Citation: R v Rawlinson [2013] NSWSC 1722
Court: Supreme Court of New South Wales
Date: 21 November 2013
Judge: Harrison J
Background
The accused was one of three co-accused charged with the murder of a Wollongong solicitor, whose death was alleged to have resulted from a deliberately lit fire at her home in Corrimal in the early hours of 27 October 2011. The deceased had lived, studied, and practised law in the Wollongong area throughout her life and was well known in the local legal community. A co-accused, who had known the deceased both professionally and personally, had already pleaded guilty.
The accused applied by notice of motion, filed on 28 October 2013, for the trial venue to be moved from Wollongong to Sydney ahead of the scheduled February 2014 trial date. The application was made under s 30 of the Criminal Procedure Act 1986, which permits a change of venue where a fair or unprejudiced trial cannot otherwise be had, or where it is expedient to do so.
The accused's principal concerns were twofold: the significant local media attention the case had attracted in the Wollongong area, and the likelihood that prospective jurors drawn from that community would know the deceased, or know witnesses expected to be called at trial, many of whom worked in Wollongong's legal and government sectors.
Legal Issues
- Whether the accused had discharged the heavy onus of establishing that a fair or unprejudiced trial could not otherwise be had in Wollongong, within the meaning of s 30 of the Criminal Procedure Act 1986.
- Whether the level of local publicity and the deceased's prominence in the Wollongong legal community created a sufficiently exceptional circumstance to justify transferring the trial to Sydney.
- Whether the risk that prospective jurors might know likely witnesses warranted a pre-emptive change of venue.
Decision
Harrison J dismissed the application. His Honour accepted that the case had attracted considerable local interest and that the deceased was well known in Wollongong's legal community, but found that these circumstances did not rise to the level of exceptionality required to justify overriding the Attorney General's designated trial venue.
The court drew on the foundational principle affirmed by McHugh J in Gilbert v The Queen (2000) 201 CLR 414: the criminal jury system operates on the assumption that jurors will heed their oath, attend to the evidence, and follow the trial judge's directions. To depart from that assumption, Harrison J reasoned, would undermine the legitimacy of jury trials entirely.
His Honour distinguished the circumstances from those in R v Cattell (1967), where a change of venue from Newcastle had been ordered. In that case, the accused was alleged to have been associated with a failed corporate group whose collapse had directly caused financial loss to a disproportionately large segment of the local population from which jurors would be drawn, creating a genuine and measurable risk of partiality. No comparable structural risk was present here.
Harrison J held that the accused's core concern, namely that jurors might fail to heed directions to stand aside if they had relevant connections or preconceptions, could not be tested in advance. Unless and until that situation actually arose at empanelment, the appropriate course was to proceed on the assumption that prospective jurors would comply with their instructions. The concern was speculative and, in the court's assessment, did not justify a pre-trial change of venue.
Orders Made
- The accused's notice of motion for a change of venue was dismissed.
Key Takeaways
- Under s 30 of the Criminal Procedure Act 1986, the onus of establishing the need for a change of venue lies heavily on the accused, and courts will not lightly interfere with the Attorney General's designated trial location.
- Local publicity and the community prominence of a deceased victim do not, without more, constitute the kind of exceptional circumstances that justify a pre-trial change of venue.
- The criminal jury system rests on a foundational assumption that jurors will act in accordance with their oath and comply with judicial directions; displacing that assumption requires concrete, not speculative, evidence of likely partiality.
- Refusing the application, the Supreme Court affirmed the principle established in R v Cattell narrowly: a change of venue requires circumstances such as widespread direct financial harm to the local jury pool, not merely general community interest or professional familiarity with the deceased.
- A concern that some prospective jurors may know potential witnesses is a matter to be addressed through the empanelment process itself, including directions to withdraw, rather than through a pre-emptive transfer of venue.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 30
Cases
- Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
- R v Cattell (1967) 86 WN (Pt 1) 391
- R v Dorrington [1969] 1 NSWR 381
- R v Brewer [2000] NSWCCA 488
- The Queen v Boriss Vjestica [2008] VSCA 47