Citation: R v Haines (No.2) [2016] NSWSC 1825
Court: Supreme Court of New South Wales
Date: 13 October 2016
Judge(s): Garling J
Background
The accused stood charged with two counts of murder arising from events at an aged care facility in Ballina, New South Wales. The trial was scheduled to be heard at Lismore and was set to call approximately 66 witnesses, the vast majority of whom came from the local region.
Within the first week, two separate juries were empanelled and then discharged. The first jury was discharged after a juror revealed her grandmother was a resident of the aged care facility at the centre of the alleged offences. The second was discharged following notes from a juror and a court officer raising concerns connected to the local area.
Counsel for the accused applied for the venue of the trial to be moved from Lismore to Sydney, invoking the court's power under section 30(2) of the Criminal Procedure Act 1986. The Crown did not press for the trial to remain at Lismore.
Legal Issues
- Whether it was expedient, under section 30(2) of the Criminal Procedure Act 1986, to change the venue of the trial from Lismore to Sydney
- How to weigh the general principle that trials should be held locally against the practical difficulties of empanelling an impartial jury in the local area
Decision
The case for a local trial: Garling J acknowledged the strong presumption in favour of local trials. Local proceedings allow community members to observe the administration of justice, reduce disruption to witnesses who live nearby, and bring jurors who share common knowledge of the area's customs and expressions (at [9]-[10]).
The practical obstacles to empanelling a jury at Lismore: On the second jury panel, over a hundred potential jurors were summoned but only twenty remained after twelve were excused because of personal connections to witnesses or to businesses associated with the case. After five challenges were exercised under the Jury Act 1977, very few spare jurors remained (at [4]-[6]). Garling J concluded that the same problem would recur with any further panel summoned in Lismore, given the volume of local witnesses to be called. An additional risk existed that jurors might recognise witnesses by appearance even where a name alone did not prompt a concern (at [7]).
Balancing the competing considerations: Garling J treated the accused's entitlement to a trial that could start promptly and run through to an uninterrupted conclusion as the most significant factor. The accused had been in custody for a lengthy period, and delay in the administration of justice can itself be an instrument of injustice (at [11], [15]). The substantial cost to the community of repeatedly summoning, discharging, and reconstituting juries also weighed against continuing in Lismore (at [11]).
Outcome: Taking all matters into account, Garling J determined that it was expedient under section 30(2) of the Criminal Procedure Act 1986 to move the trial to Sydney, directing it to commence on Monday 17 October 2016 (at [16]). The judge also invited counsel to consider whether some witnesses whose evidence was likely to be uncontroversial could give evidence by audio-visual link from the local courthouse rather than travelling to Sydney (at [17]).
Orders Made
- The trial is to take place in Sydney, pursuant to section 30(2) of the Criminal Procedure Act 1986
- The trial is directed to commence on Monday 17 October 2016 at 10am in Court 5, King Street, Sydney
- Administrative arrangements to be made to ensure the accused is transported to court
Key Takeaways
- Under section 30(2) of the Criminal Procedure Act 1986, the Supreme Court may change the venue of a criminal trial where it is expedient to do so, even where the ordinary presumption favours a local hearing (at [9]-[10], [16]).
- The general preference for local trials rests on legitimate foundations, including community access to proceedings, reduced disruption to local witnesses, and juror familiarity with local customs, but those considerations are not absolute and must be weighed against competing interests (at [9]-[10]).
- Where the volume of local witnesses creates a real risk that successive jury panels cannot be constituted in the trial locality, that risk can justify relocating the trial to another venue (at [5]-[6], [11]).
- An accused person's entitlement to a timely, uninterrupted trial was treated by the court as a particularly weighty consideration, especially where the accused had already spent a lengthy period in custody (at [15]).
- Delay in the administration of justice was expressly identified as capable of being an instrument of injustice, reinforcing the court's conclusion that a prompt change of venue better served the interests of justice than repeated attempts to empanel a jury locally (at [11]).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986
- Jury Act 1977
Cases
- Not applicable