Citation: R v Eliot (a pseudonym) (No. 3) [2022] NSWDC 701
Court: District Court of New South Wales
Date: 4 March 2022
Judge: Grant DCJ
Background
A young person, referred to by the pseudonym Thomas Eliot, was charged with conspiracy to murder and soliciting murder. The allegations concerned a planned large-scale attack on a regional high school involving explosives and knives, documented in a plan the accused titled "Project Hellfire." The accused had constructed and detonated a bomb in preparation, and the arrest generated significant media coverage.
The accused was arraigned at the Albury District Court in February 2022. His legal representatives had initially foreshadowed an application to move the trial to Griffith but did not proceed with it. The question of a change of venue nonetheless remained live, and the Court ultimately considered the issue on its own motion.
The trial was estimated to run for two weeks. It could commence in Griffith on 1 August 2022 but could not be heard in Albury until 7 November 2022. The defence did not oppose the transfer to Griffith. The Crown, instructed by the Director of Public Prosecutions, opposed it.
Legal Issues
- Whether the Court had power to change the trial venue on its own motion, without a formal application by either party
- Whether the presumption favouring trial in the locality where an offence is alleged to have occurred is a rule of law or merely a rule of practice
- Whether the balance of convenience and the interests of the young person, the complainants, and witnesses favoured moving the trial to Griffith
- Whether concerns about media publicity created a risk that a fair trial could not be had in Albury
- Whether a change of venue would open a "floodgate" of applications to transfer trials to whichever venue had the earliest available date
Decision
Grant DCJ confirmed that the Court holds power under section 30 of the Criminal Procedure Act 1986 to change the venue of a trial on its own motion, a proposition the Crown itself conceded. The Crown's opposition rested on two main arguments: that there is a presumption in favour of trial in the locality of the alleged offence, and that permitting a venue change would open the door to parties routinely seeking the earliest available court date across the State.
The Court rejected the locality argument on the basis that the presumption favouring a local trial is a rule of practice, not a rule of law. It carries weight but is not determinative, and it was outweighed here by a combination of factors: the age and rights of the young person, the extent of local media reporting, the logistical burden of empanelling a jury in Albury (which would require large panels assembled in the street outside the courthouse), and the availability of AVL and other technology enabling Albury-based witnesses to give evidence remotely.
The floodgates argument was also rejected. Grant DCJ noted that he presides over both Albury and Griffith as effectively the same court, and that any transfer would remain within those two venues. The concern that a precedent would encourage parties to seek transfers to any venue in the State with early availability did not apply to the circumstances of this case.
The Court found that, on the balance of convenience, it was expedient to list the trial in Griffith on 1 August 2022. This outcome served the interests of the young person in having serious charges resolved without further delay, addressed concerns about trial fairness arising from local publicity, reduced juror disruption, and involved no identifiable prejudice to the Crown.
Orders Made
• The trial venue is changed from Albury to Griffith
• The trial is to proceed on 1 August 2022 in Griffith
• Written reasons for the change of venue to be provided to the parties
Key Takeaways
- The District Court confirmed that a court may change the venue of a criminal trial on its own motion under section 30 of the Criminal Procedure Act 1986, without a formal application by either party.
- The presumption in favour of trying an accused in the locality where an offence allegedly occurred is a rule of practice only, not a rule of law, and can be displaced by sufficient countervailing considerations.
- Where extensive media coverage raises a genuine concern about trial fairness, and an alternative venue offers an earlier hearing date, those factors can together justify a change of venue even over Crown opposition.
- A "floodgates" argument against venue changes was rejected in circumstances where the presiding judge exercised jurisdiction over only two venues and the transfer remained within those venues.
- Technological developments during the pandemic, particularly AVL and remote witness evidence, have reduced the practical weight of locality-based objections to venue changes, as witnesses need not travel to give evidence.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 30
Cases
- R v Whatman [2020] NSWDC 562