R v Went and R v Taylor - [2003] NTSC 45

R v Went and R v Taylor [2003] NTSC 45
PARTIES:THE QUEEN
v

ANDREW WENT

AND

BRETT TAYLOR

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:  20103587 and 20103597
DELIVERED:  02 May 2003
HEARING DATES:  16 April 2003
JUDGMENT OF:  MILDREN J
REPRESENTATION:
Counsel:
Prosecution:  Mr A Elliott
Accused Went  Mr A Lewenberg
Accused Taylor  Mr J Montgomery

Solicitors:
Prosecution:  Office of Director of Public Prosecutions
Defendants:Lewenberg & Lewenberg
Judgment category classification:    C
Judgment ID Number:
Number of pages:  7

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
R v Went and R v Taylor [2003] NTSC 45

No. 20103587 and 20103597
BETWEEN:

THE QUEEN

Plaintiff

V

ANDREW WENT
Defendant

AND

BRETT TAYLOR
Defendant

CORAM: MILDREN J
REASONS FOR RULING
(Delivered 02 May 2003)

On Wednesday 16 April 2003 an application was made by counsel for the accused for a change of venue. The accused are each charged with unlawfully causing grievous harm and aggravated assault, the offences having been alleged to have occurred on 10 March 2001 at Alice Springs.
This matter was originally given a trial date in November 2002 but it did not then proceed. An application for a change of venue was foreshadowed. Having heard counsel for each of the accused, I rejected the application and said that I would publish my reasons later. I now do so.
The evidence in support of the application is an affidavit sworn by

Mr Furstenberg, a solicitor in the employ of Lewenberg & Lewenberg, solicitors for the accused. The offences with which the accused have been charged are alleged to have occurred at a place called the Bojangles Saloon Bar in Todd Street, Alice Springs. The complainant is a resident of Alice Springs. At the time of the incident, the bar was crowded and overwhelmingly patronised by Alice Springs residents. Approximately

30 Crown witnesses, who resided or worked in Alice Springs at the time of the alleged incident, may be called to give evidence. The prosecution witnesses include the complainant, six friends of the complainant, two bar staff, five security staff, Mr Shane Ride the employer of the security staff, three patrons of the bar, two medical witnesses and six police.
According to the statements of some of the witnesses, they were aware that the "Finks Bikey Gang" was in town. Reference was made by counsel to six of the witnesses' statements to this effect. The source of the information is either that the person concerned heard a rumour, or that the person concerned saw members of the "gang" drinking in the Todd Tavern on an earlier occasion. It was submitted that I should infer from this evidence that it was common knowledge in the town, Alice Springs being a relatively small place, that the Fink Motor Cycle Club had arrived.
I think I can take judicial knowledge of the fact that Alice Springs is a town of now some 26,000 inhabitants. It…

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.

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Details

Case: [2003] NTSC 45
Decision Date: 02 May 2003

CaseChat Overview and Summary

The defendants, Andrew Went and Brett Taylor, faced charges of unlawfully causing grievous bodily harm and aggravated assault, with the alleged incident occurring on 10 March 2001 at the Bojangles Saloon Bar in Alice Springs. The case was heard in the Supreme Court of the Northern Territory, presided over by Mildren J. Both defendants sought a change of venue from Alice Springs to Darwin, citing concerns over potential bias among local jurors due to extensive media coverage and public discussion about the incident.

The legal issue before the court was whether the defendants were likely to receive a fair trial in Alice Springs given the pre-existing local knowledge and media coverage of the incident. The court had to consider the balance between the defendants' right to a fair trial and the practicalities of relocating the trial, including the costs and delays involved.

Mildren J reviewed the evidence presented by the defence, which included statements from witnesses and media clippings, to assess whether there was a significant risk of prejudice to the defendants. The judge concluded that the media coverage was over two years old and not extensive, and that any potential prejudice could be mitigated through jury instructions. Additionally, the judge found that the evidence did not support the inference that the local community held a uniformly negative view of the defendants based on the media reports. Consequently, the application for a change of venue was dismissed, as the court determined that a fair trial could indeed be conducted in Alice Springs.

In summary, Mildren J dismissed the application for a change of venue, finding that there was no reasonable possibility that the defendants could not receive a fair trial in Alice Springs. The trial was therefore set to proceed as scheduled in Alice Springs.

Orders