Re Patterson
[2024] VSC 448
•30 July 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0100
| IN THE MATTER of the Criminal Procedure Act 2009 (‘the Act’) | |
| and | |
| IN THE MATTER of an application under s 199 of the Act | |
| BETWEEN: | |
| ERIN PATTERSON | Applicant |
| v | |
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 July 2024 |
DATE OF RULING: | 30 July 2024 |
CASE MAY BE CITED AS: | Re Patterson |
MEDIUM NEUTRAL CITATION: | [2024] VSC 448 |
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CRIMINAL LAW – Place of trial – Pre-trial ruling – Accused charged with murder and attempted murder – Criminal Procedure Act 2009 ss 11, 160, 169, 192, 199 – Crimes Act 1958 ss 9, 359 – Magistrates’ Court Act 1989 s 3 – Commonwealth of Australia Constitution Act 1900 s 80 – DPP v Towle (Ruling No 1) [2007] VSC 551 – R v Giddings [1916] VLR 359 – R v Patterson, Hartley and Carrighan (1867) 4 WW & A’B (L) 43 – R v Iaria and Panozzo (2004) 9 VR 425 – R v Wilkie (2005) 64 NSWLR 125 – Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 – Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 – SZTAL v Minister for Immigration and Border Protection (2017) 26 CLR 362 – DPP v Leys (2012) 44 VR 1 – Hynes v Bux (Supreme Court of Victoria, Nathan J, 13 November 1996).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C Mandy SC with Ms S Stafford | Doogue + George |
| For the Respondent | Ms K Judd KC with Ms J Warren and Ms S Lenthall | Office of Public Prosecutions |
HER HONOUR:
Introduction
This matter concerns the wording and meaning of s 169 of the Criminal Procedure Act 2009 (‘CPA’) which deals with ‘Place of hearing of criminal trial’. The accused, EP, has been committed to stand trial on three charges of murder and five charges of attempted murder. The first four charges relate to alleged victims Heather Wilkinson, Gail Patterson, Donald Patterson and Ian Wilkinson. All the remaining charges relate to the accused’s former husband Simon Patterson.
In essence it is alleged that on 29 July 2023, Heather Wilkinson, Gail Patterson, Donald Patterson and Ian Wilkinson all attended a lunch prepared for them and presented to them by EP at her home in Leongatha, and that she added a poisonous substance to the luncheon food which led to the deaths of Heather Wilkinson, Gail Patterson and Donald Patterson and nearly killed Ian Wilkinson. It is further alleged that EP engaged in similar conduct (the administration of poison) in 2021 and 2022 in respect of her husband Simon Patterson.
At this stage no indictment has been filed and no Crown opening has been prepared, as the case has been committed to this Court for managing through our fast-track process, and s 198B examination of witnesses will occur in lieu of cross-examination of witnesses at committal.[1]
[1]Ms Judd indicated that it is the Crown’s preference no indictment be filed until after the s 198B examinations: Transcript (‘TS) 4.
The Director, Ms Judd KC, advises that it is proposed that, subject to anything arising in the course of the s 198B examinations, a single trial indictment will be filed and will include four or five attempted murder charges.
The Director helpfully tabulated the current proposed charges and indicative location for the framing of each offence as follows, noting that since the three alleged murder victims died at the Austin Hospital in Heidelberg, the place nearest to where the offence is alleged to have been committed for those three persons is the Supreme Court at Melbourne:[2]
[2]Crown’s submissions, 2 [6].
Charge Alleged Location of Offence Closest Court Venue 1 Murder of Heather Wilkinson Heidelberg Melbourne 2 Murder of Gail Patterson Heidelberg Melbourne 3 Murder of Donald Patterson Heidelberg Melbourne 4 Attempted murder of Ian Wilkinson Leongatha LaTrobe Valley 5 Attempted murder of Simon Patterson Leongatha LaTrobe Valley 6 Attempted murder of Simon Patterson Korumburra LaTrobe Valley 7 Attempted murder of Simon Patterson Howqua Wangaratta 8 Attempted murder of Simon Patterson Wilson’s Promontory LaTrobe Valley
Attached to the current brief of evidence is a summary of the alleged offending prepared by the Informant, which states inter alia:[3]
On the 29th of July, 2023, at approximately 12.30pm, at her home address of 84 Gibson St, Leongatha, the Accused Erin Patterson prepared and served a meal of beef wellington, mashed potatoes and beans to her four guests: Donald and Gail Patterson who were her parents-in-law; and Ian and Heather Wilkinson who were her estranged husband Simon Patterson’s Uncle and Aunt. Simon Patterson was invited to the fatal lunch on the 29th of July 2023, however decided not to attend and communicated that to Erin Patterson the night prior. Erin Patterson asked him to reconsider, and the invitation remained open but unaccepted. The beef wellington was prepared by Erin Patterson and utilised death cap mushrooms which she had researched, sourced and dehydrated in preparation for the meal. All four of Erin Patterson’s guests developed severe gastro type symptoms approximately 11-12 hours after consuming the meal. All four required hospitalisation however Gail Patterson and Heather Wilkinson succumb to the poisoning on the 4th of August 2023, and Donald Patterson passed away on the 5th of August, 2023. Ian Wilkinson survived however was hospitalised for nearly two months and spent significant time in a coma. Erin Patterson did not become ill after this meal and later fabricated an illness in an attempt to divert suspicion. This was not the first time that Erin Patterson had utilised death cap mushrooms to poison someone; in November 2021 and May 2022 she utilised death cap mushrooms in meals she prepared for her husband Simon Patterson which required significant medical intervention to save his life. In September 2022 Erin Patterson used an unknown agent to again poison Simon Patterson.
[3]Police summary filed 7 May 2024, p. 00009.
The Director submitted that for the three murder charges, although the Crown will allege that the accused performed the actus reus of those offences in the vicinity of Leongatha, the indictment will be framed on the basis that the three murders occurred at Heidelberg on the date each person died, noting that the three deceased died at the Austin Hospital in early August 2023. Ms Judd submitted that it could not be said that it is not open for the Director to frame the three charges for murder based on the date and location where death occurred, and that indeed the ‘terminatory’[4] theory of jurisprudence provides the basis for doing so.
[4]See, eg, Glanville Williams, ‘Venue and the Ambit of Criminal Law’ (1965) 81 Law Quarterly Review 518, included in the Crown’s filed List of Authorities. The Court was referred to a large number of authorities in this list, and in the parties’ submissions and oral argument generally. It has not ultimately been necessary to refer to each of those authorities in this ruling, but reference to certain cases here should not be taken to indicate that the Court’s consideration has been limited to those cases only.
This was said to be the usual practice that is employed when framing indictments where death does not occur on the same day or at the same place as the actus reus of the offence, although there had been some notable exceptions to this practice.[5] Since the murder charges will be framed on the indictment as having been committed in Heidelberg, according to the Director, pursuant to s 169 of the CPA the proper venue for trial is Melbourne. Indeed, the Director submitted that s 169 dictates that the trial is to be held in Melbourne subject to any change of venue application that may be brought.[6]
[5]For example the case of R v Allan [2018] VSC 571, as referred to in the Defence’s submissions at 5 [20]. The Director described this as an ‘aberration’ and ‘not the usual course’: TS 5.
[6]Crown’s submissions, 4 [14]
The issue to be determined
The Director submits that since the indictment, when framed, will join both murder charges and attempted murder charges, the three principal charges of murder should hold sway in the determination of the proper venue for trial. I did not understand the Defence to be quibbling with that specific proposition, without foreclosing their position regarding any future severance application concerning the Simon Patterson attempted murder charges which allegedly arise from earlier dates and other locations.[7]
[7]The Crown proposes to rely on coincidence evidence to link the Simon Patterson charges on the same indictment and submits that those charges form part of a series of offences of a similar character to the first four charges which relate to the lunch on 29 July 2023; therefore, the charges should be heard jointly in the same proceeding (per s 170 CPA) unless the Court orders a separate trial pursuant to s 193 CPA: refer Crown’s submissions, 2–3 [7].
Carrying through with their argument that the three murder charges should hold sway in determining place of trial, the Director submits that the proper venue for the accused’s trial, according to established legal principles and the wording of s 169, is Melbourne, and further, that Melbourne is also the most appropriate venue for trial in this matter.
The Defence contends that the three murder charges should be regarded as having allegedly been committed in Leongatha since the actus reus for each murder is alleged to have occurred there, leading to the Latrobe Valley courthouse being the proper venue for trial, not Melbourne.
Accordingly, the key matter for determination is how to interpret s 169(1) of the CPA in determining the place of hearing for a criminal trial. This appears to be a novel question, with neither the Crown nor the Defence (nor, indeed, the Court) being able to identify any previous example of a determination pursuant to s 169.
An anterior question raised for consideration was as to which party has brought this matter before the Court for determination. Ultimately, I conclude that it is the Defence who seek to have the Court rule on the matter of proper venue pursuant to s 199 CPA.[8] I decline to adopt the alternative characterisations of this question advanced by the Crown.[9] Section 199 CPA allows for the Court to make orders and decisions before trial and relevantly provides as follows:
[8]Indeed, the Crown disclaimed any bringing of this application by it: refer TS 1.
[9]Ms Judd submitted that the Court could variously decline to make any order; or make a declaration (that Melbourne is nearest to the place where the offences of murder are alleged to have been committed); or treat the matter as an application by the accused for a ruling that it is not open to frame the indictment in the way foreshadowed by the Crown; or treat the matter as an application by the accused to change the place of trial pursuant to s 192 of the CPA.
199 Court may make orders and other decisions before trial
(1)At any time before trial, the court may hear and decide any issue with respect to the trial that the court considers appropriate, including—
(a)an issue of law or procedure that arises or is anticipated to arise in the trial, including an issue as to admissibility of evidence;
(b)an issue of fact, or mixed law and fact, that may be determined lawfully by a judge alone without a jury, including an issue as to admissibility of evidence;
(c)an application for an order that may be made in relation to the trial under this or any other Act or at common law, including an application to quash a charge in the indictment;
(d)any other issue with respect to the trial.
[…]
(4)Nothing in this section limits the power of the court to make any order or other decision that it has power to make otherwise than under subsection (1).
It is clearly a broad and inclusively defined power. The prerequisite steps to invoking it in s 200 CPA appear to have been complied with by the parties. Reliance on the s 199 procedure is a little unusual, with that procedure more commonly relied upon by parties seeking preliminary rulings concerning the necessary elements of certain offences charged, questions of severance and evidentiary rulings.[10] However, in DPP (Cth) v JM,[11] a majority of the Court of Appeal relevantly observed:[12]
[T]he overriding objective of the Criminal Procedure Act is to ensure, so far as practicable, that all issues are identified at the earliest possible stage and resolved […]
[W]hile we agree that the Act should be construed, as far as possible, in favour of the early determination of questions of law and otherwise the facilitation of expeditious and economic determination of criminal proceedings, there is no reason to strain the language of the Act in order to achieve that objective. Section 199(1) of the Criminal Procedure Act gives adequate power to a judge to make such early determinations […]
[10]See, eg, DPP v Gebregiorgis (2023) 71 VR 361, 365 [19] (Emerton P, Priest and Kaye JJA); DPP v Hansen (2020) 287 A Crim R 117, [12] (Maxwell P and T Forrest JA); R v Mohamed (Ruling No 1) [2015] VSC 290, [4] (Lasry J).
[11](2012) 37 VR 1.
[12]Ibid 67 [295]–[296] (Nettle and Hansen JJA). The Court of Appeal’s decision was overturned by the High Court (refer (2013) 250 CLR 135), although it appears that the observations extracted above were not impugned: see R v Karabegovic (No 1) (2013) 241 A Crim R 298, 302 [10], [11] (Dixon J).
Certain observations in the Explanatory Memorandum to the Criminal Procedure Bill 2008 are also relevant:
Clause 199 confirms that the court has the power to decide a wide range of issues and make orders before trial […]
This clause uses the phrase ‘at any time before trial’ to describe its operation. […] The difference reflects the intention that this clause enables pre-trial decision-making rather than limiting decision-making powers during trial.
[…]
This provision is to ensure that, for example, a change of venue application […] are able to be decided before trial.
In my view, any dispute concerning the place of trial as presently agitated by the parties would evidently be an ‘issue with respect to the trial’ arising ‘before trial’ for the purposes of s 199. The temporal question (‘before trial’) is clearly satisfied here in light of s 210(1) of the CPA.[13]
[13]See, eg, DPP (Cth) v JM (2013) 250 CLR 135, 152 [27] (French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ).
The competing arguments as to the meaning and application of s 169(1) CPA
Respondent’s arguments
The Director relies on the wording of s 169 CPA, in particular the words ‘nearest to the place where the offence is alleged to have been committed’.
Section 169 provides:
169 Place of hearing of criminal trial
(1) A criminal trial in the Supreme Court or the County Court is to be held in the court sitting at the place that is nearest to the place where the offence is alleged to have been committed, unless an order is made under section 192.
(2) A criminal trial is not invalid only because it was conducted at a place other than the place referred to in subsection (1).
Ms Judd submitted that firstly, it is for the Crown to make the allegation as to where the offence is committed, and secondly, the word ‘committed’ must be interpreted by reference to its historical context.
Ms Judd referred to Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue[14] (‘Alcan’) and reminded the Court that the task of statutory construction must begin with a consideration of the text itself, with the language of the provision being the surest guide to legislative intention. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. Further, it was important not to ignore any part of the text in interpreting its meaning, and the Court should pay heed to the word ‘alleged’, which precedes the phrase ‘to have been committed’: the wording does not say ‘where the alleged offence was committed’, it says ‘where the offence is alleged to have been committed’.
[14](2009) 239 CLR 27, 46–7 [47], [48] (Hayne, Heydon, Crennan and Kiefel JJ).
Ms Judd also argued that the broader context surrounding s 169 is important, since s 169 falls within Part 5.2 CPA – ‘Indictment and place of trial’, dealing with what flows from what is alleged in the indictment; whereas s 192, permitting the Court to order a change of venue, is contained within Part 5.5 CPA - ‘Pre-trial procedure’, under Division 3 – ‘Orders’ and is titled ‘Power to change place of trial’.
Further, if the allegation as to the location of the offence as framed in the indictment is used to determine where the offence is alleged to have been committed, this results in certainty, making it easier for Registry to determine the proper venue for trial.
As to the meaning to be ascribed to the word ‘committed’, Ms Judd argued that the word should be interpreted by reference to its historical context, and the meaning judges have ascribed to the word in the past. In making this submission, Ms Judd seemed to eschew the Defence’s reliance on dictionary definitions,[15] citing The King v Rohan (‘Rohan’)[16] and Attorney-General for NSW v Brewery Employees Union of NSW (‘Brewery Employees Union’).[17]
[15]Discussed at 3 [10], [11] of the Defence’s submissions.
[16][2024] HCA 3.
[17](1908) 6 CLR 469. I will discuss these two authorities later in these reasons.
Further to this argument, Ms Judd referred to s 9 of the Crimes Act1958 (‘Crimes Act’) which states:
9Provision for trial for murder or manslaughter in Victoria where death or cause of death only happens in Victoria
Where any person being criminally stricken poisoned or otherwise hurt upon the sea or at any place out of Victoria dies of such stroke poisoning or hurt in Victoria, or being criminally stricken poisoned or otherwise hurt at any place in Victoria dies of such stroke poisoning or hurt upon the sea or at any place out of Victoria, every offence committed in respect of any such case, whether the same amounts to the offence of murder or of manslaughter or of child homicide or of homicide by firearm or of being accessory to murder or manslaughter or child homicide or homicide by firearm, may be dealt with inquired of tried determined and punished in Victoria in the same manner in all respects as if such offence had been wholly committed in Victoria.
Ms Judd argued that s 9 would not be needed if the word ‘committed’ in s 169 CPA did not have the meaning that she submits should be ascribed to it.
Applicant’s arguments
Mr Mandy clarified that the Defence took no issue with the proposed form of indictment alleging that the murders occurred in Heidelberg on the dates of death occurring. The Defence did, however, take issue with the venue wording (‘Court sitting at’) which would be inserted at the top of that indictment, submitting that that choice is the Director’s, not Registry’s.
Mr Mandy referred to s 160 CPA regarding the discretion as to whether an indictment may be filed in the Supreme Court or the County Court, and the mandatory criteria governing the exercise of that discretion in s 160(2), noting that no such discretion exists in relation to s 169.
Contrary to the Crown’s submissions, Mr Mandy argued that the reason that parliament inserted the word ‘alleged’ into s 169 is merely to give effect to the presumption of innocence.[18] In effect, since the indictment lays charges, reference to the commission of an offence in an indictment can only be a reference to the offence allegedly having been committed. If the word ‘alleged’ were removed from s 169, it would infringe the presumption of innocence.
[18]TS 20.
The Defence further submitted that the consideration of where the offence is alleged to have been committed is ‘a simple objective one’ based on the facts grounding the charge. Section 169 should be interpreted as giving effect to the longstanding practice of ensuring local or community justice.
The Defence submitted that while the Crown had supplied a number of cases pertaining to the terminatory theory, all those cases dealt with jurisdiction,[19] where the events in question straddled jurisdictional boundaries and different laws applied in each jurisdiction. However, to the extent those cases could be useful analogously in this proceeding, Mr Mandy submitted that they all clarified that the element of intention was important.[20] Referring to the case of Ward v The Queen,[21] Mr Mandy pointed out that Mr Ward intended to shoot Mr Reed across the boundary of Victoria and New South Wales while Mr Reed was in New South Wales, so the intended harm was going to take effect there. A similar situation as to location of the intended harm arose on the facts of McNeilly v The Queen[22] and R v Kron.[23]
[19]TS 21. I should interpolate that Ms Judd did not necessarily contest that characterisation, whilst maintaining that the law determined in those cases was applicable to this matter and in particular to the word ‘committed’ and where such offence be committed: TS 2.
[20]Citing, inter alia, Lord Keith of Kinkel’s statement in DPP v Stonehouse [1978] AC 55, 93 where it was said:
I would myself prefer to rest the matter […] on the principle that an offence is committed if the effects of the act intentionally operate or exist within the jurisdiction. This would be the situation if a bomb or a letter sent from abroad were found anywhere within the jurisdiction. Its presence at that spot would be an intended effect of the act of despatching it.
[21](1980) 142 CLR 308.
[22](1981) 4 A Crim R 46.
[23](1995) 78 A Crim R 474. Mr Mandy also made reference to R v Lawson (1996) 86 A Crim R 111; Case (a pseudonym) v The King [2023] VSCA 12; and The Queen v Hansford (1974) 8 SASR 164.
Whilst not disputing the potential application of the terminatory theory to the cases referred to by the Director, Mr Mandy distinguished the current case from those that straddle jurisdictional boundaries. He submitted that in the present case the factual background is straightforward. All of the physical acts the Crown rely on to allege that EP committed the three offences of murder had been completed by the time the fateful Leongatha lunch was concluded on 29 July 2023. Therefore, the offences were in reality allegedly committed in Leongatha and the proper venue is the Latrobe Valley courthouse.
Mr Mandy countered the Director’s argument that the framing of the alleged location of the offence on the indictment dictates the proper venue for trial, arguing that applying such an interpretation to s 169 would give rise to potential absurdity. For example, if an alleged offence causing death happened at one end of Victoria but due to available medical treatment, death ultimately occurred at the other end of Victoria, all witnesses, victims and persons affected would have to travel to the other end of Victoria for the trial. On the contrary, the meaning to be applied to s 169 CPA should give rise to a sensible interpretation in terms of locus.
Mr Mandy also noted that within the cases relied on by the Director was to be found the phrase, ‘all crime is local’, which was indicative of the historical approach giving rise to the provisions of the CPA governing venue.
Mr Mandy further submitted that the suggested certainty from only relying on the wording in the indictment would not exist if, for example, a fatal collision happened and the alleged victims died in differing locations in Victoria where specialist medical care was provided. Parliament could not have intended the hospital location to govern place of trial. The more sensible interpretation would relate the alleged offending to the place where the collision occurred.
Mr Mandy concluded by arguing that the Court should first rule on proper venue, because it would be based on the outcome of that ruling that the parties would consider s 192 CPA and whether they would seek to persuade the Court to change the trial venue to a different location, noting that the burden would fall on the party seeking to do so. Mr Mandy submitted that some of the principles that arise from change of venue cases assist in considering the interpretation of s 169 (such as cases emphasising the need to give primacy to local issues being determined locally) but the Court should not embark on a consideration of appropriate venue under s 192 until a determination is made about the meaning to be applied to s 169.
Respondent’s reply
In the course of oral argument, I had raised with counsel the need to understand the history of s 169 CPA, mentioning Cummins J’s reference in DPP v Towle (Ruling No 1) (‘Towle’)[24] to common law jurisprudence about trial venue and the now-repealed s 359 of the Crimes Act.
[24][2007] VSC 551 (Cummins J), dealing with venue for trial.
In brief reply, partly responding to my earlier query, Ms Judd stated that the Crown understands that there was no previous provision equivalent to s 169 CPA, although s 192, which deals with change of venue, could be related to the now-repealed s 359 of the Crimes Act referred to by his Honour in Towle. Further, Ms Judd indicated that there were essentially no extraneous materials that could assist in explaining the background to s 169, the Explanatory Memorandum providing no real guidance.
In relation to the Defence’s submissions concerning intention, Ms Judd pointed to the case of Evans & Gardiner (No 2)[25] as an example of a case having nothing to do with jurisdiction. She submitted that the location of the intended harm was not central to the decisions about the location of the commission of the crime in each case. Ms Judd also relied on the more recent case of R v Gould[26] in support of the proposition that alleging a crime has been committed at the place of death corresponds with alleging that the crime occurred on the date of death.
[25][1976] VR 523.
[26](2007) 17 VR 393.
Ms Judd further submitted that the word ‘committed’ has been recognised as having a particular meaning in case law (whether concerning the ‘jurisdictional’ arguments or, for example, Evans & Gardiner); and that whilst that did not mean there would always be a logical conclusion as to what flows, it is a clear and certain outcome for everyone. The issues to do with policy considerations might be better determined pursuant to any s 192 application. Further, the Crown indicated that, should this ruling go against it, the Crown would be unlikely to make an application for change of venue pursuant to s 192.
Supplementary submissions concerning the CPA legislative guide
Following the hearing, on 22 July, my chambers wrote to the parties, drawing their attention to the Criminal Procedure Act 2009 – Legislative Guide (‘Guide’) previously published by the Department of Justice and Community Safety, and indicating that the Court intended to have regard to the Guide in ruling on the trial venue question subject to receipt of any submissions from the parties.[27]
[27]The Guide relevantly states (p. 15): ‘This legislative guide is intended to assist those who will use and work with the Act [...] This legislative guide was developed as a result of funding provided by the Legal Services Board.’
The next day, the Crown filed brief further submissions, which in summary asserted:[28]
[28]Further Prosecution Submissions on Trial Venue dated 23 July 2024.
(a) The Guide reinforces the Crown’s primary argument that s 169 CPA does not determine where an offence is properly alleged to have been committed; it simply prescribes where, as a consequence of the alleged location of the offence; the trial will be held.
(b) The location of an alleged offence, or where an offence is properly alleged to have been committed, is governed by common law principles, specifically the adoption at common law of the terminatory theory.
(c) The terminatory theory, not the initiatory theory,[29] is the law in Australia. The accused has volunteered no authority supporting the proposition that murder is committed where the actus reus took place, or that commission of a murder is a continuous act. The contrary is true; murder is committed at the time and place that death occurs.
(d) To ‘commit’ an offence is to complete the offence. The Guide provides no assistance in interpreting the legal definition of ‘commit’. However, it was the legal definition of ‘commit’ that led to the correct outcome in the ‘jurisdictional’ cases, and that legal definition also leads to the correct outcome in this case.
[29]Refer again to the Glanville Williams article footnoted earlier above.
The Defence then filed further brief submissions in reply the following day, which in summary asserted:[30]
[30]Further Defence Submissions on Proper Venue for Trial dated 24 July 2024.
(a) On the Crown case, all of the acts necessary to complete all of the offences alleged[31] were committed (and intended to have been committed) closest to the Latrobe Valley courthouse.[32]
[31](With the possible exception of charge 7).
[32]Cf, eg, R v Gould (2007) 17 VR 393, 394 [3] (Coghlan J): ‘[I]n my view, since the crime of murder can only be committed if death is caused, the date of death will be the date of the offence. That is the date on which an essential element of the offence occurred and the crime could not have been committed without it.’
(b) The ‘all crime is local’ presumption is now legislatively recognised in s 169 CPA, as observed in the Guide. The Crown’s submissions have failed to grapple with that basic presumption.
(c) Regarding s 169 CPA, the Guide says nothing about the initiatory/terminatory distinction; the Crown has repeated its oral submissions about that distinction without addressing the ‘practical absurdities’ it causes in cases where the issue is proper venue rather than jurisdiction.
(d) The Guide, and all of the other authorities, say nothing about the word ‘alleged’ applying expressly and only to the Director exercising discretion over the form of the indictment, and indeed the Guide says the opposite.
(e) Regarding the definition of ‘commit’, the example raised by the accused is apposite: the Director’s argument is that if the medical treatment was only available in Sydney, the terminatory theory would apply (both for jurisdiction and proper venue) and the Victorian Director would have no jurisdiction over these offences, notwithstanding that all of the conduct occurred in Victoria.[33]
(f) These kinds of ‘irrational’ results are resolved by applying the ordinary English meaning of ‘commit’, and it is unclear how the Crown’s ‘legally correct’ definition is substantiated in the authorities.
[33]As stated to counsel during the hearing, examples of extra-jurisdictional cases do not seem apt to the case at hand (TS 25–6) and Mr Mandy’s submission seems to ignore s 9 of the Crimes Act.
Consideration
I should state at the outset that this ruling will consider s 169 CPA only. As borne out in the above summary of the Defence’s submissions, I understood the separate question of ‘appropriate venue’ (s 192 CPA) to be raised in the Director’s written submissions but largely unpursued in oral argument.
I have found it helpful to review the historical approach to determination of place of trial in Victoria. The Crown is correct that there was no direct predecessor to s 169 CPA. It appears to me that the reference in s 169 to the place where the offence is alleged to have been committed does not give rise to difficulties understanding what is meant by the phrase, but because of the range of foundational dates and locations that can contribute to the elements of a criminal offence, there is potential ambiguity attached to the phrase. Indeed, this potential ambiguity in relation to homicide offences that may comprise of elements being completed on different days or locations seems to be recognised in (inter alia) s 9 of the Crimes Act by the use of the words ‘in the same manner in all respects as if such offence had been wholly committed in Victoria.’[34] Because of this ambiguity and because of the risk that a strict reading of the wording of s 169 could give rise to absurd results, I have found it necessary to go beyond the plain wording of s 169 to aid in the interpretive task.
[34]See also, eg, Hynes v Bux (Supreme Court of Victoria, Nathan J, 13 November 1996) 9.
In the absence of any helpful explanation either in Hansard[35] or the Explanatory Memorandum,[36] I have sought to explore the historical and common law approach to the selection of proper venue.
[35]The provision does not appear to have been mentioned in the second reading speeches. However, the Statement of Compatibility for the bill simply recorded:
Several clauses impact on the right of persons involved in, or who wish to attend, criminal proceedings to move to and from or stay at the location of the proceedings. Clauses 11 and 169, for example, provide for the place of hearing and clauses 31 and 192 provide for the change of venue.
[36]The Explanatory Memorandum (p. 65) simply states regarding s 169:
Clause 169 governs the place of hearing of criminal trials in the Supreme Court or the County Court. Subclause (1) requires such trials to be held closest to the place at which the offence is alleged to have been committed, unless an order is made to change that place under clause 192. Subclause (2) provides that a proceeding is not invalid because it was conducted at a place other than the place referred to subclause (1).
And (p. 72) regarding s 192:
Clause 192 gives the court the power to order that a trial be held at another venue if it considers that a fair trial cannot otherwise be had, or it is appropriate to change the place of trial for any other reason. Clause 169 provides for the primary place of hearing for a criminal trial.
In Towle, Cummins J was faced with a consideration of whether it was appropriate to hold a trial for Mildura-based offending in Melbourne, noting that both parties wished the place of trial to be Melbourne, notwithstanding that the foundational acts involved in the alleged crimes, and the location of victims, witnesses and accused all derived from Mildura. His Honour said:[37]
The first matter for consideration is the venue of the jury trial. As I have said, the learned Magistrate, at the submission of the Director and not opposed as to venue by the accused, committed the accused for trial in Melbourne. Both the Director and the accused before me maintain that position.
Under the common law and s.359(1) Crimes Act 1958 it is the responsibility of the Court to determine, in accordance with proper principle, the venue of trial.
Proper principle provides that other than in exceptional circumstances trials should be held in the vicinity of the constituent events. That is because the local community has a legitimate and especial interest in the proceedings, should have the law administered in that community, and should not be disenfranchised. These are weighty considerations and which should not be put aside save in exceptional circumstances. Mere local publicity of a substantial kind is not enough to remove trials from their proper locale.
Further, sensitive consideration should be given by the court to the burden (geographically and emotionally) and expense upon persons connected with the proceedings of having the trial removed from its proper locale. The persons whose interests should be so considered pre-eminently comprehend the victims and their families, the accused and the accused’s family, and witnesses. The local community’s ability to attend the hearing also is of especial importance.
Applying those principles to the present case, it is plain that but for exceptional circumstances the trial should be held in Mildura.
[37]DPP v Towle (Ruling No 1) [2007] VSC 551, [3]–[7] (citations omitted) (emphasis added). I note, however, that his Honour ultimately concluded, in that case, that the trial should indeed be held in Melbourne rather than Mildura, ‘solely because, given the very large number of victims and afflicted persons, it would have been difficult in Mildura to have a representative jury with no knowledge of or connection with the case’: DPP v Towle (Ruling No 11) [2008] VSC 64, [1] (Cummins J).
Looking further into the common law background to the reason why there was a predecessor provision allied to s 192 CPA (being s 359 of the Crimes Act as referred to in Towle by Cummins J), but no similar matching provision for s 169, it seems the answer is to be traced through from the case of R v Giddings (‘Giddings’)[38] which also mentioned the earlier case of R v Patterson, Hartley and Carrighan (‘Patterson’).[39]
[38][1916] VLR 359.
[39](1867) 4 WW & A’B (L) 43.
In Giddings, the applicant sought an order that his trial take place in Horsham rather than Ballarat. A notice of intention to prefer a presentment at the Supreme Court at Ballarat had been served on the accused, but the alleged offence had been committed near Warracknabeal (which was nearer to Horsham). The question before the Court was whether the accused had shown good cause why the place of trial should be changed. Justice Cussen said:[40]
I do not suggest there would not be a fair trial at Ballarat. But, notwithstanding the abolition of local venue for criminal trials, I think that in a case like this the trial should, prima facie, take place in the locality where the offence was committed and the witnesses are. There is nothing to rebut that prima facie presumption, and therefore I think the trial should be at the place the accused suggests.
[40]R v Giddings [1916] VLR 359, 362.
Patterson was referred to in Giddings in support of the proposition that the onus is on the accused in the first place to show ‘good cause’ why the place chosen by the Crown for trial should not be adhered to. Patterson was referred to in observing that that position, as far as the law was concerned, was substantially the same as in 1867. In Patterson, the defendants sought a rule nisi calling on the Attorney-General to show cause as to why the venue in a proceeding against them for arson at Daylesford should not be changed from Melbourne to Castlemaine. Chief Justice Stawell, delivering the judgment of the Court, relevantly said:[41]
Any reasoning from analogy, based on the English practice, is inapplicable here. The Attorney-General is, in the Act from which this section has been transplanted, constituted a standing grand jury for the colony. Where, then, is he, as a grand jury, to present? Why is he to be confined to the district in which the offence is committed? It appears to us that the fair meaning of the section, as it originally stood, gave the Attorney-General power to present a bill – or, more properly in this colony, to file an information – where he pleases. Then in order to restrain and prevent any possible injustice arising under the exercise of that power this clause was inserted which enables this Court to order that the venue be changed.
[41]4 WW & A’B (L) 43, 45. See also, eg, Re Penny [1989] WASC 483, 2, discussing R v Lange (1986) 25 A Crim R 139, R v Cattell [1968] 1 NSWR 156 and Lemon v Attorney-General (1932) 50 WN (NSW) 19 (an application for leave to appeal against Nicholson J’s decision was refused in Penny v The Queen [1989] WASC 495):
All of them adopt the primary rule, which I believe derives from the common law, that a trial should proceed in the place near or close to the occurrence of the alleged offence and that the discretion of the Attorney-General to issue the indictment for trial in that place should basically not be interfered with except for what I have described as “good cause”.
The history of s 359 was traced by Nettle J in R v Iaria and Panozzo (‘Iaria & Panozzo’),[42] with his Honour drawing upon Patterson and observing:[43]
The history of the section [359] dates back to 1852 to 15 Vict No 10, to the power of the Attorney-General to present in any part of the Colony but subject to the ability of the Court to restrain injustice by directing that the trial be had in Melbourne or in any other district which the Court might think fit.[44]
[42](2004) 9 VR 425.
[43]Ibid 426 [2].
[44]Citing R v Patterson, Hartley and Carrighan (1867) 4 WW & A’B (L) 43. As an aside, it also appears that s 359 of the Crimes Act was the part-progenitor of s 167 CPA (allowing the court to order that an accused by tried in the County or Supreme courts). The CPA’s Explanatory Memorandum states (p.64):
The absence of any earlier provision appointing a place of trial and the decision to include one in the CPA is explained to some degree in the Guide, which has been previously referred to by the Court of Appeal in interpreting the CPA.[45]
[45]See, eg, CMG v The Queen (2013) 46 VR 728, [134] (Warren CJ); Stark v The Queen (2013) 45 VR 1, [36]–[37] (Maxwell P, Redlich JA and T Forrest AJA agreeing); Duca v the Queen (2020) 62 VR 214, [50] (Maxwell P and T Forrest JA).
The Guide relevantly states:[46]
[46]Page 173.
169 Place of hearing of criminal trial
Overview
This section declares the long-standing principle that a charge should presumptively be heard in a place closest to the place where the offence is alleged to have been committed.
Legislative History
There is no direct statutory predecessor to section 169(1) in relation to trial courts. It is based on a modified and simplified version of clause 1 of Schedule 2 to the Magistrates’ Court Act 1989 and the definition of ‘proper venue’ in section 3 of that Act. Section 11(1) of the Act provides an almost identical regime in the Magistrates’ Court.
Relevant Rules/Regulations/Forms
Not applicable.
I pause to note that s 3 of the Magistrates’ Court Act 1989 currently defines ‘proper venue’ to mean (inter alia) ‘the mention court that is nearest to the place where the offence is alleged to have been committed.’[47] I have cursorily reviewed the case law considering this definition (and the cognate provision in s 11 of the CPA)[48] but have not found this of great moment in answering the present question.[49] As for the parties’ respective arguments concerning the meaning of ‘committed’ – I did not find the two cases referred to me by the Crown, Rohan and Brewery Employees Union, particularly helpful in answering the point.
[47](Emphasis added). The definition has been statutorily amended numerous times since the Act was first promulgated.
[48]Section 3 of the Magistrates’ Court Act 1989 and s 11 of the CPA were referred to me in Ms Judd’s reply when considering now-repealed s 359 of the Crimes Act: refer TS 31–2.
[49]Although I found Nathan J’s consideration of the meaning of the phrase ‘nearest to’ of some note: see Hynes v Bux (Supreme Court of Victoria, Nathan J, 13 November 1996), 5.
Regarding s 169 CPA, the Guide continues:[50]
Discussion
The proposition that a criminal trial should presumptively be held closest to the place where an offence is committed is longstanding (see e.g. R v Giddings [1916] VLR 359). The policy underlying the presumption is that allegations of criminal offending should be determined within the community that the offences are said to most directly touch. This section formalises that rule. It effectively means that, while the prosecution retains a discretion as to which court (i.e. County or Supreme) the indictment will be filed in (under section 160), the trial itself must be held at the court location closest to the commission of the offence.[51] A comparable rule is found in section 80 of the Commonwealth of Australia Constitution Act 1900 in relation to federal indictments which requires that a trial be heard in the State where the offence is alleged to have been committed. Where an offence or offences are committed at a number of places, or where it is not possible to be certain where an offence was committed, it is expected that the trial will be held at the place which has the strongest geographical connection to the alleged offending for consistency with the principle underlying this section. As indicated in section 169(1), the court has the power to order a change of place of trial under section 192. Section 169(2) makes it clear that a failure to comply with the section does not render the trial invalid. This is designed to avoid any suggestion that a failure to comply is a fundamental defect in the trial rendering it a nullity.
[50]Page 173.
[51]I considered Mr Mandy’s submission that the Court contrast ss 160 and 169 CPA to be largely superfluous in resolving the current dispute, albeit I note this passage of the Guide does not seem to be in tension with that argument.
Taking into account the abovementioned explanation for the introduction of s 169, it appears that s 169 should be interpreted in such a way that gives effect to the purpose behind the provision, rather than applying the literal meaning contended for by Ms Judd. I agree with the Defence contention that to do otherwise could give rise to absurd consequences, dictating the holding of a trial in a place of specialised medical treatment, rather than in a location that has the nexus to the constituent events.
Whilst not disputing the Director’s entitlement to frame the offence date and location based on date and place of death, I do not regard this fact as leading to the interpretation that that is where the offence is alleged to have been committed. In fact, as a matter of common sense, as argued by Mr Mandy, the Crown will submit to the jury that by the time EP had administered the luncheon food to the three deceased, she had, on their case, committed the actus reus for murder. The offending will be alleged in the Crown’s opening statements to have been committed in Leongatha notwithstanding that the offence was allegedly completed by the death of the three alleged victims in Heidelberg. The jury will likely be told that the indictment has been framed that way as a matter of form.
In interpreting s 169 in such a way as to avoid absurd outcomes and give effect to the purpose of the provision, I am also fortified by longstanding authority as to the importance of crimes being tried in the area local to where the events in question took place. Towle is just one such example. Justice Nettle also referred to this principle in Iaria & Panozzo.[52] His Honour conducted an extensive review of the earlier authorities, and whilst noting that they ‘are not to be taken as rigid rules or precise formulae’, proceeded to say:[53]
I take the law now to be as I have endeavoured to set it out earlier in this ruling and, as it seems to me, it is precisely encapsulated in the formulation of Pincus JA in Yanner that:
“…the proper rule to be applied is that each case in which an application is made for a change of venue falls to be considered on its own merits and not with any preconceptions, save that a trial should ordinarily proceed in the district in which the offence charged is alleged to have been committed ‘removal being warranted where sufficient cause is shown’.”
[52](2004) 9 VR 425.
[53]Ibid 428 [10].
Section 80 of the Commonwealth of Australia Constitution Act 1900 (Cth) is in similar terms to s 169 and states:
80. Trial by jury
The trial on indictment of any offence against any law of the
Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not
committed within any State the trial shall be held at such place or places as the Parliament prescribes.
The New South Wales Court of Criminal Appeal discussed s 80 in R v Wilkie[54] as follows:
Section 80 manifests the significance that has always attached to ensuring the venue of a criminal trial is the community where the crime was committed. In part this reflects Lord Halsbury’s aphorism that crime is local and jurisdiction belongs to the area where the crime was committed. (Macleod v Attorney-General (NSW) [1891] AC 455 at 458.) Gleeson CJ has described this assertion as “dogmatic”. (See Lipohar v The Queen (1999) 200 CLR 485 at 497 [15] and see 521 [91].) I have described it as “glib”. (R v Porter (2004) 61 NSWLR 384 at 389 [19].)
However, as Holmes JA said in R v Cattell (1967) 86 WN (Pt 1) (NSW) 391 at 395–396: “Though the principle has always been that an indictment for crime must be tried by a jury of the place in which it is alleged that the offence has been committed and before a court having jurisdiction therein, this rule does not rest on the principle that criminal jurisdiction is territorial but upon the history of the development of trial in pais”.
Trial in pais (in the country) was sometimes expressed as trial per pais (by the country), that is, by jury. The origins of the local link lie in the origins of the grand jury which acted on its own local knowledge to find an indictment and of the petty jury of trial which would also act on its own knowledge. (See Sir James Fitzjames Stephen, A History of the Criminal Law of England, vol 1 (1883) London, MacMillan and Co at 253–254, 258–260, 276–278.)
Thereafter, the system of trial by jury developed with an emphasis on the significance of local people serving on the jury and an acknowledgement of the public interest in ensuring that the community whose peace has been disturbed can directly observe justice being done. (For a recent statement of the principles see Johnson v The Queen [2002] WASCA 78 at [9].)
[54](2005) 64 NSWLR 125, 128 (Spigelman CJ, Ipp JA and Adams J agreeing).
Late in the hearing, I raised the question of the Project Blue Sky Inc v Australian Broadcasting Authority (‘Project Blue Sky’)[55] approach to interpreting s 169 as against the Alcan approach. In her reply, Ms Judd submitted that Project Blue Sky confirmed what was said in Alcan about needing to give effect to the words in the legislation, and (citing [71] of the plurality judgment in Project Blue Sky) she said that this supports the principle that it is for the Crown to make the allegation, and for ‘proper venue’ to then flow from that.[56]
[55](1998) 194 CLR 355.
[56]TS 36.
At [71] of Project Blue Sky, the plurality (McHugh, Gummow, Kirby and Hayne JJ) said:
Furthermore, a court construing a statutory provision must strive to give meaning to every word in the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.
More recently, in a statement which has come to be quoted as the current approach to interpreting legislation,[57] the plurality in SZTAL v Minister for Immigration and Border Protection[58] (citing both Alcan and Project Blue Sky) said:[59]
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
[57]DC Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 10th ed, 2024) 40 [2.1] (online at 24 July 2024).
[58](2017) 262 CLR 362.
[59]Ibid 368 [14] (Kiefel CJ, Nettle and Gordon JJ) (citations omitted). See also Gageler J at [38] (citation omitted):
The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from ‘a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural’, in which case the choice ‘turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies’.
Whilst accepting that Project Blue Sky focuses attention on the precise wording of the provision to be construed (as elaborated by the plurality at [71]), the fact that s 169 was included in the CPA without having any direct statutory predecessor appears significant in approaching the task of interpreting the meaning to be attributed to the words of the provision. Whilst Ms Judd placed much focus on what she submitted was the approach of the courts to the meaning of the word ‘committed’ and to a strict interpretation of the phrase ‘alleged to have been committed’, it is relevant to consider what the provision aims to do, within the context of what was done historically regarding place of trial, and whether the intent behind the provision was to change the previous practice. Nothing in the extraneous materials to which I was referred or which I have independently reviewed suggests that was the intention behind the drafting of s 169. To the contrary, the only document that the Court has been able to uncover that offers any explanation for the inclusion of s 169 is the Guide, which does not appear to support the Director’s position.
The Court of Appeal has previously commented on this, relevantly saying:[60]
It is clear that the ‘context’ which a court is required to consider as part of the ‘modern approach to statutory interpretation’ encompasses the existing state of the law and the mischief which, by legitimate means, one may discern the statute was intended to remedy. It is therefore not unusual for courts to examine a prior statutory provision or legislative scheme dealing with the same subject matter to enable them to construe a current statute. The High Court and this Court have done so on previous occasions. It has been observed that the history of a legislative scheme may assist in ascertaining the legislative intent. It has also been observed that, by comparing succeeding legislative schemes that deal with a single subject, the function of particular provisions within each scheme is illuminated. For example, the introduction of particular provisions may be seen to have particular significance in the light of what has been retained and what has been removed.
[60]Commissioner of State Revenue v EHL Burgess Properties Pty Ltd (2015) 209 LGERA 314, 328–9 [51] (Tate and Kyrou JJA and Robson AJA) (citations omitted). See also the Court’s comments regarding ‘clear expression of intention’ at 330 [58] (citing, inter alia, Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252). See further, eg, DC Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 10th ed, 2024) 125–7 (online at 26 July 2024).
In DPP v Leys,[61] the Court of Appeal also said, regarding the necessity to avoid ‘absurd’ consequences in construing legislation:[62]
The common law has long sought to avoid interpreting legislation in a manner that leads to a result that is manifestly absurd, is unreasonable, creates an anomaly or otherwise produces an irrational or illogical result. In certain circumstances, departure from the literal meaning is justified and ‘the court is entitled to attribute to the provision the meaning which it was obviously intended to have.’
The question which arises here is whether judicial intervention could be justified to depart from the literal meaning of cl 5 by adding or implying additional words where the consideration of the legislative history of cl 5, its context and the clear intent of the Parliament leads to the conclusion that applying a literal meaning would stultify that intent. That a court may sometimes be justified in abandoning the literal meaning and adding or implying words to avoid an unintended result can no longer be doubted.
[61](2012) 44 VR 1.
[62]Ibid 17 [48] (Redlich and Tate JJA and T Forrest AJA) (citations omitted). See also, generally, the discussion in DC Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 10th ed, 2024) ch 2 (online at 24 July 2024).
In Hynes v Bux,[63] Nathan J considered an appeal raising five questions of law concerning a summons made returnable at the Magistrates’ Court at Melbourne, although the offence allegedly occurred at Kensington. His Honour relevantly held:[64]
Immediately it is appreciated there is one single magistrates’ court for the whole of Victoria, the meaning of the [Magistrates’ Court] Act and Schedule becomes pellucid. Pursuant to s.26(1) all criminal proceedings in the court must be commenced by filing a charge with a registrar. The identity and location of that registrar is then narrowed to the appropriate registrar of the proper venue. That venue is not closely defined, the charging officer is given a choice which subsequently may be challenged by the person charged. Section 3 recites the proper venue as either the location nearest which the offence occurred or the place of residence of the defendant. Of course a person may have more than one place of residence just as easily as a single offence may take place at more than one location. The Act has done nothing more than come to terms with the exigencies of the criminal law, which encompasses variable factors, both temporal and geographical. If it did not do so it would be unworkable. Hedigan J had cause to examine the notion of the “appropriate registrar” in circumstances where the registrar was itinerant, the same person being the registrar at Bairnsdale and also Orbost. He too, looked at the necessity of making the administration of the criminal law actually work, and with respect, I too think that approach must be adopted […]
In order to meet the convenience of the parties and the court itself the Schedule enables both to have the proceedings transferred; not to another court, but as the words say “to another venue of the Court”. The provision is facultative, and not to be rendered otiose. […] The court is invested with jurisdiction itself to transfer cases if the convenience of the parties is better served.
[…]
Returning to s.26 it assumes the “appropriate registrar” and hence the “proper venue” will be apparent. In most cases for the reasons I have already given this will be so, however, there will be many cases which become objects of dispute. The scheme of the Act is to allow those disputes to be adjudicated, and an appropriate venue settled upon.
[63](Supreme Court of Victoria, Nathan J, 13 November 1996).
[64]Ibid 8–10 (underlined emphasis in original); see also, eg, the Guide at p.173.
In my view, analogous reasoning applies in this case.
While the provision’s antecedents are not easy to identify, as I have endeavoured to set out above, s 169 CPA appears to have been drafted to give statutory effect to the longstanding rule of practice that a trial will presumptively be held in the local community of the constituent events. The construction of s 169 in a manner consistent with the preceding common law position about place of trial seems to accord with the purposes of the CPA to, inter alia, ‘clarify, simplify and consolidate’ laws relating to criminal procedure in the Magistrates’, County and Supreme Courts of Victoria.[65]
[65]CPA, s 1(a); see also, eg, CMG v The Queen (2013) 46 VR 728, 760 [137] (Warren CJ).
Conclusion
In my view, the Director’s reliance on the terminatory theory for the framing of the murder charges is not determinative of the question as to where those offences are alleged to have been committed for the purposes of s 169 of the CPA. Section 169 and the meaning of it involves an exercise in statutory interpretation, and for the reasons I have set out above, that exercise leads, in my view, to the Latrobe Valley courthouse being the court ‘sitting at the place that is nearest to the place where the offence is alleged to have been committed’.
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Clause 167 allows the Supreme Court to order that an accused be tried in the County Court or the Supreme Court regardless of where the indictment is filed.
This clause is based on sections 359 and 388 of the Crimes Act 1958 but does not re-enact the requirement to give notice or the entitlement of parties to be present and make submissions.
For consistency throughout the Bill all such procedural references have been removed and will be resolved on ordinary principles of procedural fairness.
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