Citation: Stewart v R [2019] NSWDC 645
Court: District Court of NSW
Date: 2 August 2019
Judge(s): Norrish QC DCJ
Background
The applicant faced trial in Grafton District Court on a charge of causing grievous bodily harm with intent to cause grievous bodily harm to a former partner, allegedly by branding her with a hot metal implement while she slept at a property near Grafton on 9 September 2017. Before this trial, the applicant had been convicted by a Grafton jury in August 2018 of a separate offence of firing a firearm at a dwelling house, for which he received seven years imprisonment with a four-year non-parole period.
The Grafton Daily Examiner, described as the only local newspaper serving the Clarence Valley, published multiple articles about that earlier conviction and sentencing across September, October and December 2018. A further article in January 2019, styled as a round-up of the biggest court dramas of 2018, included reference to the applicant's case under a prominent and colourful heading, accompanied by a photograph of damage caused by the firearm offence.
The applicant moved to have the upcoming trial transferred away from Grafton, arguing that the cumulative effect of this local media coverage would prevent him from receiving a fair and unprejudiced trial.
Legal Issues
- Whether the adverse media publicity in the Grafton Daily Examiner about the applicant's prior conviction and sentencing justified a change of venue under s 30 of the Criminal Procedure Act 1986.
- Whether the jury selection process and judicial directions could adequately protect the applicant's right to a fair trial without relocating the proceedings.
- Who bears the onus on an application for change of venue based on adverse publicity, and whether that onus had been discharged.
Decision
Issue 1: The applicable legal framework
Section 30 of the Criminal Procedure Act 1986 empowers a court to change venue where a fair or unprejudiced trial cannot otherwise be had, or where it is expedient to do so (at [17]). The court confirmed that there is a presumption in favour of a local trial, though this is a rule of practice and not a rule of law, and each application must be assessed on its own merits without preconceptions (at [18]). The party seeking a change of venue bears the onus of establishing that the publicity would prevent a fair and unprejudiced trial, and contemporary jurors are to be regarded as independent persons who take their oaths seriously rather than as easily influenced by media (at [19]).
Issue 2: The nature and extent of the publicity
The court acknowledged that the publicity here was qualitatively different from cases involving mere reporting of allegations, because it related to a prior conviction, sentence and detailed findings of fact by a sentencing judge, including references to the applicant's criminal history (at [20]). However, the evidence of adverse coverage was confined to print media, with no evidence of electronic or social media coverage, and the relevant articles had been published at least seven months before the trial was scheduled to commence (at [21]).
Issue 3: Whether available mechanisms were sufficient
The court identified several mechanisms capable of protecting the applicant's fair trial rights. The jury empanelment process under s 38 of the Jury Act 1977 would allow for identification of potential jurors with knowledge of the accused or associated persons and addresses, including those connected to the prior trial (at [22]). Jurors who regularly read the local newspaper could be invited to identify themselves and questioned on oath, and written responses could be obtained without disclosing the content to other panel members (at [23], [25]). After empanelment, specific directions warning jurors to disregard any prior publicity could be given, consistent with the approach endorsed in cases such as R v Hughes (at [24]). The court also noted the practical convenience of a local trial, given that all relevant witnesses are local and the applicant was held at a local custodial facility (at [27]).
Issue 4: Whether the onus was discharged
The court was not persuaded that the applicant had discharged the onus of establishing that the adverse media publicity would prevent a fair and unprejudiced trial (at [29]). The court left open the possibility of reconsidering the application if the empanelment process itself demonstrated that a fair trial could not be conducted in Grafton, for example if an insufficient number of jurors without knowledge of the accused could be found (at [29]).
Orders Made
- The application for a change of venue was refused.
Key Takeaways
- An applicant seeking a change of venue on the basis of adverse media publicity bears the onus of establishing that a fair and unprejudiced trial cannot otherwise be had; the mere existence of prior local coverage of a conviction and sentence does not automatically discharge that onus (at [19], [29]).
- The District Court confirmed that the presumption favouring a local trial is a rule of practice, not a rule of law, and each application must be assessed on its merits, weighing the practical mechanisms available to safeguard fairness (at [18]).
- Jury selection procedures under s 38 of the Jury Act 1977, combined with targeted questioning of panel members and appropriate judicial directions about media publicity, remain available tools that courts may consider adequate to address pre-trial publicity, even where that publicity concerns a prior conviction (at [22]-[24]).
- Consistent with the High Court's approach in R v Dupas and the Court of Criminal Appeal's reasoning in R v Hughes, the court applied the principle that contemporary jurors are assumed to be independent, conscientious and capable of following judicial directions, rather than fragile or susceptible to media influence (at [16], [19]).
- Refusing the application did not foreclose reconsideration; the court signalled it would revisit the question if the empanelment process itself revealed that an insufficient pool of impartial jurors was available in Grafton (at [29]).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986
- Jury Act 1977
Cases
- Dupas v R [2012] VSCA 328
- Murphy v The Queen (1989) 167 CLR 94
- R v Abu Hamza [2007] 22 WLR 226, [2007] 3 All ER 451, [2007] 1 Cr App R 27
- R v Burrell [2004] NSWCCA 185
- R v Dupas [2010] HCA 20
- R v Hughes [2015] NSWCCA 330
- R v Jamal (2008) 72 NSWLR 258
- R v Turnbull (No. 1) [2016] NSWSC 189