Area of Law – Practice and Procedure

An Article about Change of venue in criminal trial

COURTS – change of venue
Often as a defendant in a regional centre you may feel that you will not get a fair trial because the locals all know each other. Or it may be that the reporting in that area has been far more intense and inflammatory than is generally the case. In these circumstances you might want to move your trial.

Changing venue is generally a practical decision. If all the witnesses and you are living in Melbourne then the Court might be willing to move a matter here. If the Court has spare time in its calendar it might be willing to move a matter.

If there is not some practical reason generally the concern of the accused is not enough to have the trial moved.

Below is some of the case law in relation to the issue;

s.359(1) Crimes Act 1958 reposes in the court a discretion to remove a trial from a fixed venue to another place.

The criteria for the exercise of the discretion are well known and were stated by Lush J in R v Ratten 4 August 1970 thus:

“In my opinion, the starting point of a case such as this is that it is a matter of public interest and public policy that a trial should be held in the locality and (in this case it is the same thing) in the community area in which the crime is alleged to have been committed.”

His Honour stated the reason:

” … so that justice will be seen to be done by those who are interested in seeing it and so that no feeling can arise that justice is done in a distant place and community.”

Public policy reasons against a change of venue
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.”

DPP V Bennett [2004] VSC 148 Cummins J

Trial in on Christmas island population of 1600 not moved
R v Ong (1999) WASC 51 at [7]. (a trial on Christmas Island, which had a population of 1600, and as to which an application for change of venue to Perth was made)

Onus on applicant and should be based upon proper material
The principle has long been established that the onus rests upon the applicant to show good cause why a fair and impartial trial at a venue is at risk:

R v Cattell(1967) 86 WN (1) NSW 391.

and that the application should be based upon proper material:

R v Anderson (1974) 5 ALR 268.

Issue one of showing sufficient cause
R v Iaria & Panozzo, Nettle J, as he then was, said:

“I take the law now to be…. ‘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’.”

 

Date: 01/09/2009