Citation: Regina v Brewer [2000] NSWCCA 488 revised - 23/11/2000
Court: NSW Court of Criminal Appeal
Date: 20 November 2000
Judge(s): Sully J (principal judgment), Whealy J, Howie J
Background
The applicant was one of four men charged with the murder of a man stabbed to death at Kamarah, near Griffith, in January 1999. Three of the co-accused had already been dealt with, one by guilty plea and two by jury verdict following a trial before Bell J at Griffith. Both the original committal proceedings and the co-accused's trial attracted significant local media coverage.
The applicant was separately committed for trial, with his trial listed to commence in Griffith before Bell J. He applied to move the trial to Sydney, citing pre-trial publicity and the conditions of his proposed custody in police cells during the trial. Bell J refused the application on 27 October 2000.
The applicant then brought the present application under s 5F of the Criminal Appeal Act 1912, seeking leave to challenge that refusal before the Court of Criminal Appeal.
Legal Issues
- Whether Bell J erred by taking into account an irrelevant consideration, namely the potential consequence that directing a change of venue based on police cell accommodation might result in criminal trials no longer being held at Griffith
- Whether Bell J misapplied the High Court's reasoning in Glennon (1992) 173 CLR 592 to the facts
- Whether the refusal of the venue change was so unreasonable or plainly unjust as to indicate a failure to properly exercise the discretion, in relation both to the pre-trial publicity ground and the custody conditions ground
Decision
Sully J identified three governing principles at the outset. First, the decision to refuse a venue change involved the exercise of judicial discretion, which an appellate court will not disturb lightly, consistent with the principles in House v The King (1936) 55 CLR 499. Second, a change of venue requires a strong positive case in favour of the relief, citing R v Dorrington (1969) 1 NSWLR 381. Third, unlike the Crown, an accused person seeking to challenge an interlocutory ruling under s 5F must first obtain leave, since Bell J had not granted a certificate under the section.
On the first ground, Sully J rejected the submission that Bell J improperly took into account the prospect of criminal trials no longer being held at Griffith. Reading the relevant paragraphs of her Honour's judgment together, Sully J found that Bell J was doing no more than identifying and balancing competing legitimate considerations, including the practical reality that accused persons in country trials are commonly held in police cells.
On the second ground, Sully J found that Bell J had used Glennon only for a limited and proper purpose, and that no error in the application of that authority was demonstrated. On the third and fourth grounds, Sully J acknowledged that the pre-trial publicity and custody conditions were matters of substance that deserved, and received, serious consideration by Bell J. He held, however, that the applicant had not discharged the heavy onus of demonstrating that no reasonable assessment of the material before Bell J could have justified a refusal of the venue change application. Whealy and Howie JJ agreed, with Howie J adding that Bell J was in a particularly advantageous position given her prior involvement with the co-accused proceedings.
Orders Made
- Leave to appeal refused
- Decision of Bell J affirmed
Key Takeaways
- An accused person challenging an interlocutory ruling under s 5F of the Criminal Appeal Act 1912 must obtain leave to appeal, as the right of appeal without leave is reserved for the Crown and other prosecuting authorities.
- A change of venue requires the applicant to establish a strong positive case for the relief; the burden is not a light one, as confirmed by reference to R v Dorrington.
- In dismissing the appeal, the Court reaffirmed that appellate intervention in the exercise of a trial judge's discretion requires demonstration of specific error under the House v The King principles, not merely a different view of the merits.
- No error was established where a trial judge balanced custody conditions and pre-trial publicity against countervailing practical considerations, including the common occurrence of police cell custody at country venues.
- A trial judge's prior involvement with related proceedings concerning co-accused was recognised as placing that judge in a particularly advantageous position to assess a venue change application.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
Cases
- House v The King (1936) 55 CLR 499
- R v Dorrington (1969) 1 NSWLR 381
- Glennon (1992) 173 CLR 592