Citation: R v Cairney (No 6) [2024] NSWSC 1550
Court: Supreme Court of New South Wales
Date: 29 November 2024
Judge: Campbell J
Background
The accused faced trial for murder arising from a fatal stabbing on 18 December 2022. He had been in custody since that date. The trial was listed to commence in Wollongong on 18 November 2024, those being the earliest available dates in that city at the time of arraignment approximately twelve months prior.
On the second day of trial, the jury was discharged after the prosecution served new evidence on the Friday before trial commenced and over the following weekend. Campbell J had already ruled (in R v Cairney (No 3) [2024] NSWSC 1513) that the interests of justice required a longer adjournment than the Crown's proposed re-empanelment within days. The court noted that the need for the adjournment was caused by the prosecution's late service of evidence, and not by any conduct of the accused or his legal representatives.
Following the adjournment, the question became where and when the retrial should be held. Limited court space in Wollongong meant the earliest available date there would push the total period of pre-verdict custody toward three years. The Crown applied to change the venue to Sydney under s 30 of the Criminal Procedure Act 1986 (NSW).
Legal Issues
- Whether the court should exercise its power under s 30 of the Criminal Procedure Act 1986 (NSW) to change the trial venue from Wollongong to Sydney.
- Specifically, whether it was "expedient in the interests of justice" to do so under s 30(b), given the delay that would result from retaining the Wollongong venue.
- How to balance the longstanding rule of practice favouring local trials against the accused's prolonged pre-trial custody and the limited availability of court infrastructure in Wollongong in 2025.
Decision
Campbell J confirmed that no issue arose under s 30(a): a fair and unprejudiced trial could be held in Wollongong, notwithstanding some degree of local notoriety surrounding the case. The operative question was s 30(b), namely whether it was "expedient in the interests of justice" to change the venue. His Honour emphasised that "expedient" in this context means expedient in the interests of justice, not merely convenient for administrative purposes.
The court acknowledged the important but not inflexible rule of practice that serious indictable offences should be tried, so far as possible, in the locality where the alleged events occurred. That rule has deep historical roots, extending to before extant records of the Royal Courts, and has sound policy foundations: it gives local communities direct access to proceedings and supports the constitutional role of the jury. The Supreme Court has conducted circuit trials throughout New South Wales since its establishment in 1824.
However, the limited availability of court space in Wollongong during 2025 meant the earliest available retrial date there would leave the accused, who is presumed innocent, in pre-trial custody for approaching three years. Given the seriousness of the charge and the circumstance that the adjournment was wholly attributable to late prosecution disclosure, Campbell J held that this delay engaged s 30(b).
The court also considered witness inconvenience arising from a change of venue. Several lay witnesses had health, mobility, or family care concerns. His Honour accepted those inconveniences but noted that one witness would in any event be entitled to give evidence remotely, that Sydney is approximately 90 minutes from Wollongong by train, and that the standard of justice administered by juries is the same regardless of where a trial is held. Taking all these factors into account, the court directed that the venue be changed to Sydney, with the trial to commence on 19 May 2025, a date materially earlier than the first available date in Wollongong.
Orders Made
- Pursuant to s 30 of the Criminal Procedure Act 1986 (NSW), the venue of the trial was changed from Wollongong to Sydney.
- The trial was listed to commence on 19 May 2025, with an estimate of three weeks.
- The Registrar was directed to issue an order under s 77 for the accused's attendance in person at the Supreme Court in Sydney for the purpose of the trial.
Key Takeaways
- The longstanding rule favouring local trials for serious indictable offences is a rule of practice, not a rule of law, and it yields to the interests of justice in appropriate circumstances.
- Under s 30(b) of the Criminal Procedure Act 1986 (NSW), a court may change venue where it is "expedient in the interests of justice" to do so; the applicant need not demonstrate exceptional circumstances or satisfy a heavy onus.
- Prolonged pre-trial custody of a person presumed innocent, particularly where the adjournment causing that delay was not of the accused's making, can constitute a sufficient basis to engage s 30(b).
- Practical inconvenience to witnesses does not automatically defeat a venue application; the court will weigh those concerns against competing factors, including geographic proximity of the alternative venue and the availability of remote witness arrangements.
- In fixing the new trial date, the Supreme Court gave slightly greater weight to defence counsel's availability over that of the Crown Prosecutor, reflecting the closer individual relationship between an accused and their counsel compared with the more abstract relationship between the community and prosecuting counsel.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 30 (change of venue)
- Criminal Procedure Act 1986 (NSW), s 77 (attendance of accused in custody)
Cases
- R v Cairney (No 3) [2024] NSWSC 1513
- R v Turnbull (No 1) [2016] NSWSC 189
- R v Vjestica [2008] VSCA 47; 182 A Crim R 350