Bendigo Advertiser in mid-May 2017, which will be about 5 months before the trial.
(c)The risk of prejudice arising from the publication of the finding of a Supreme Court Judge could not be resolved by a jury direction.
[25][2008] VSCA 47 [5] (with whom Buchanan JA and Whelan AJA agreed).
It was submitted by the Crown that it should not be presumed that the jury panel members would have read the article or would recall that the reference to ‘accomplices’ was a finding of a judge. Counsel submitted that it could be resolved by a general direction to the panel or a direction to the jury.
In responding to a question from the bench as to the form of the direction that should be given to the jury, on the assumption that the trial was to proceed in Bendigo, counsel responded as follows:
(a)Senior Counsel for the second applicant said that the jury should be specifically directed to ignore the article relating to the findings of the Supreme Court Judge in the reasons for sentencing Peter Arthur including any reference to applicants’ complicity. He acknowledged the difficulties with raising this matter specifically but contended it was preferable to the risk of jury members recalling the report of the findings of the Supreme Court Judge.
(b)Senior Counsel for the first applicant said that, because of the risks referred to by counsel for the second applicant, no specific direction should be given to the jury. However, the temporal proximity between the report and the trial required that the trial be at least adjourned until next year, despite the fact that the applicants would remain on remand.
(c)Counsel for the Crown suggested a middle ground being that the jury be directed to disregard reports following the sentencing of Peter Arthur.
In R v Iaria and Panozzo,[26] Nettle J considered an application for a change of venue in the following circumstances:
(a)The two accused had been tried and convicted of murder in the Supreme Court at Wangaratta.
(b)Following their conviction and up to their appeal against conviction the Border Morning Mail, the leading daily newspaper circulating in the Wangaratta and Wodonga areas, reported extensively on the trial, conviction and the intention to appeal.
(c)The Court of Appeal set aside the conviction and ordered a retrial in Wodonga.
[26](2004) 9 VR 425.
Nettle J ordered that the venue of the trial be changed to Melbourne and, as a basis for doing so, stated that:
I am not prepared to say … that a proper trial would not be possible before a jury in the district … it is desirable to go further than that, to ensure not only that a fair trial would be had in fact, ‘but that it should be had in such circumstances that all reasonable men would so admit’.[27]
[27]Ibid 431 [23] citing Cordy v Trembath [1921] VLR 163, 166–7.
His Honour identified the following critical features:
(a)There had already been a trial, which had been reported and ‘greeted with editorial and community satisfaction’.[28]
(b) There was evidence of the publicity influencing community attitudes.[29]
(c)The publicity about the appeal was likely to have the effect of refreshing the memories of the community.[30]
[28]Ibid 430 [19].
[29]Ibid 430 [20].
[30]Ibid 430 [21].
Nettle J identified that the prior finding of guilt was an unusual feature of the case. I consider that the trial judge would have faced similar difficulties in formulating an appropriate direction, as have arisen in this case.
For the following reasons, in my opinion, in this case there is a real risk that a trial held locally will not be fair, or will not be seen to be fair; and that risk cannot be eliminated by the ‘built-in protections’ or otherwise:
(a)The prospect of members of the jury being aware that a Supreme Court Judge had made a finding that the murder had been carried out at the urging of the applicants, as accomplices, could be extremely prejudicial.
(b)The prospect of the members of the jury having read the article and recalling it are high because:
(i)the article was published on the front page of the principal newspaper distributed in the Bendigo district;
(ii)the circumstances of the murder of the deceased has been the subject of more than usual community and media interest particularly because of the ‘extraordinary motive’ and ‘entirely bizarre reason’ for the murder.
(iii) it will have been published only 5 months before the trial;
(iv)the issues surrounding the sentencing will be the subject of intense scrutiny arising out of the cross-examination of Peter Arthur about his preparedness to give evidence to reduce his sentence.
(c)As indicated by the different views expressed about how the jury should be directed, it is not possible to anticipate whether a specific direction about ignoring the judge’s finding at sentencing, with an attendant explanation of the different task being undertaken at that stage, would only serve to aggravate the difficulty by bringing it to the attention of those jurors, who did not know, or causing others to remember. On the other hand, to not direct the jury specifically to the fact that judge’s finding on this critical issue must be ignored, is to risk the members of the jury, who do recall, communicating it to other jury members; and the jury improperly taking the finding of the judge into account.
As a result of the above combination of features, I propose to order that the venue for the trial of the applicants be changed to Melbourne.
I should add that I have taken into account the increased inconvenience caused to some witnesses as a result of such change in venue; but I do not consider these issues are sufficient to justify the real risk of the trial of the accused being unfair.
I have also considered the possibility of adjourning the trial until next year. However, I do not consider that to be an appropriate course of action because the applicants are remanded in custody; and I am not satisfied that a delay of some further months will satisfactorily resolve the risk of the trial being unfair or being seen to be unfair.
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