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Supreme Court 13 December 2017

R v Stephen

[2017] NSWSC 1740

Homicide
CRIMINAL LAW PROCEDURE DISCUSSION OF OTHER RELEVANT FACTORS TRIAL DATE AND LOCATION CONFIRMED

Citation: R v Stephen [2017] NSWSC 1740
Court: Supreme Court of New South Wales
Date: 13 December 2017
Judge(s): Button J

Background

The accused faced a count of murder arising from an alleged stabbing in Broken Hill on 5 October 2015. The Crown alleged she stabbed her partner once in the chest during an argument, killing him. The defence indicated it would contest both the voluntariness of the act and the required intention for murder, with self-defence expected to be the central issue at trial. Evidence of ongoing domestic violence by the deceased toward the accused was anticipated to be placed before the jury without objection.

The trial had been fixed for 5 February 2018 at the Supreme Court sitting in Broken Hill. By notice of motion filed 29 November 2017, the accused applied under s 30 of the Criminal Procedure Act 1986 (NSW) to have the trial transferred to Sydney. The Crown opposed the application.

  • Whether the trial should be transferred from Broken Hill to Sydney under s 30 of the Criminal Procedure Act 1986 (NSW)
  • Whether a fair and impartial jury could be empanelled in Broken Hill given local knowledge of and publicity surrounding the events
  • What weight to give to other factors, including the accused's financial circumstances, medical needs, family support, witness locations, and the personal hardship of defending a trial far from where she now lives

Decision

Button J acknowledged that s 30 confers a broad discretion requiring an evaluative judgment across multiple factors. His Honour declined to impose a test of "absolute necessity" on the applicant, treating that standard as too demanding. However, he identified a clear starting point: a murder alleged to have been committed in a regional centre should ordinarily be tried by a jury in that centre, and an applicant for a change of venue bears the burden of demonstrating sound reasons to depart from that position.

The accused's counsel advanced seven grounds in support of the transfer. These included the additional cost of conducting a privately funded defence in a remote location, the risk of juror partiality in a small community with local knowledge of both parties, the accused's ongoing medical treatment on the Central Coast, the inability of her brother to travel to Broken Hill due to his medical condition, and the availability of audio-visual links for many witnesses. His Honour accepted that each of these considerations had some force.

Button J nonetheless refused the transfer. A significant concern about impartiality is ordinarily the most compelling basis for a change of venue, but his Honour found no sufficient basis to conclude that an impartial jury could not be empanelled. The fact that both parties had previously agreed to proceed in Broken Hill (on the basis of extended peremptory challenges), and that the Crown's earlier concern about jury empanelment had been raised but not pressed by either side, weighed against granting the order.

His Honour also emphasised a broader principle: public confidence in the administration of justice in New South Wales depends in part on residents of regional communities participating as jurors in trials connected to their communities, just as Sydney residents do. That principle carries particular weight in a state where regional centres can be geographically and culturally distant from the capital.

Orders Made

  • The notice of motion filed 29 November 2017 is dismissed.
  • The trial date of Monday 5 February 2018 at Broken Hill is confirmed, with the jury panel to be called not before Wednesday 7 February 2018.
  • A further directions hearing is confirmed for 10 AM on Wednesday 24 January 2018 at Sydney.
  • The accused's bail is continued until that date, and she must be present at the Supreme Court in Sydney on that occasion.

Key Takeaways

  • Under s 30 of the Criminal Procedure Act 1986 (NSW), the starting point is that a murder alleged to have been committed in a regional centre should be tried in that centre; the applicant must demonstrate sound reasons to depart from this position.
  • A test of "absolute necessity" for a change of venue is too high, but the threshold is meaningful and the discretion must be exercised with proper weight given to the importance of regional jury participation.
  • Concerns about juror impartiality in a small community, while potentially powerful, were not made out on the facts here, particularly given the parties' earlier agreement to proceed in Broken Hill supported by extended peremptory challenges.
  • Personal and financial hardship to the accused and her legal team from defending a trial far from where they are based, while relevant, did not outweigh the general rule favouring trial in the location where the offence occurred.
  • Confidence in the administration of justice across New South Wales, as Button J observed, depends on regional communities having the opportunity to participate as jurors in trials connected to their areas.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 30

Cases
- Director of Public Prosecutions v Bennett [2004] VSC 148
- R v Cattell [1968] 1 NSWR 156
- R v Turnbull (No. 1) [2016] NSWSC 189
- R v Vandergulik [2008] VSC 17