R v Vandergulik - [2008] VSC 17

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1506 of 2007

THE QUEEN	Plaintiff
v
MARGARET VANDERGULIK & MICHAEL VANDERGULIK	Defendants

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JUDGE:	Teague J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 February 2008
DATE OF RULING:	11 February 2008
CASE MAY BE CITED AS:	R v Vandergulik & Vandergulik
MEDIUM NEUTRAL CITATION:	[2008] VSC 17

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Criminal Law - Ruling – application for change of venue not granted – Reliance on newspaper reports of prior events and proceedings

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. Rose SC & Mr A. Lewis	Office of Public Prosecutions
For the Defendant – Margaret Vandergulik	Mr I. Hill QC	Galbally & O’Bryan
For the Defendant – Michael Vandergulik	Mr M. Croucher	Lethbridges

HIS HONOUR:

These are my reasons for ruling that I would not accede to an application for a change of venue. The application was made by Margaret Vandergulik. I shall refer to her after this as the applicant. The application was supported by her son, Michael Vandergulik. I shall refer to him after this as the second accused. Both the applicant and the second accused are awaiting trial, having been charged with the murder at Wangandary on 28 April 2005 of Patrick Plumbe, to whom I shall refer after this as the deceased.

On 28 April 2005, the body of the deceased was located in a burnt out utility against a tree near Glenrowan. A funeral followed and the deceased was buried. On 20 April 2006 an inquest into the death of the deceased was commenced but adjourned. On 6 June 2006, the body of the deceased was exhumed. On that same day, the applicant was shot in the arm, and hospitalised. On 15 June 2006, the applicant was arrested and charged with the murder of the deceased. On 16 November 2006, the applicant was granted bail. On 27 November 2006, the second accused was also charged with the murder of the deceased.

On Monday, 28 May 2007, a committal hearing was commenced at the Wangaratta Magistrates’ Court, and evidence was heard over the ensuing five days. On Friday, 1 June 2007, after the hearing of evidence concluded, the magistrate made an order committing the applicant for trial on the charge of murder. The magistrate declined to commit the second accused. Later in June 2007, the Director of Public Prosecutions opted to directly present the second accused on the charge of murder. On 21 June 2007, the second accused was granted bail. There were later directions hearings. The court was advised of the proposed making of an application for change of venue. It was indicated to the Court that the trial was likely to last for 4 or more weeks and that it could be heard in Melbourne or Wangaratta to commence on 29 September 2008.

The applicant’s application for the trial to be held in Melbourne, which came on for hearing before me on 5 February 2008, was supported by the second accused.…

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 Vandergulik

Details

AGLC: R v Vandergulik [2008] VSC 17
Case: [2008] VSC 17
Decision Date: 11 February 2008

CaseChat Overview and Summary

The case of R v Vandergulik arose from an application by the accused, Vandergulik, to change the venue of his criminal trial on the grounds that he could not receive a fair trial in the original jurisdiction due to extensive and prejudicial pre-trial publicity. Vandergulik's application was heard and ultimately dismissed by the Supreme Court of Victoria. The court was required to determine whether the pre-trial publicity was such that it would prevent Vandergulik from receiving a fair trial, and if so, whether a change of venue was warranted.

The legal issues before the court were whether the publicity was prejudicial and, if it was, whether it was of such a degree that a fair trial was impossible in the current jurisdiction. The court considered the content and extent of the publicity, including newspaper reports and other media coverage, and assessed whether this publicity would influence potential jurors and prevent them from making an impartial decision based solely on the evidence presented in court. The court also considered whether there were any measures, such as jury vetting or jury directions, that could mitigate the prejudicial effects of the publicity.

In dismissing the application, the court found that while the publicity was extensive and potentially prejudicial, it did not reach the level necessary to prevent a fair trial. The court held that the publicity did not contain any specific allegations of fact that would unduly influence jurors, and that measures such as jury vetting and appropriate jury directions could adequately address any potential bias. The court concluded that a change of venue was not warranted and that Vandergulik could receive a fair trial in the original jurisdiction.

The court did not grant the application for a change of venue and directed that the trial proceed in the original jurisdiction. The court's decision was based on its assessment that the publicity, while prejudicial, did not reach the threshold necessary to warrant a change of venue, and that appropriate measures could be taken to ensure a fair trial.

Orders