Re DC, DE and KS
[2024] VSC 676
•1 November 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0282
S ECR 2023 0283
S ECR 2023 0284
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| DC, DE & KS | Defence |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 October 2024 |
DATE OF RULING: | 1 November 2024 |
CASE MAY BE CITED AS: | Re DC, DE and KS |
MEDIUM NEUTRAL CITATION: | [2024] VSC 676 |
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CRIMINAL LAW – Murder and related charges[1] – Three co-accused – Jury trial – Change of venue application – Place of trial is presumptively [regional area][2]– Pre-trial ruling – Considerations applicable – Application for change of venue refused – Criminal Procedure Act 2009 s 192 – R v Vjestica (2008) 182 A Crim R 350 – R v Iaria and Panozzo (2004) 9 VR 425 – DPP v Bennett (2004) 10 VR 355.
[1]Various details have been redacted while the current trial is pending.
[2]All references to locations have been redacted and referred to as ‘[regional area]’.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A Moran with Ms M Sargent | Office of Public Prosecutions |
| For the Accused DC | Mr C Terry with Ms T Skvortsova | Chris McLennan & Co |
| For the Accused DE | Mr J Hanneberry KC with Ms E Strugnell | Matthew Mahady Criminal Law |
HER HONOUR:
Introduction
DC, DE and KS have been jointly charged with (murder and related charges).[3]
[3]DC has indicated that he will seek an order for severance of a separate related charge pursuant to s 193 of the Criminal Procedure Act 2009: Defence Response to Prosecution Opening (DC), 2 [19].
The proper venue for trial is [regional area]. The matter has been provisionally listed for a 4-week trial there, scheduled to begin in mid-2025.
Pursuant to s 192 of the Criminal Procedure Act 2009 (‘the Act’), DC and DE have applied to change the venue of trial from [regional area] to Melbourne. The applications are opposed by the Crown.
Mr Sala, who appeared for KS, did not join in any application for a change of venue by DC and DE, but was present in Court when the matter was discussed by counsel for the Crown, DC and DE at the hearing on 11 October 2024.[4]
[4]By email dated 30 August 2024, the Court advised that although KS is not making a change of venue application, she had been remanded to appear at the hearing on 11 October and should attend and be legally represented at that hearing as an interested party.
Alleged offending
The Summary of Prosecution Opening for Trial dated 25 June 2024 relevantly summarises the alleged offending as follows:[5]
[5]Summary of Prosecution Opening for Trial, [110].
Crown Case
[redacted]
[Redacted][6]
[6]Summary of Prosecution Opening for Trial, [73]–[77] (bolded emphasis in original).
Documents tendered
The following items were tendered for the Crown on the legal argument:
(a) Prosecution submissions in reply to applications for change of venue dated 23 September 2024;[7]
(b) Summary of prosecution opening dated 25 June 2024;[8]
(c) Affidavit of MT sworn 23 September 2024;[9]
[7]Exhibit P1.
[8]Exhibit P2.
[9]Exhibit P3.
And for DC:
(a) Written outline on behalf of DC dated 27 August 2024;[10]
(b) Affidavit of CML affirmed 10 October 2024 and accompanying exhibits;[11]
[10]Exhibit C1.
[11]Exhibit C2.
And for DE:
(a) Written outline on behalf of DE dated 23 August 2024;[12]
(b) Affidavit of DW sworn 23 August 2024.[13]
[12]Exhibit E1.
[13]Exhibit E2.
Legal principles
Section 192 of the Act provides that:
If a court considers that—
(a) a fair trial in a criminal proceeding cannot otherwise be had; or
(b) for any other reason it is appropriate to do so—
the court may order that the trial be held at any other place that the court considers appropriate.
In order for the presumption in favour of a local trial to be displaced and a change of venue granted, it must be shown that a change of venue is necessary for the purpose of securing a fair and impartial trial. The test of necessity is a stringent one requiring the applicant(s) to demonstrate how traditional safeguards are insufficient to prevent unfairness; however, as confirmed in R v Vjestica (‘Vjestica’),[14] citing R v Iaria and Panozzo,[15] there is no need for the applicant to show exceptional circumstances.[16]
[14]182 A Crim R 350 (‘Vjestica’).
[15](2004) 9 VR 425 (‘Iaria and Panozzo’).
[16]Vjestica 353–4 [4]–[6] (Maxwell P, Buchanan JA and Whelan AJA agreeing).
The Court of Appeal in Vjestica identified the kinds of traditional safeguards that may be available to avoid the need for change of venue. The case concerned a murder trial where the applicant sought a change of venue because eight local newspaper articles contained information that suggested a possible motive for murder in circumstances where the defence was that of accident, and the Crown were not planning to lead evidence of motive. The applicant argued that the pre-trial publicity was highly prejudicial.[17]
[17]Ibid 354 [8].
The kinds of traditional safeguards that could avoid the need for change of venue were said to include the excusing of any potential juror who might have difficulty deciding the case impartially; warnings and directions from the judge to the jury; and the discipline of participation in the trial itself.[18] The Court of Appeal found that a combination of careful jury selection and a strong judicial warning was sufficient to eliminate any actual or perceived risk of unfairness by reason of pre-trial publicity.[19]
[18]Ibid 353 [5].
[19]Ibid 361 [31]
Further relevant considerations to take into account when considering a change of venue application include the cost, expense and inconvenience involved, inclusive of any potential disruption to court schedules or resources and any potential delay.[20]
[20]Iaria and Panozzo, 428 [11] (Nettle J).
Finally, the important public policy rationale for justice being dispensed in the proper venue where the alleged offending occurred was pithily expressed by Cummins J in an oft-cited extract from DPP v Bennett (‘Bennett’):[21]
The local community is the community in which the alleged crime took place; it is concerned to have the law administered within it; and to remove a circuit trial to Melbourne can lead the vacated community to feel disenfranchised, marginalised or alienated. All this is common experience. This basal requirement should not be watered down by mere administrative convenience. This is the Supreme Court of Victoria, not the Supreme Court of Melbourne.
[21](2004) 10 VR 355, 356 [6].
DC’s arguments and evidence
The following bases were advanced in support of the application by DC:[22]
[22]Application for a Change of Venue of Trial DC]), 2 [6].
a.The index offences are alleged to have been committed in [regional area];
b. The co-accused have resided in [regional area], or in the greater [regional area] community, for a large portion of their lives. They were each residents of [regional area] at the time of the index offence;
c. [redacted];
d.The location where the deceased, CG, was found, and other locations the co-accused were alleged to have attended within 48 hours of his death, comprise part of the local [regional area] community;
e. One of the motives for the offending alleged by the Crown involves prior unrelated offending by other parties local to the [regional area];
f.The death of CG, and the resulting charges laid in respect of the accused in this matter, received considerable coverage in the local media;
g. Numerous members of the local community either provided formal statements, or were spoken to by Police in the course of their investigation;
h. His co-accused make an application for a change of venue for the trial to Melbourne.
DC's written arguments for a change of venue contend that there is a risk that, should the trial be held in [regional area], he will be impeded in his ability to select an impartial jury that is fairly representative of the local community, given the matters previously outlined above. He is thus unable to receive a fair trial (or at least the appearance thereof) in [regional area]. In respect of any additional expense or inconvenience to the Crown, it was argued that, for many civilian witnesses, applications to give evidence via audio-visual link would not be opposed; and for any residual civilian witnesses, in-person attendance would entail travel of a ‘reasonably short distance’ to attend from Melbourne.[23]
[23]Application for a Change of Venue of trial (DC), 2–3.
Ms Skvortsova, who appeared for DC, addressed the Court after Mr Hannebery, who appeared for DE. Ms Skvortsova adopted Mr Hannebery’s submissions regarding the requirements of s 192 of the Act and as to the relevant cases. She then referred to the breadth of media publicity regarding her client. She submitted, inter alia, that her client’s image had been a feature of those publications on several occasions, and was an image in which he does not appear as if he is adopting a conciliatory or friendly stance and was therefore perhaps ‘somewhat prejudicial’ to him.[24] There was also reference in some publications to DC’s [redacted].[25]
[24]TS 16.
[25](He had some summary matters on foot at the time in the Magistrates’ Court.)
[Redacted]. Furthermore, it would be expected that local people would read local publications with a keener eye than would occur elsewhere.
Ms Skvortsova submitted that there has been a broad-ranging investigation with many local witnesses spoken to by police, increasing the risk of wider knowledge. [redacted]. Many of the expert witnesses are based in Melbourne, and would not be inconvenienced if the trial were moved to Melbourne. Because there are three co-accused, the risks involved with a local trial are increased three-fold or exponentially.[26]
[26]‘[T]he risks insofar as they relate to DC are then magnified or amplified, at least by threefold, but in Mr Hannebery’s submission in fact exponentially and I perhaps adopt that too, just by the sheer number of the accused in this matter that will be tried before the one jury’: TS 20.
Concerning a view, Ms Skvortsova submitted that it could not reasonably be said that the contemplated view (and the logistics adverted to in the Crown’s materials – discussed further below) would take so much longer that this would be a salient consideration for the Court. Other considerations should cause the Court to accede to the change of venue application.
CML affidavit
A short affidavit of DC’s instructor, CML, was provided in support of counsel’s written submissions concerning media publications relating to his client. A summary table was exhibited capturing relevant information located within or about those online publications.[27]
[27]The following information for each relevant article was identified in individual columns: date of publication/reporting; title or heading of publication/reporting; media outlet which published the article; reference made to DC in the article, beyond reference to his name, age and the fact of his being arrested or charged in respect of the index matter; online address at which the article can be located; and images of DC within the publication.
DE’s arguments and evidence
On behalf of DE, the following matters were relied on:[28]
1. [redacted]
2.The extensive local media reportage of the proceedings, such that a very substantial portion of prospective jurors are likely to have an opinion or at least a level of knowledge of the applicant and the allegations.
3.The broad scope of the criminal activity alleged, both as part of the charged offence and the relevant contextual background; being related [redacted]
4.The risk inherent to the efficient running of a trial run in [regional area], specifically the elevated possibility of jury contact with any of the persons involved in the proceedings- witnesses, judicial officers, counsel, solicitors, and their families, given the anticipated duration of the trial.
[28]Application for a Change of Trial Venue (DE), 3 [9].
DW affidavit
An affidavit of DE’s mother, DW, was provided in support of his application. This deposed to her family’s history since moving to the area, her employment and volunteering history in and around [regional area], and the fact that DE was generally well-known in the [regional area] area.
The affidavit states that DW has previously worked or volunteered in the following roles in the greater [regional area] region:
(a) [redacted];
(b) [redacted];
(c) [redacted];
(d) [redacted].[29]
[29][redacted]
The affidavit also deposed to the following incidents experienced by DW since DE’s arrest:[30]
[redacted].
[30]Affidavit of DW sworn 23 August 2024, 2 [7].
Submissions
DE’s written submissions in support of his application for a change of venue contended that he cannot get a fair trial in [regional area], and that the ‘smooth running’ of the trial is also more likely to be achieved in another venue.[31] The test formulated by Nettle J in Iaria and Panozzo,[32] and its application in various subsequent cases,[33] was noted.
[31]Application for a Change of Trial Venue (DE), 1 [3].
[32](20024) 9 VR 425, quoting with approval the formulation by Pincus JA in R v Yanner [1997] QCA 416.
[33]Including R v Bradley [2015] VSC 257; R v Cardamone [2017] VSC 225; R v Hague [2017] VSC 716; R v Allan (Change of Venue) [2018] VSC 571; and also Vjestica. The statutory and case law framework articulated by counsel for DE was adopted by counsel for DC at the hearing on 11 October as indicated above.
Regarding the [redacted] of DE’s family and media coverage and reporting, it was submitted that DE had been identified in media reporting by his full name, age and place of residence. Details of such matters as his family’s place of residence, and his mother’s previous employment in and around [regional area], had been referred to in the media. The deceased’s passing was widely reported by local media, ‘at a level substantially more consequential than the reporting evident in Melbourne’.[34] Numerous reports in various media outlets were identified. It was submitted that media reporting had included at least six distinct images of the deceased, and blurred/unblurred images of co-accused DC; and media had reported on various aspects of the case thus far.
[34]Application for a Change of Trial Venue (DE), 4 [6].
The extensive media reporting was said to be such that most prospective jurors would be likely to have an opinion or knowledge of the accused and the allegations, which would likely be adverse to the accused. Whilst the risk of pre-trial publicity inherent in high-profile trials was conceded, DE’s lawyers submitted that the risk posed to the integrity of the trial was more acute in a regional centre like [regional area], and would persist to a greater extent throughout what will no doubt be a relatively lengthy trial.
Regarding the nature of the alleged offending itself, it was submitted [redacted]. The nature of the allegations against DC, DE and KS, and [redacted] mean that there would be an extensive number of relevant names and places announced to the jury pool during empanelment. The reality or perception of a fair trial would be more difficult in [regional area] due to the difficulty of selecting and then maintaining a jury disassociated from the trial participants or from prejudicial knowledge.
The following risks were referred to as increasing the risk that a jury would need to be discharged if the trial was held in [regional area]:[35]
[35]Application for a Change of Trial Venue (DE), 3 [9].
(a) Duration of the trial;
(b) Proximity of the court to the [regional area] CBD;
(c) Limited availability of accommodation and dining options; and
(d) Likelihood that jurors will encounter the presiding judge, counsel or their instructors, the accused’s and deceased’s family and supporters during the trial, notwithstanding judicial directions.
At the oral hearing, Mr Hannebery noted that s 192 of the Act involves two limbs regarding the power to change place of trial, and that the first limb, under which the Court considers that a fair trial cannot otherwise be had, was a high bar to meet, but the alternative second limb, being where ‘for any other reason it is appropriate to do so,’ allowed a wider basis for the Court’s intervention.
It was emphasised that applications for change of venue turn on the individual circumstances of each case, and that in this case the accused is facing the most serious of murder. All three accused are from the [regional area] region where the trial is proposed to be held, and DE still has family in that area. [redacted].
Mr Hannebery argued that the trial is estimated to take 4 weeks, which would involve a greater risk of something going wrong, such as a juror being exposed to prejudicial material. The Crown have indicated they wish to hold a view at various local points of interest, but to do so would increase the footprint of the trial. The case has already had considerable media coverage and there will be more intense interest close to where the alleged offending occurred. With all the technology now available, such as video links for witnesses, there is less need to hold the trial in [regional area]. Media are often given live links for trials nowadays, so the presumption in favour of local venue can be regarded as less compelling than when Cummins J ruled in Bennett.
In Mr Hannebery’s submission, while reliance was primarily placed on the second limb of s 192, there was nevertheless a higher risk of an unfair trial if the trial is held in [regional area], because there would be a higher risk of jurors being exposed to prejudicial material. Whilst conceding that the empanelment process is potentially protective, Mr Hannebery submitted that with three accused, and a trial of substantial length, the risk of the jury being exposed to prejudicial material would increase. This risk could be mitigated by moving the trial to Melbourne. Any added cost or inconvenience involved would be minimal, and the Crown’s argument for keeping the trial in [regional area] – based on the planned jury view – was not a factor in favour of local venue, but rather a factor against it, because it would increase the risks of the jury being exposed to prejudicial material.
Crown’s arguments and evidence
MT affidavit
An affidavit of Crown instructor, MT, was provided in response to DC and DE’s applications.
At the date of swearing this affidavit (23 September 2024), the Crown had not been provided with copies of newspaper or media articles concerning publicity of the alleged offending (as to which see, subsequently, the affidavit of CML for DE, previously summarised above).
Data regarding the [regional area] jury district was identified, and copies of a 2006 Jury Districts map[36] and 2020 Victorian Jury District Boundaries map[37] were exhibited. As at 5 December 2006, there were said to be 68,557 potential electors within a 60km radius of the [regional area] courthouse who could potentially be summonsed for jury duty. As at the time of swearing this affidavit, however, Juries Victoria had not been able to provide a version of a map showing precise district elector numbers (as had been shown on the 2006 map). In lieu of this, census data from the Australian Bureau of Statistics was cited in support of the proposition that the population of the [regional area] local government area (and thus potential jurors) had increased almost 53% from 2006 to 2021; and that the population in the State of Victoria was 4.932 million in 2006, and 6.503 million in 2021 (an increase of 31.8%).
[36]Exhibit MPT-2.
[37]Exhibit MPT-3.
A breakdown of the current Crown witnesses was also provided:[38]
There are 20 civilian witnesses that reside in the [regional area]region (this includes [regional area] and [regional area])
There are three civilian witnesses that reside in Melbourne
There are 14 police witnesses that are based in the [regional area]region
There are 13 police witnesses that are based outside the [regional area]. This includes a number of Homicide Squad detectives
There are even expert witnesses based in Melbourne
There is one expert based interstate.
[38]Affidavit of MT sworn 23 September 2024, 6 [20].
It was observed that the majority of the witnesses residing or based in Melbourne are police/professional witnesses, and thus accustomed to travelling to regional Victoria to give evidence in court. Conversely, it was said to be more challenging for civilian witnesses to give evidence if they had to come to Melbourne.
The Crown embraced the relevant principles to be extracted from cases concerning change of venue including Vjestica,[39] Bennett[40] and Iaria and Panozzo.[41]
[39](2008) 182 A Crim R 350.
[40](2004) 10 VR 355.
[41](2004) 9 VR 425.
The Crown submitted that it will seek a view in this trial, the complexity, length and importance of which was characterised as follows:[42]
The prosecution intends to seek a view during the trial, involving multiple locations in and around [redacted]. The view will assume significant probative value in a trial where the prosecution will submit that the evidence of the travel undertaken by the three coaccused is only consistent with the [redacted] of the victim, as opposed to an alternative innocent explanation. The prosecution will submit that the remoteness and distances involved in following this path can only be properly understood by a jury by replicating it for them. This will involve travel during the view of between 100 and 200 kilometres, with several stops throughout. This will be extremely difficult and costly to facilitate for a Melbourne jury, and would almost certainly require a Melbourne jury to stay overnight in [regional area], due to the distances involved, both during the view and in transit from Melbourne to [regional area] and back. The need for a view should be viewed against any submission that a trial run in Melbourne would be easier to facilitate as a matter of administrative convenience.
[42]Prosecution Submissions in reply to Applications for Change of Venue of the Trial, [3] (italics in original).
The Crown made submissions in response to DE’s application specifically, which were then adopted in response to DC’s application.[43] It was argued that none of the matters identified by the applicants, either individually or in combination, led to the conclusion that any of the accused could not receive (or be seen to receive) a fair trial in [regional area].[44]
[43]Ibid [24].
[44]Ibid [28].
In reply to the bases for change of venue identified in DE’s application, the Crown submitted as follows.
Regarding the [redacted] of the applicant’s family, the affidavit of DW does not establish that the DE family is [redacted] in the [regional area], but rather establishes that some people in the area may know, or know of, that family. The indicative data from 2006 obtained by the Crown and referred to in MT affidavit was that there were nearly 69,000 jurors in the relevant radius of the [regional area] courthouse at that time (a number which is likely to have grown substantially since), meaning that there is ample scope for ensuring that the jury is not compromised by any person that knows, or knows of, any of the accused to any problematic extent.
Whilst the roles in which DW has worked may mean she is recognisable to some people in the [regional area], the number of people who could or would make a connection between her and DE is likely to be vastly less than those who are simply familiar with her face, or know her name.
In the Crown’s submission, there was nothing in the circumstances advanced by DE in relation to the [redacted] of his family which could not be remedied by asking for a larger-than-usual jury pool, and giving the jury pool clear directions about the circumstances in which they must seek to be excused.
Regarding media reportage of the proceedings, it was submitted that this case was a ‘relatively modest’ example of media coverage, and that media coverage will not compromise the ability of each accused to receive a fair trial.[45] Of the news coverage referred to, some of it was state-wide, and thus just as likely to have been seen by potential jurors elsewhere than [regional area]. In any case, the empanelment process is available to deal with that issue. There is nothing in the nature or extent of that media coverage giving rise to a concern about the accused being able to receive a fair trial in [regional area]. The capacity of jurors to put aside preconceptions, follow warnings and directions from the trial judge, and decide the case only on the evidence, is well-recognised.
[45]Ibid [17].
Regarding the broad scope of the criminal activity alleged, the names and nicknames of KS and TM (and any and all other relevant people) would be a part of the list of names read out to the jury, whether or not the trial proceeds in Melbourne or [regional area], and this is part of the in-built protections of the jury system to ensure fair trials. Any concern that members of the jury may know any of the accused can be dealt with through the standard challenge procedure.
Regarding risk inherent to the efficient running of a trial in [regional area], it was submitted that trials regularly run to conclusion in regional Victoria without incident. Without more, it was submitted that the Defence point out that running a trial in a regional location provides more scope for people to run into each other than they would in a larger city venue. The lawyers involved in the case are experienced and know how to navigate the issue; and witnesses will be warned by the Crown and presiding judge about the care they need to take while the trial is running. These concerns can be emphasised to jurors in the trial judge’s jury directions, over and above what is standard in every criminal jury trial.
In response to the oral submissions of Mr Hannebery and Ms Skvortsova, Ms Moran:
(a) Rejected Mr Hannebery’s proposition that recent technological advances should be seen as weakening past considerations referred to in change of venue rulings. She noted that most cases referred to by the Defence occurred in the past 15 years when the relevant technological considerations would have been the same or similar. This did not dislodge the philosophical starting point that it is in the interests of justice and the local community that the matter be tried in that local community.[46]
[46]Relatedly, Ms Moran submitted, regarding the suggestion that a local courthouse could be supplanted by a livestream link, that it is not just about people being able to go and watch the proceedings; rather, it is about a local community having a sense of ownership about the criminal justice system in their own jurisdiction, as explained by Cummins J in Bennett: TS 28.
(b) Argued that the factors relied on by DC and DE, either alone or in combination, were not unusual or out of the ordinary, and instead were commonplace matters in most murder trials wherever held.
(c) Rejected Ms Skvortsova’s submission that there was no great difference for a jury attending a view in [regional area] coming from Melbourne compared to [regional area]. On the Crown’s calculation, following the path allegedly taken by the accused would take at least two hours by car and entail six stops, likely requiring a Melbourne-based jury to be accommodated overnight in [regional area], and involving significantly more expense and difficulty.
(d) Submitted that media coverage is to be expected in homicide cases, and there was nothing unduly prejudicial in the past reporting about either accused who are currently seeking a change of venue. Whilst there is more coverage of DC than DE, that coverage is online for all the world to see. Much of the past coverage about DC is now quite dated and will be long forgotten. [redacted].
(e) [redacted].[47]
(f) Submitted, regarding video links, that it would be expected that all critical witnesses would attend in person.
(g) Summarised that there is nothing before the Court showing a high risk attached to running the trial in [regional area] compared to Melbourne, and there are in-built protections available such as the jury selection process and the giving of warnings. Cause had not been shown for a change of venue and the fairness of the trial would not be placed in jeopardy in [regional area].
[47][redacted]
Consideration for DC
Regarding the claimed difficulty for DC in obtaining an impartial and representative jury, I consider that with a sufficiently large panel and a tailored approach to jury selection, there will be no unfairness to him. Likewise, concerns about publication of his image, remand status and other identifying details, and concerns about [redacted], can all be met by calling for a sufficiently large jury panel and ensuring that potentially compromised jurors are excused. I note in this regard that all of the media articles exhibited to CML’s affidavit and concerning DC spanned a period of December 2022–November 2023, whereas the current trial date for this matter is mid-2025.
Whilst DC took issue with the submission that the holding of a jury view would be more difficult to achieve with jurors attending from Melbourne, I reject that argument. It would clearly be more difficult and time consuming for a jury to have to attend from Melbourne, rather than from the local area, particularly noting the complex, time-intensive and multi-destination nature of the view proposed by the Crown in this case.
Consideration for DE
As to DE’s argument that he cannot get a fair trial in [regional area], and that the 'smooth running' of the trial is also more likely to be achieved in another venue, I consider that there is no reason to suppose that, with careful management, DE's trial cannot be protected from unfairness or from running a smooth course.
While I accept that DE has been identified in media reporting by his full name, age and place of residence, this is not an uncommon occurrence. Again (as noted in respect of DC above), the media publications to which the Court’s attention were drawn span a period of December 2022–November 2023,[48] whereas the current trial date for this matter is mid-2025. A jury panel would be told to advise the Court as to any prejudicial knowledge they may have been exposed to that might cause them to not be impartial. Regarding the asserted [redacted] of DE's family, or the risk that jury panel members might know a relative of DE, this again is a matter that can be protected against with a sufficiently large jury panel and a carefully tailored selection process.
[48]Application for a Change of Trial Venue (DE), 4 [6]; that document also cited social media sites of these publications, and the Facebook page [redacted].
Regarding the suggestion that technological advances make local venue less important, I reject that submission. The [regional area] courthouse services the population of [regional area] and outlying areas and its utility as a functioning trial court cannot be supplanted with a virtual link to a Melbourne courtroom. That does not represent local justice being dispensed with in the community affected by the alleged crime. The [regional area]Magistrates’ Court[49] is a modern courthouse well equipped with a range of facilities to ensure the smooth running of a trial of this nature.[50]
[49][redacted].
[50][redacted].
As to the argument that the [regional area] court’s location poses more scope for people to run into each other than if the trial were in Melbourne, I consider this issue can be carefully managed by a disciplined approach by all trial participants and by warnings to the jury.
The matters raised in DW’s affidavit were appropriately notified to police and police can assist in preventing such issues in the future. Such issues do not tell against a trial being held in [regional area].
Conclusion
Ultimately, I am not persuaded by DC or DE’s arguments that there is a need for the trial to be moved to Melbourne. Indeed, there are factors that strongly favour the trial being held in [regional area], over and above the obvious factor that the proper venue for the trial is [regional area]. The Crown intends to seek a jury view during the trial, involving multiple locations, and it would be greatly more inconvenient and expensive to undertake that process with a jury from Melbourne.
I agree that the matters referred to by DC and DE do not, either individually or in combination, lead to the conclusion that they could not receive a fair trial in [regional area], or that it is appropriate to move the place of trial for any other reason. The media coverage referred to by the parties can be adverted to in the jury selection process so that protective steps can be taken.[51] I agree that experience has shown, time and again, that jurors – even in high publicity criminal trials – are able to put aside preconceptions, follow warnings and directions from the trial judge, and decide the case only on the evidence. A fair trial can be provided to DC and DE at the[regional area] courthouse.
[51]See, eg, R v Allan (Change of Venue) [2018] VSC 571, [53] (Taylor J): ‘The temptation to click on links of even a favourite, local newspaper website or Facebook page is amenable to direction.’
For the above reasons, the applications for change of venue in this matter are refused.
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