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 is not uncommon whenever a motor cycle club visits the Northern Territory for that fact to be widely reported by the media. There is no evidence as to whether that is so or not on this occasion.
I was referred to the statement of one of the security staff who had had previous dealings with the club on another occasion, in which he stated that he recognised a person called Patrick who was the president of the club. Similar references were made in the statement of another security officer. It was suggested that these witnesses believed that the motor cycle club had a reputation for violence and that this was likely to be a reflection of the general reputation of the motor cycle club amongst the town.
I reject that submission. The fact that one or two security officers have had previous dealings with the club interstate is an inadequate basis for drawing any inference as to what the club's reputation might be in Alice Springs. There is some evidence that the club had visited Alice Springs the previous year. Another witness, who is also a security officer, said in his statement that he had had a run in with a member of the club at the Alice Springs Turf Club the previous year. Apart from that, it is not suggested that the members of the club gained any particular notoriety for bad behaviour on any previous visit to the town,
It is not surprising that many who are employed in the security industry and who have worked in that industry interstate, would have an interest in large groups of visitors to the town, whether they are members of a motor cycle club, or a football club, or any other kind of club, particularly a club mainly consisting of single, unattached males. As Mr Elliott for the Crown submitted, that is their stock in trade as security men. Whatever views or information they are likely to have is not necessarily representative of the information and views of the community as a whole.
Mr Furstenberg says in his affidavit, that the incident was widely publicised in Alice Springs on radio and television and in the press, generally in terms of "an interstate bikey gang brawling with Alice Springs residents". Attached to the affidavit were copies of cuttings of two newspaper articles published in the Alice Springs local press. The first article was published in the Centralian Advocate on Tuesday, March 13 2001 and refers to the incident at the Bojangles Saloon just after midnight on the previous Saturday. The headline reads "Bikey brawl: "all hell broke loose"". It refers to two men being charged over a "wild weekend brawl" which saw an Alice Springs man allegedly "glassed". The article goes on to say that the men are both members of "an interstate bikey gang". Neither of the men is named.
The second report is a cutting from a newspaper article – probably the Centralian Advocate, although the source of the cutting is not identified, and probably published around 13 March as well, although the date of the publication is not identified either. The report has a headline "Police seek help". The article says "Police are calling for witnesses to come forward after a brawl at Bojangles early last Saturday morning". Apart from that, nothing much else is said.
Section 297(2) of the Criminal Code provides:
When an indictment has been presented against any such person the court may, on the application of the Crown or the accused person and upon good cause shown, order that the trial shall be held at some place other than that named in the indictment and at a time to be named in the order.
I have been referred to and reviewed a large number of authorities relating to change of venue. I will not refer to them all. In R v Loizos Georgiou & Others [2002] QCA 206 (BC200203210) the Court of Appeal of Queensland said in relation to the test at para 23:
It is universally recognised that the test to be applied at the time of a pre-trial application for a change of venue is whether the risk of prejudice to a fair trial is so grave that no direction by the trial judge, however careful, could reasonably be expected to remove it. That is effectively the test derived from cases such as The Queen v Glennon [1992] 173 CLR 593, R v Yanner [1998] 2 QdR 208, Montgomery v HM Advocate [2002] 2 WLR 779 and Morris v The Queen, unreported, Supreme Court of Victoria, JD Philips J, 16 September 1991.
In this jurisdiction, the test was recently stated by Martin CJ in the case of ACH (2002) 130 A Crim R 40 at 43:
Although the applicant must persuade the Court that the order sought be made, with respect, I agree with Debelle J in Webb (1992) 64 A Crim R 38, where the leading authorities in this field are extensively reviewed. Notwithstanding the somewhat higher standards of proof which have been applied in some other cases, his Honour's formulation of the test is that the court must be satisfied that there are grounds on which it is reasonably satisfied that there is a reasonable possibility that the applicant will not have a fair and impartial trial. The discretion, though wide, will not be lightly exercised.
His Honour noted in that case that the jury roll for Alice Springs is of the order of 13,000 people.
Other factors, such as the cost of shifting the trial from Alice Springs to Darwin and the delay involved in ordering a change of venue at this stage, whilst relevant, are subsidiary to the overriding question of whether a fair trial can take place in Alice Springs: see R v Anderson (1974) 5 ALR 268; Hartley v The Queen (1989) 1 WAR 224. I note that there is likely to be considerable cost and inconvenience to the Crown and its witnesses if a change of venue is ordered. Likewise, such an order would inevitably delay the trial in this case, which is set for next month, into 2004.
So far as the publicity and the media are concerned, that is now very stale being well over two years old. The media publicity was not all that extensive compared with other cases such as, for instance, the publicity in

R v Loizos Georgiou.
I do not think that there is any significant risk that the jury panel is likely to be in the least bit influenced by what they may have read in the Centralian Advocate two years ago, or that there is any real risk that they will remember it, or if they do remember it, that they will relate it to this particular case. Any possible prejudice is extremely remote and can be adequately dealt with by appropriate directions to the jury.
I do not think there is any evidence from which I could draw the inference that it would be impossible to empanel an unbiased jury. I am not satisfied that any proper reason for changing the venue has been made out, and that a fair trial in Alice Springs can not be had. Accordingly, the application is dismissed.
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