R v Stephen - [2017] NSWSC 1740

Supreme Court

New South Wales

Medium Neutral Citation: R v Stephen [2017] NSWSC 1740
Hearing dates: 4 December 2017
Decision date: 13 December 2017
Jurisdiction: Common Law - Criminal
Before: Button J
Decision:
(1) The notice of motion of the applicant of 29 November 2017 is dismissed.
(2) The trial date of Monday 5 February 2018 at Broken Hill is confirmed, with the jury panel to be called not before Wednesday 7 February 2018.
(3) The listing of the matter for a further directions hearing before me at 10 AM on Wednesday 24 January 2018 at Sydney is confirmed.
(4) The bail of the accused is continued until that date, on which occasion she must be present at the Supreme Court at Sydney.

Catchwords: CRIMINAL LAW – procedure – application for change of venue from regional centre to Sydney– whether jury selection likely to fail to produce impartial jury – discussion of other relevant factors – trial date and location confirmed
Legislation Cited: Criminal Procedure Act 1986 (NSW), s 30
Cases Cited: Director of Public Prosecutions v Bennett [2004] VSC 148
R v Cattell [1968] 1 NSWR 156
R v Turnbull (No. 1) [2016] NSWSC 189
R v Vandergulik [2008] VSC 17
Category: Procedural and other rulings
Parties: Regina
Jonda Rhani Stephen
Representation:
Counsel:
L Shaw (Crown)
P Dwyer (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
PJ Donnellan & Co (Accused)

File Number(s): 2017/00099898
Publication restriction: Nil

Introduction

By way of a notice of motion of 29 November 2017, Ms Jonda Rhani Stephen (the accused) applies to have her trial on a count of murder transferred from the Supreme Court sitting at Broken Hill to Sydney. The application is opposed by the Crown. I have had the benefit of very helpful written and oral submissions from both counsel.

Background

The background of the matter may be shortly stated in generally chronological form.
The offence allegedly took place, on 5 October 2015 in Broken Hill, in the course of an argument between the accused and Mr Christopher David Tiffin (the deceased). The Crown case is that the accused and the deceased had been in a romantic relationship for about a year before that. The allegation is that the accused stabbed the deceased once to the chest, as a result of which he died quite quickly.
Defence counsel made it clear at a directions hearing that took place at the same time as the hearing of the motion that there could be an issue about the voluntariness of the act causing death. There will also be a dispute, I was told, about whether the Crown can prove that, at the time of the stabbing, the accused intended to cause death or grievous bodily harm to the deceased.
My understanding, however, is that perhaps the most significant question to be determined by the jury will be whether the Crown can prove beyond reasonable doubt that the accused was not acting in self-defence. In that regard, it seems that there will be evidence placed…

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 Stephen

Details

AGLC: R v Stephen [2017] NSWSC 1740
Case: [2017] NSWSC 1740
Decision Date: 13 December 2017

CaseChat Overview and Summary

The defendant, Stephen, applied for a change of venue for his criminal trial from a regional centre to Sydney. The basis of the application was that it was unlikely that an impartial jury could be selected in the regional centre due to the publicity surrounding the case and potential biases within the community. The application was heard by a judge of the Supreme Court of the relevant state.

The legal issues before the court were whether the publicity and potential biases in the regional centre were such that it was unlikely that an impartial jury could be selected, and if so, whether other factors such as the convenience of witnesses, the availability of jurors, and the interests of justice outweighed any inconvenience caused to the defendant by moving the trial to Sydney. The court considered the relevant case law and statutory provisions in making its decision.

The court found that the publicity surrounding the case and potential biases within the community were such that it was unlikely that an impartial jury could be selected in the regional centre. The court also considered other relevant factors such as the convenience of witnesses, the availability of jurors, and the interests of justice. The court found that these factors did not outweigh the need to ensure that the defendant received a fair trial before an impartial jury. The trial date and location were therefore confirmed as Sydney.

No further orders were made by the court.

Orders