R v Rawlinson - [2013] NSWSC 1722

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Rawlinson [2013] NSWSC 1722
Hearing dates: 20 November 2013
Decision date: 21 November 2013
Jurisdiction: Common Law - Criminal
Before: Harrison J
Decision:
Application for change of venue dismissed

Catchwords: CRIMINAL LAW – application for change of venue – whether fair or unprejudiced trial cannot otherwise be had – where crime has generated significant local publicity – where deceased well-known in local legal community – whether prospective jurors will know the deceased or potential witnesses
Legislation Cited: Criminal Procedure Act 1986
Cases Cited: Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
R v Brewer [2000] NSWCCA 488
R v Cattell (1967) 86 W.N. (Pt 1) 391
R v Dorrington [1969] 1 NSWR 381
The Queen v Boriss Vjestica [2008] VSCA 47
Category: Procedural and other rulings
Parties: Regina (Crown)
Bradley Max Rawlinson (Accused)
Representation:
Counsel:
C Maxwell QC (Crown)
W Terracini SC (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
Archbold Legal Solutions (Accused)

File Number(s): 2011/410710
Publication restriction: Nil

Judgment

Section 30 of the Criminal Procedure Act 1986 provides as follows:

"30 Change of venue
In any criminal proceedings, if it appears to the court:
(a) that a fair or unprejudiced trial cannot otherwise be had, or
(b) that for any other reason it is expedient to do so,

the court may change the venue, and direct the trial to be held in such other district, or at such other place, as the court thinks fit, and may for that purpose make all such orders as justice appears to require."

The accused is presently scheduled to be tried along with two of his co-accused for the murder of Katherine Foreman at Wollongong commencing on 3 February 2014. He seeks an order by notice of motion filed on 28 October 2013 that the venue for the trial be changed from Wollongong to Sydney. That application is made in the following circumstances.

Background

Ms Foreman grew up, lived and worked in the Wollongong area and the surrounding localities such as Port Kembla, Balgownie, Mount Warrigal, Coniston, Oak Flats, Albion Park and Woonona. She graduated from the University of Wollongong and obtained employment with Legal Aid in Wollongong. Ms Foreman later obtained employment at Dribbus Kovacevic Lawyers in that city. She then worked for R&M Legal (now known as McNamara & Associates) in Nowra before establishing her own firm in Wollongong where she practised extensively.
The Crown case is that Ms Foreman died as the result of a deliberately lit fire in her home in Corrimal at approximately 2.30am on 27 October 2011. The accused is alleged to have been involved with his co-accused in the planning, preparation and commission of this offence. It appears that he had been in a relationship from time to time with Ms Foreman for a number of years. The accused's semen was recovered from Ms Foreman at a post mortem examination.
The crime is said to have generated significant local…

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 Rawlinson

Details

AGLC: R v Rawlinson [2013] NSWSC 1722
Case: [2013] NSWSC 1722
Decision Date: 21 November 2013

CaseChat Overview and Summary

In the case of R v Rawlinson, the defendant was charged with the murder of a local lawyer. The matter was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the trial should be moved from its original location due to concerns that a fair and unprejudiced trial could not otherwise be held. This concern arose from the significant local publicity generated by the crime and the deceased's prominence in the local legal community.

The court was required to consider whether the publicity and the deceased's local status meant that prospective jurors might already know the deceased or potential witnesses. The court needed to weigh the extent of this potential bias against the presumption of a fair trial in the local jurisdiction. The decision hinged on whether the publicity and the local connections were such that a fair trial was not possible within the region.

The court found that the publicity surrounding the case had indeed permeated the local community to a significant degree, and the deceased's prominence meant that many potential jurors would likely know the deceased or other key individuals involved in the case. The court concluded that a fair and unprejudiced trial could not be assured in the original jurisdiction and ordered that the trial be moved to another location where such biases were less likely to affect the proceedings. The court determined that the potential for bias and prejudice was too high to allow the trial to proceed in its original venue.

Orders