Yanner v The Queen

[1999] HCATrans 201

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B13 of 1998

B e t w e e n -

MURRUNDOO BULANYI MUNGABAYI YANNER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 24 JUNE 1999, AT 10.56 AM

Copyright in the High Court of Australia

MR A. VASTA, QC:   May it please the Court, I appear with my learned friend, MR P.J. ALCORN, for the applicant.  (instructed by Legal Aid Office, (Queensland))

MR D.L. MEREDITH:   May it please the Court, I appear with my learned friend, MR C.W. HEATON, for the respondent.  (instructed by the Director of Public Prosecutions (Queensland))

GLEESON CJ:   Yes, Mr Vasta.

MR VASTA:   Your Honour, this application which was made at the court at first instance for a change of venue was found by the Court of Appeal to have been one of substance, and we start off on that premise.            The Court of Appeal held that the District Court, in refusing the application, applied the wrong test.

GLEESON CJ:   But what the court had to decide was whether there was a miscarriage of justice as a result of the refusal of the application.

MR VASTA:   Our submission is the Court of Appeal found what was tantamount to finding that the discretion miscarried, but the discretion related to a matter as important as the obtaining of a fair trial.  We find it, in our respectful submission, a difficult to say that in those circumstances there was no fair trial denied to the applicant, because he says that a fair trial was impossible to be had in Mt Isa  The court found that had the judge exercised his discretion in favour of the granting of a change of venue, then he would not have erred in principle.  That is clear from Mr Justice Muir’s judgment, with whom Mr Justice de Jersey, as he then was, agreed.

Our submission is that it really goes to the very heart of this question as to whether a miscarriage of justice has occurred, because if there is some error in relation to the procedure, that one could conclude that as a result of that error, a fair trial is not had, it is, in our submission, impossible to say that there has been no miscarriage of justice. 

We say this, that when one has regard to the very favourable directions that were made by the learned trial judge during the course of his observations of the facts, which appear at pages 12 and 13, and the request for redirection by the Crown in saying that his Honour may have directed the jury far too favourably in favour of the applicant, and within 18 minutes the jury come back and convict the applicant, we say that one can, perhaps, draw the inference that a Mt Isa jury, notwithstanding all of the directions that are given to a jury to look at this matter impartially, that notwithstanding those directions that it would be impossible to have a fair trial for this applicant in Mt Isa.

We say that the error of the Court of Appeal was in setting out some relevant criteria which they say should exercise the mind of a judge who is hearing an application for a change of venue.  I concede at once that they do not say that it is an exhaustive list, but in so far as they set out that relevant criteria, we say they err.  They say that one of the considerations in this case was as to whether the offence was high on the scale of seriousness.  We would submit, with respect, that that is quite an irrelevant consideration.  This was an indictable offence.  It was just as important for this applicant to be granted a fair trial, whether this was right, whether it was unlawful assembly, whether it was the unlawful use of the motor vehicle, or whether it was murder, that is, in our respectful submission, a wrong criteria for a court to take into account in deciding this question as to whether there is a proper application for the change of venue.

Practical considerations of expense and delay:  the fact that the matter was mentioned on six occasions prior to the trial, and the application for a change of venue was made on the day of the trial.  They are all matters which the Court of Appeal say are relevant considerations.  We consider that the considerations of expense and delay ought not to be considerations which should take precedence over the only consideration, and that is as to whether, in all of the circumstances, the accused could have a fair trial in Mt Isa.  We say it is in that area that they erred in principle.

We also submit that the fact that Mr Justice Pincus says that the offence was unrelated to either the Century Zinc project, or to the mining; the fact that the last of the publications relied upon by the applicant was published some five or six months prior to the trial; the fact that the Century Zinc mine negotiations had been successfully concluded prior to the trial, are only matters for a court to consider as to whether there is such a prejudice in the town, in Mt Isa, as to deny to the applicant a fair trial, but they are irrelevant if the question to that determination as to whether a fair trial can be had, is in the negative.  We submit that when one has regard to Mr Justice Muir’s judgment at page 40, his Honour says:

The authorities canvassed above suggest, however, that the following considerations are likely to be relevant –

The cost, expense and inconvenience involved in a change of venue including disruption to Court schedules and the waste of court resources.

Your Honours, this is a judgment with whom, as I have already mentioned, Mr Justice de Jersey, as he then was, agreed, and this is setting out principles for inferior courts to follow when applications of a similar nature come before them:

Delay which might be occasioned by a change of venue.

Ensuring that a fair trial is had and is seen to be had.

Is set out as the third criterion when it ought to have been the sole test in the question as to whether a change of venue ought to succeed or otherwise, and the system of administration of justice which establishes court districts and so on.

We submit that those considerations which the Court of Appeal says are likely to be relevant in a matter like this are irrelevant except for that feature which is one which determines whether a fair trial is had or seen to be had in the particular district.

McHUGH J:   But Mr Vasta, does not your argument confuse two different propositions?  If the judge is satisfied that a fair trial cannot be had, that is one thing; and one would think that that was the only relevant consideration.  But it is unlikely that you would ever be confident of the evidence, confident enough concerning the evidence to make such a finding, but there is a question of the risk of an unfair trial.  In exercising the discretion, why do you not take into account such matters as delay, cost, expense, the result of the acceding to the application we we to move the trial from the locality in which the offence was committed, and the risk of a fair trial.  Are they not all factors going to the exercise of the discretion to change the venue?

MR VASTA:   Our submission is this, your Honour.  If, on the whole of the material which the applicant puts before the trial judge, he considers that there is engendered in the community such prejudice that he would consider it unlikely that an accused person could have a fair trial, all of those other matters are irrelevant.

McHUGH J:   I think that is right, speaking for myself at the moment.  I would not dispute that.  But, you did not get a favourable finding from the judge.  The highest you could put it is that there was a risk of an unfair trial.

MR VASTA:   This is the other part of our complaint, with respect, your Honour.  We did not get a favourable finding because his Honour said, “You have a very heavy onus to discharge”, and he approached it

on a wrong principle.  That is not the case.  True it is that an applicant has to put material before the court, but it is wrong to start off on the premise that, prima facie, all of these cases must be heard in the district in which the offence occurred, and almost as if you have to rebut that presumption by placing before the court material, and it is almost an evidentiary onus that you have to discharge because it is a heavy one, and only then will you get a change of venue.  If he has approached it upon a wrong principle, our submission is that his discretion has miscarried.

McHUGH J:   That was accepted, was it not.  The Court of Appeal accepted the discretion of miscarriage for various reasons, but then they had to make the determination whether or not there was a likely miscarriage of justice, and they concluded, no.

MR VASTA:   With respect, one says, “If the application was one of substance”.  This is not an exercise of discretion when one is considering admissible material which was ruled upon, and which, in fact, was inadmissible material in a court in the exercise of the proviso says, “Well, look, in view of the overwhelming nature of the rest of the evidence, one cannot see how there was a miscarriage of justice”.  The exercise of the discretion, which Mr Justice Muir, as part of the majority says, miscarried, was in respect of an application which he said had it been in favour of the applicant, would not have disclosed any error in principle.

But the discretion in respect of the order which was ultimately made went to the very core of the obtaining of a fair trial.  So, it is a different way in which the proviso is asked to be applied in this case, because it cannot be applied in the manner in which I have already mentioned.  This goes to the very nature of the obtaining of a fair trial.  If the court proceeds on the basis that the application was one of substance, that if it was granted that the judge would not have made an error, and that the judge proceeded to refuse the application because he proceeded upon a wrong principle, we say that there is no room for the application of the proviso, that he has, in fact, been denied a fair trial and that the court has erred in principle.  They are our submissions.

GLEESON CJ:   Thank you, Mr Vasta.  We do not need to hear you, Mr Meredith. 

In this matter, the Court is of the view that there is insufficient reasons to doubt the correctness of the ultimate decision of the Court of Appeal to warrant the grant of special leave, and the application is refused.

We are going to adjourn for a few moments to reconstitute.

AT 11.10 AM THE MATTER WAS CONCLUDED