Regina v Brewer

[2000] NSWCCA 488

CITATION:	Regina v Brewer [2000] NSWCCA 488 revised - 23/11/2000
FILE NUMBER(S):	CCA 60719/00
HEARING DATE(S):	20 November 2000
JUDGMENT DATE:	20 November 2000
PARTIES :	Regina Frederick Keith Brewer
JUDGMENT OF:	Sully J at 1; Whealy J at 29; Howie J at 30

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70032/99
LOWER COURT JUDICIAL OFFICER :	Bell J

COUNSEL :	L. P. Gray - Crown D. N. Stewart - Appellant
SOLICITORS:	Director of Public Prosecutions - Crown Ross Hill & Associates - Appellant
LEGISLATION CITED:	Criminal Appeal Act 1912
CASES CITED:	House v The King (1936) 55 CLR 499 R v Dorrington (1969) 1 NSWLR 381 Glennon (1992) 173 CLR 592
DECISION:	Leave to appeal refused

IN THE COURT OF
CRIMINAL APPEAL

60719/00

SULLY J
WHEALY J
HOWIE J

20 November 2000

REGINA v Frederick Keith BREWER

JUDGMENT

1 SULLY J: This is an application brought to the Court pursuant to s 5F of the Criminal Appeal Act 1912 by Mr Frederick Keith Brewer ("the applicant").

2   The relevant background facts are as follows: in January 1999 a man named Glen Reay was stabbed to death at a place called Kamarah, a small town located not far from Griffith. The killing, when it came to light, excited some local media comment. In due course, four men, of whom Mr Brewer is one, were arrested and charged with the murder of Mr Reay.

3 All four were subsequently committed for trial on that charge. The committal proceedings, too, attracted a deal of local media interest and comment. 4 Following upon the committal for trial of the four accused persons, one of them pleaded guilty to the charge of murder, and is at present awaiting sentence. 5 Mr Brewer was granted, in circumstances and for reasons which are not at present material, a separate trial. The other two of the four men originally charged pleaded not guilty; were put, accordingly, upon their trial before Bell J of this Court and a jury; and were found guilty as charged upon the verdicts of the jury. That trial, also, attracted a great deal of local media interest and comment. 6 Mr Brewer's trial is set to commence on Monday next before her Honour Bell J and a jury at Griffith. On 24 October last Mr Brewer applied to her Honour to change the venue of the trial from Griffith to Sydney. In a judgment delivered on 27 October last her Honour refused that application. It is that refusal that is the subject of the present application pursuant to s 5F. 7 Four particular grounds have been notified and argued in support of the application for leave. They are as follows:

“1. Her Honour erred in allowing an irrelevant or extraneous matter to guide or affect the exercise of her discretion in that she took into consideration the possibility that to direct a change of venue for the reason of the appellant being kept at police cells at Griffith alone might produce the result that criminal trials were no longer held at Griffith.

2. Her Honour erred in the manner in which the observations of the High Court in Glennon 1992 173 CLR 592 were applied to the circumstances of this case.

3. Her Honour erred in that the result is so unreasonable or so plainly unjust that her Honour must have failed to properly exercise that discretion in relation to the first ground of the application for a change of venue.

4. Her Honour erred in that the result is so unreasonable or plainly unjust that her Honour must have failed to properly exercise her discretion in regard to the second ground of the application."

8 Before proceeding to consider in any particular way those grounds it is, I think, expedient to set clearly and firmly in place some more general relevant propositions. 9 The first thing to be borne in mind in connection with the present application is that the decision of Bell J to refuse the application for a change of venue entailed the exercise by her Honour of a judicial discretion reposing in her. It is trite that an appellate Court will not interfere lightly with such an exercise of judicial discretion. 10 The principles according to which an appellate Court is to proceed in such a case are well established; and are normally canvassed in terms of a passage appearing at pages 504 and 505 in the joint judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499. Those principles are well known and it is not necessary to restate them at length. 11 The second principle to be kept firmly in view is that a change of venue, although it will be granted when the interests of justice are seen properly to require that course, will not be granted in the absence of the making out of a strong positive case for the grant of such relief. If authority for that proposition is required, it will be found in the decision of the Court of Appeal in R v Dorrington (1969) 1NSWLR 381. 12 The third general proposition to be kept steadily in mind in connection with the present application derives from the scheme of s 5F itself. The section distinguishes clearly between the standing of the Crown or other proper prosecuting authority to appeal against an interlocutory decision and the standing of an accused person to challenge such an interlocutory decision.
13   The Crown or other prosecuting authority may appeal as of right against such an interlocutory decision. The accused person may challenge the interlocutory decision in, and only in, either of two stipulated situations: one is where the primary Judge grants a certificate that the particular matter is one which ought to be reviewed on appeal by this Court; the other is where, there being no such certificate, the Court itself is persuaded to grant leave to appeal. 14   In the present case Bell J did not grant a certificate of the kind to which I have referred, so that it becomes necessary for Mr Brewer to establish at the threshold a case for the grant of leave to appeal at all. 15   The first ground advanced in support of the present application for leave to appeal has to do with some comments made by her Honour at paragraph 14 of her Honour's judgment. What her Honour actually said at paragraph 14 is as follows:

"14. It seems to me that on occasions, consideration of the physical rigours of accommodation available to persons in custody might make it expedient for a judge to order a change of venue. Equally I am mindful that at country courts it will commonly be the case that persons are held in police cells during trials. To direct a change of venue for this reason alone might produce the result that criminal trials were no longer conducted at Griffith."

16 It is contended that her Honour's glancing reference in that paragraph to the prospect that criminal trials might no longer be conducted at such a place as Griffith in the circumstances to which her Honour was there referring, indicates that her Honour took into consideration in the requisite legal sense an irrelevant or extraneous matter, the effect being to taint the exercise of her Honour's discretion in the way discussed in the relevant portions of the decision in House (supra). 17 I do not think that that submission reflects a fair reading of what her Honour actually said. If one reads together the contents of paragraphs 12, 13, 14 and 15 of her Honour's judgment, it seems to me that what her Honour was attempting to do was to identify, and to bring into a sensible overall balance, various considerations touching upon the central question which she had to decide: that is to say, the question whether Mr Brewer, if brought to trial in Griffith, can be given, as far as present circumstances may be judged, a fair and unprejudiced trial. 18 All her Honour was saying, as I read her Honour's published remarks, was that while it might be the case that the physical consequences to an accused person of holding him or her during custody in a police cell might on some occasions warrant a change of venue, and would certainly be relevant to the question whether the venue should be changed, there were countervailing considerations no less legitimate, and requiring to be brought into a practical and sensible balance. One of those circumstances was the consideration that at country courts it will commonly be the case that persons are held in police cells during trials. 19 I do not see that there is anything illogical or otherwise untoward in her Honour’s proceeding thereupon to the conclusion that it could not be correct to direct a change of venue for the reason alone that the proposed country venue would entail keeping the accused in custody in a police cell during the course of his or her trial. I do not think that the first ground has been made good. 20 The second ground directs attention to something said by her Honour in another portion of her Honour's judgment, where her Honour made glancing reference to the decision of the High Court of Australia in Glennon (1992) 173 CLR 592. 21 So far as I can see, the only use that her Honour made of that decision was to draw from it what her Honour described as a commendation of the position "that jurors are to be expected to act upon the directions given to them by trial judges". 22 It seems to me that that is in fact one of the principles for which the decision in Glennon stands as authority. I cannot for myself see that her Honour erred in any way in saying so; and in taking into account, as part of the balancing exercise which she plainly carried out, the simple proposition, buttressed by ample authority in addition to Glennon, that the whole, orderly disposition of criminal justice according to law requires it to be assumed, absent compelling evidence to the contrary in a particular case, that jurors will do, and have done, what their oath requires of them: that is to say, to administer justice impartially according to the facts as found by them, and according to the law as stated for them in directions from the presiding Judge. 23 In my opinion the second of the four notified grounds has not been made good. 24 The third and fourth grounds, although advanced, articulated and argued separately, can fairly be dealt with, in my opinion, together. They entail the proposition, in substance, that on a fair view of the material before her Honour it simply was not reasonably open to her Honour to come to a conclusion that the application for a change of venue ought to be refused. 25 There is no doubt, as it seems to me, that the matters that were put to her Honour as to pre-trial publicity, and the matters that were put to her on the question of the proposed custody during trial of the present applicant, were matters of substance that required a serious and discerning consideration by her Honour. It is not suggested, as I followed the course of argument, that her Honour did not give serious and discerning consideration to the matters that were placed before her.
26   What is argued, rather, is that the exercise of her Honour's discretion miscarried in that no serious and discriminating assessment of the matters put before her Honour could fairly have resulted in a decision that the venue for trial should not be changed. 27   I would, myself, not accede to that submission. It is not to the point to consider whether the Judges of this or, indeed, of any other, Court had they been seized at first instance of the application for a change of venue might have taken a view of it similar to, the same as, or different from, the view taken by her Honour. The question is whether it has been demonstrated, the onus so to demonstrate being clearly and heavily upon the applicant, that no reasonable view of the material before her Honour could have justified a refusal of the application for a change of venue. 28   I think it is sufficient for my present purposes to say that I have not been persuaded that such a case has been made out. I would refuse the application for leave to appeal; and, in terms of 5F, I would affirm the decision which is the subject of the application. I propose orders accordingly.
29   WHEALY J: I agree. 30   HOWIE J: I agree. This was an exercise of discretion by a trial judge who was in a particularly advantageous position to determine whether the application should succeed due to her prior involvement with the earlier proceedings relating to the co-accused. 31   I agree with the presiding judge there was no error shown in the exercise of that discretion and, therefore, leave to appeal should be refused.

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