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Supreme Court 29 February 2016

R v Merrick

[2016] NSWSC 163

Homicide
CRIMINAL LAW APPLICATION FOR A CHANGE OF VENUE POSSIBILITY OF BIAS OR APPREHENDED BIAS

Citation: R v Merrick [2016] NSWSC 163
Court: Supreme Court of New South Wales
Date: 29 February 2016
Judge(s): Wilson J

Background

The accused was arraigned in the Supreme Court sitting in Newcastle on a charge of murder, alleged to have occurred in December 2013 at New Lambton Heights. He entered a plea of not guilty.

Before the trial commenced, counsel for the accused moved on a notice of motion seeking to relocate the trial from Newcastle to the Supreme Court in Sydney. The basis for the application was that Facebook posts about the accused and the proceedings had created a risk of juror bias in the local community.

In support of the motion, the defence tendered affidavits from the accused's solicitor and his mother, together with printouts of Facebook posts. The posts contained derogatory commentary about the accused, references to his bail status, discussion of alleged prior conduct, and complaints about delays in the proceedings. Some participants in the Facebook discussion were identified as current or former police officers, and one as a former employee of the Department of Attorney-General and Justice.

  • Whether the Facebook posts gave rise to a real risk that the accused could not receive a fair trial if the proceedings remained in the Newcastle area.
  • Whether a reasonable and fair-minded observer, fully informed of all relevant facts, would conclude that the trial would be so prejudiced as to be unable to proceed locally.
  • Whether a change of venue to Sydney was necessary and appropriate in the circumstances.

Decision

Wilson J refused the application. Her Honour was not persuaded that the evidence established any real threat to the integrity of the trial if it proceeded in Newcastle. The Facebook posts appeared to be confined to a relatively small and largely identifiable group of approximately thirty participants, with no evidence suggesting widespread readership or dissemination.

Her Honour noted an absence of evidence about how Facebook operates, including how many people could access the posts and under what conditions. On the evidence available, access appeared to be limited to those with a particular "friend" status, rather than being open to the general public. This undermined the submission that the posts posed the kind of diffuse, uncontainable prejudice that might justify a venue change.

The court identified two practical safeguards capable of addressing any residual risk. First, during the empanelment process, the jury panel could be questioned directly about exposure to Facebook posts concerning the accused or the trial, allowing affected persons to be identified and excluded. Second, jury directions could address any knowledge of the case derived from media coverage more broadly.

Wilson J also observed that the internet is not geographically bounded. Since a Sydney resident with "friend" access to the posts could view the material just as easily as a Newcastle resident, relocating the trial to Sydney would not resolve the risk the accused identified. The same empanelment and direction processes available in Newcastle would be equally available in Sydney.

Orders Made

  • The application for a change of venue was refused.
  • The notice of motion was dismissed.

Key Takeaways

  • Refusing the change of venue application, the Supreme Court applied the reasonable and fair-minded observer test from Webb and Hay v The Queen, asking whether such an observer would conclude that a fair trial in the local area was impossible.
  • Restricted Facebook posts seen by a small, largely identifiable group were insufficient, on the evidence, to establish a real threat to trial fairness.
  • The court confirmed that practical empanelment procedures, including directly questioning prospective jurors about exposure to social media posts, can address potential prejudice arising from such material.
  • Because social media is not geographically limited, a change of venue cannot neutralise the risk of juror exposure to online content; the same safeguards remain available regardless of where the trial is held.
  • Consistent with established principle, criminal offences are ordinarily tried in the area where they are alleged to have occurred, as this best ensures justice is both done and seen to be done.

Legislation and Cases Referenced

Cases:
- R v Milat CCA 60438/96 [1998] NSWSC 795
- The Queen v Glennon [1992] HCA 16; (1992) 173 CLR 592
- Webb and Hay v The Queen [1994] HCA 30; 181 CLR 41

Legislation: No legislation was cited in the judgment.