The Queen v Yanner[1997] QCA 416

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 324 of 1997

Brisbane

[R. v. Yanner]

THE QUEEN

v.

MURRANDOO BULANYI MUNGABAYI YANNER

Appellant

Pincus J.A.

de Jersey J.

Muir J.

Judgment delivered 21 November 1997

Separate reasons for judgment of each member of the Court each concurring as to the orders made.

APPEAL AGAINST CONVICTION DISMISSED.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 21 November 1997

The appellant was convicted, after a trial in the District Court at Mt Isa, of the offence of unlawful assembly defined by s. 61 of the Criminal Code.  An appeal has been brought against the conviction on a number of grounds, of which the only one pressed is the first, "[t]he Learned Judge erred in not allowing a change of venue".  An application was made by the appellant personally, at the inception of the trial, to have the venue changed on the ground of local prejudice against the appellant and that was refused.

The appeal is not against the refusal of the application for a change of venue, but against conviction.  Under s. 668E(1) of the Code, on an appeal against conviction the Court "shall allow the appeal if it is of opinion that . . . on any ground whatsoever there was a miscarriage of justice . . . ".  In Callaghan [1966] V.R. 17, one of the grounds on which leave to appeal against conviction was sought was that the judge had wrongly refused an application for a separate trial and, following authority, that was reduced to the question whether there was a miscarriage of justice (21). In Dietrich (1992) 177 C.L.R. 292, the issue raised was whether the trial judge should have proceeded with the trial or put it off on the ground that Dietrich was not legally represented;  the conviction was quashed.  Mason CJ and McHugh J explained that:

" . . . the question before this Court is not merely whether or not an adjournment should have been granted but whether the applicant’s conviction should be set aside ‘on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice’, provided that the conviction will stand if ‘no substantial miscarriage of justice has actually occurred’ ". (312, 313)

The quotation is from s. 568 of the Crimes Act 1958 (Vict).  A similar approach was made by Dawson J (340, 341).

The primary judge in refusing to grant a change of venue, acted on the basis that the appellant bore a "heavy onus" and "must be able to demonstrate that the case is exceptional with real and substantial reasons justifying removal to another venue".  I have read the reasons of de Jersey J and respectfully agree that the proper rule to be applied is that each case in which an application is made for a change of venue falls to be considered on its own merits and not with any preconceptions, save that a trial should ordinarily proceed in the district in which the offence charged is alleged to have been committed, "removal being warranted where sufficient cause is shown".

Insofar as the learned primary judge acted on the basis that the appellant had to discharge a heavy onus or to demonstrate that the case was exceptional, it appears to me that his Honour fell into error.   But that does not necessarily compel the conclusion that there was a miscarriage of justice. 

The primary judge was also mistaken, in my opinion, in treating the application (as he did) as one made under s. 559 of the Criminal Code.  The relevant power to order a change of venue is that contained in s. 63 of the District Courts Act 1967. 

In some instances it may be relatively easy to obtain a change of venue - for example where the charge is one of a grave crime, it appears that there is considerable local hostility to the accused, and there is a much better chance of justice being done if the venue is changed .  But here the offence charged was one which was not high on the scale of seriousness and there were practical considerations of expense and delay to be taken into account;  the application for a change of venue was not made until the inception of the trial.  The appellant produced evidence of pre-trial publicity from which it might fairly be inferred that members of the local community unsympathetic to the cause of indigenous land rights, and in particular those favouring the development of the well-known Century Zinc project, would not be well disposed to the appellant.  But on the other hand, newspaper discussion directed to the attempts to resolve differences concerning the project was, as the evidence showed, by no means confined to the Mt Isa area.  The affair had been given state-wide and indeed national publicity.

There is also the fact that the unlawful assembly alleged had nothing to do with differences relating to the Century Zinc proposal.  Although there were, in my view, mis‑statements of the legal principles applicable, the conclusion at which the learned primary judge arrived - that the trial should proceed with no change of venue - was, in all the circumstances, a proper one, which did not cause a miscarriage of justice.

I agree with de Jersey J and with Muir J that the appeal against conviction should be dismissed.

REASONS FOR JUDGMENT - MUIR J.

Judgment delivered 21 November 1997

The appellant was convicted on 5 August 1997 in the District Court of Mt Isa of the offence of unlawful assembly.  The offence was committed in the course of a demonstration, in which the appellant participated, outside the Mt Isa Police Station on 12 November 1995.  The demonstration arose out of the arrest of the appellant’s brother during the grand final of the All Blacks rugby league football carnival.  At the time of the demonstration the appellant’s brother was being held in the watch house at the rear of the police station.

At the commencement of the trial the appellant, who represented himself, applied for a change of venue.  The application was based on a submission that the appellant could not receive a fair trial in Mt Isa.  That state of affairs was said to result from a combination of the following factors–

· the extent to which the City of Mt Isa was reliant for its economic wellbeing on the mining industry in general and Mt Isa Mines Holding Limited in particular;

· the applicant’s position as a coordinator of the Carpentaria Land Council;

· the applicant’s role, on behalf of the Carpentaria Land Council, in the Century Zinc mining project and negotiations between the proprietors of the proposed mine and the Carpentaria Land Council;

· publicity surrounding these negotiations and, in particular, media publicity which included reports of statements by politicians expressing strong criticism of the appellant.

The application was refused, the trial proceeded and the appellant was convicted.

The appellant appealed against his conviction on a number of grounds but the sole ground relied on on the hearing of the appeal was that the learned trial judge erred in law in not ordering that there be a change of venue.  A number of separate arguments were advanced in support of this ground and I will deal with each of them in turn. 

Ground 1 The learned trial judge erred in treating the appellant’s application for a change of venue as having been made under s. 559(1) of the Criminal Code.  The application was made pursuant to s. 559(2) which does not contain a requirement that the accused showed “good cause”.

The learned trial judge observed, in the course of giving reasons for refusing the appellant’s application, that–

“The application is made under s. 559(1) of the Criminal Code and an applicant whether it be an accused person or the Crown is required to show good cause.  De Jersey J.  in The Queen v. Lane which is reported in (1987) 25 ACR 139 summarised the law as requiring that the applicant bears a heavy onus, must be able to demonstrate that the case is exceptional with real and substantial reasons justifying removal to another venue.”

Sub-sections (1) and (2) of s. 559 provide as follows–

(1) When a person has been committed for trial for an indictable offence at a court held at any place, whether the person has been granted bail or not, the Supreme Court or a Judge thereof may, on the application of the Crown or of the accused person, and upon good cause shown order that the trial shall be held at some other place, either before the same court or before some other court of competent jurisdiction, at a time to be named in the order.

(2) When an indictment has been presented against any person in the Supreme Court or a Circuit Court, the Court may, on the application of the Crown or the accused person, order that the trial shall be held at some place other than that named in the margin of the indictment and at a time to be named in the order.”

The appellant’s argument, in substance, was that–

(a)as an indictment had been presented before the appellant made his application for  change of venue, subs. (2) rather than subs. (1) applied;

(b)subs. (2), unlike subs. (1), did not contain the requirement that “good cause be shown”.  Consequently the test to be applied under subs. (2) was different to that for sub.s. (1).  It involved the exercise of a discretion applying the test in Cording v. Trembath (1921) CLR 163.

In my view, neither subs. (1) nor (2) of s. 559 confers power on a judge of the District Court.  Sub-section (1) deals only with the power of “the Supreme Court or a Judge thereof”.  Sub-section (2) operates only where an indictment has been presented against any person “in the Supreme Court or a circuit court.”  The Criminal Code does not define “circuit court” but the reference is, plainly enough, a reference to sittings of the Supreme Court in a district constituted pursuant to s. 6 of the Supreme Court Act of 1921.  Section 6 authorised the Governor-in-Council by Order in Council to constitute the Supreme Court Districts.  Section 7 relevantly provides:-

“The sittings of the Supreme Court held in a district under this Act shall be a Circuit Court, and for that purpose the provisions of ss. 30, 31, and 32 of the “Supreme Court Act of 1867" shall be applicable, except as regards the dates for holding such Courts.”

Section 30 of the Supreme Court Act of 1867 made provision for the constitution of “Circuit Courts” to be held in prescribed districts “by one or more judge or judges of the Supreme Court who shall fix the dates for the holding of the same.” 

Such provisions are now to be found in the Supreme Court Act 1995 which consolidates provisions of the Supreme Court Act 1921 and the provisions of a number of other acts.

Section 64(1) of the District Courts Act 1967 is drafted on the assumption that “Circuit Court” does not include reference to a District Court.  It provides–

“64.(1) When a person has been committed for trial or sentence to the Supreme Court or a Circuit Court or has been indicted in any such court for an offence triable in a District Court any District Court judge if so requested by the Chief Justice may try or sentence such person and for that purpose shall have the same powers and jurisdiction as if the committal had been to or the indictment had been presented in a District Court.”

The power of a judge of the District Court to order a change of venue of a criminal trial is to be found in s. 63 of the District Courts Act 1967 which provides–

“63.(1) When an accused person is committed for trial to a District Court, not being the Court of the district within which the offence is alleged to have been committed, a judge of the Supreme Court or of a District Court, may order the trial to be held in the Court of that district, and may make all such orders for the remand and custody of the accused person, and for the enlargement of the accused person’s bail or the notices to witnesses, as may be necessary.

(2) In any other case the venue may be changed by order of a judge of the Supreme Court, or of a District Court, who may make the like orders for the purposes aforesaid.

(3) The judge of a District Court may, at any stage of a criminal trial pending in the judge’s court, order that the trial take place at another District Court, subject to such conditions as the judge thinks fit, and may remand the accused in custody or on bail to that court”

Section 21 provides for changes of venue “within the same district” to be determined “on the balance of convenience”.

Although the learned trial judge misunderstood the source of the District Court’s power to order a change of venue it does not appear to me that he failed to take into account matters to which he should have had regard in determining an application under s. 63 of the District Courts Act or that he took into account matters he should not have taken into account.  The reasons for this conclusion are set out below.

Ground 2 The Learned Trial Judge failed to apply the test in Cording v. Trembath (1921) VLR 163  and followed in R.  v.  Cattel & Anor (1967) 86 W.N. 391 R.  v.  Knott (1974) Qd.R 58 and R.  v.  Lange (1986) 25 A.  Crim.  R.  139.

The test in Cording v. Trembath relied on by the appellant is to be found in the following passage from the judgment of Cussen J. at pp 166-167–

“I am not prepared to say that a proper trial would not be possible before a jury at Bendigo;  but it is desirable, in arriving at a conclusion in this matter, to be able to go further than that, and to ensure that not only would a fair trial be had in fact, but that it should be had in such circumstances that all reasonable men would so admit.”

That principle was endorsed by Holmes JA in R v. Cattell.  In that case, Sugerman JA, who gave separate reasons, expressed substantial agreement with the reasons of Holmes JA.  Heron CJ, the other member of the Court, agreed with the reasons of both of the other Judges.  Sugerman JA said at 392–

“But since the choice of venue for a criminal trial is within the discretion of the Attorney-General, from whose exercise we should differ only in an exceptional case and for real and substantial reasons, and since we are so differing in this case, I should add some observations of my own to what my Brother Holmes has written.  This is an exceptional case.  First, there are absent from it those considerations which are usually regarded as requiring or making it desirable that a trial for crime should take place in a particular locality, notwithstanding that that course may involve certain disadvantages to the accused person such as those flowing from local discussion of the crime or local publicity given to the committal proceedings, which disadvantages, it is thought, are met by a just expectation that the jury will perform their duty in accordance with their oaths.”

At 393 His Honour continued–

“Like my Brother Holmes I do not wish to be thought to reflect on the impartiality or integrity of Newcastle jurors.  But I agree with him also that the trial should be had in such circumstances that all reasonable men would admit that it is a fair trial.”

In R v. Dorrington (1969) 1 NSWR 381 at 382 the Court, after referring to Lemon v Attorney-General (1932) 50 W.N. (NSW) 19 as authority for the proposition that the right of fixing a place of trial primarily rests with the Attorney-General and that the Court “requires a very strong case to be made out before it will” interfere with such a right, went on to state at 382–

“The principles were emphasised in the judgment of this Court in R v. Cattell and Sugerman J., there said:  `. . since the choice of venue for a criminal trial is within the discretion of the Attorney-General, from whose exercise we should differ only in an exceptional case and for real and substantial reasons . .’.

Holmes J. said:  ‘The circumstance that the onus lies on the accused to make out a case for removal of a criminal trial from the place where it is said that the events of the crime took place is for the accused and is no doubt a heavy one.’

The discretion is that of the Attorney-General and we repeat that the onus is on the accused to show an exceptional case and real and substantial reasons before the change in venue will be granted.”

It is worth noting that the relevant statutory provision in Cattell and Dorrington was s. 577 of The Crimes Act (NSW).  It relevantly provided–

“In any criminal proceeding, if it is made to appear to the Court–

(a) that a fair or unprejudiced trial cannot otherwise be had, or

(b) that for any other reason it is expedient to do so,

the Supreme Court may change the venue, and direct the trial to be had in such other district, or at such particular place, as the Court thinks fit, and may for that purpose make all such orders as justice appears to require.”

In R v. Knott, Hart J. said that the law which he should apply was to be found expressed in the judgment of Cussen J. in Cording v. Trembath at p 166 and in the judgment of Holmes JA. in R v. Cattell at pp 395 and 396.  In R v. Lange de Jersey J., in considering an application under s. 559 of the Criminal Code, observed at 140–

“. . . s. 559 clearly contemplates that trials should sometimes take place somewhere other than within the district where the crime was allegedly committed.  It has been said, with reference to other but comparable legislation, that an applicant for change of venue bears a heavy onus, and must be able to demonstrate that his case is exceptional, with ‘real and substantial’ reasons justifying removal (Cattell (1968) 1 NSWR 156 at 157, 159) and that a ‘very strong case’ for removal must be made out:  Lemon v A-G (1932) 50 WN (NSW) 19.  In Knott [1974] Qd.R. 58 at 59, Hart J adopted, as the relevant test on s. 559, ‘ to ensure that not only would a fair trial be had in fact, but that it should be had in such circumstances that all reasonable men would so admit’.  That strikes me as a variant of the proposition that justice be done and be seen to be done, a proposition which should clearly guide my determination of this application.”

Counsel for the applicant in his oral submissions sought to elevate what may perhaps be described as the reasonable bystander test propounded in Cording v. Trembath to the status of the sole test or consideration applicable to applications for change of venue.

None of ss. 559(1), 559(2) of the Criminal Code and s. 63 of the District Courts Act prescribe criteria to be met for the purpose of the exercise of the power conferred.  When the discretion falls to be exercised in any case it must, of course, be exercised by reference to circumstances and considerations relevant to that case.  There is nothing to be gained by attempting to formulate an exhaustive list of relevant considerations.

The older authorities should not be regarded as suggesting that the exercise of discretion in applications for change of venue is fettered by rigid judicially promulgated rules or precise formulae, cf. the observations of Bowen CJ, Woodward and Lockhart JJ. in National Mutual Holding Pty Ltd v. Sentry Corporation (1988) 83 ALR 434 at 440.

The authorities canvassed above suggest, however, that the following considerations are likely to be relevant

The cost, expense and inconvenience involved in a change of venue including disruption to Court schedules and the waste of court resources.

Delay which might be occasioned by a change of venue.

Ensuring that a fair trial is had and is seen to be had.

The system of administration of justice in this State which establishes court districts and enables the Crown to select the district in which criminal proceedings will be commenced.

That the result of acceding to the application will be to move the trial from the locality in which the offence was allegedly committed. 

The weight, if any, to be given to those and other factors will vary from case to case.

In that part of the reasons of the learned Trial Judge in which he makes reference to R v. Lange his Honour states principles expressed in R v. Lange and in the earlier criminal cases discussed above.  Cording v. Trembath, on which the appellant so heavily relies, was a civil case.  His Honour did not expressly advert to the consideration, discussed in a number of the cases, that “. . . the trial should be had in such circumstances that all reasonable men would admit that it is a fair trial” or, expressed a little differently, that justice should not only be done but be seen to be done.  But I am not prepared to find that His Honour did not have such a consideration in mind in deciding the application.  At the commencement of his reasons he noted that he had had cause to consider “the cases” applicable to change of venue recently.  Obviously he had regard to de Jersey J’s decision in R v. Lange and it would be surprising if the cases to which he referred did not include at least R v. Cattell and R v. Knott.  His Honour had in mind, also, the ability of the appellant to obtain a fair trial.  In the course of his reasons he remarked–

“It should always be remembered that the High Court since Jago’s case has set down that a person’s right is to as fair a trial as the circumstances permit and it seems to me that with proper directions to the jury, some of which have already been made, there is no reason why the interests of justice will not be served by the trial continuing in this district and the application for a change of venue is refused.”

If his Honour’s expression of the relevant principle can be subjected to any criticism it is that it places undue emphasis on the onus said to be placed on the applicant and fails to refer expressly to other considerations of the nature of those mentioned above.  However, as I have already stated, I am not prepared to conclude that his Honour failed to consider or apply relevant principles.

Ground 3 There was a miscarriage in the exercise of the learned Trial Judge’s discretion–

· in failing to conclude that a fair trial could not be had in Mt Isa by virtue of:

(i) the applicant’s portrayal as a belligerent activist

(ii) a stumbling block to a project beneficial to the Mt Isa district

(iii) the fact that he had been previously convicted of a similar charge.

· in failing to conclude that a cross-section of Mt Isa citizens might consider the applicant as one who might resort to unlawful conduct to obtain what he saw as being a just result in relation to mine negotiations and may therefore consider that he may similarly conduct himself upon his perceived grievance against the police in respect of his brother.

I readily accept that the appellant’s application was one of substance.  He had a high public profile in the Mt Isa district, if not throughout Queensland. The economy of Mt Isa is highly dependent upon the mining industry.  Rightly or wrongly, the appellant’s activities in connection with the Century Zinc Project were likely to be seen, by at least some potential jurors in Mt Isa, as obstructionist or anti-mining.  Such potential jurors would be likely to perceive the appellant as espousing causes and policies which were detrimental to the economic welfare of the area. 

However, it does not appear to me that the reasons of the learned Trial Judge suggest that His Honour failed to appreciate these matters.  He considered the material relied on by the appellant in detail.  He considered also the nature of the offence that was relevant.  He took into account, correctly in my view, that the offence before the Court had nothing to do with the Century Zinc Project or mining.  He noted that the application for change of venue was made at the commencement of the trial notwithstanding the fact that the indictment had been presented on 25 November 1996 and that there had been six previous mentions of the matter before judges of the District Court.  In my view those too were relevant considerations. 

In Murphy v The Queen (1988-89) 167 CLR 94 Mason CJ and Toohey J said in the course of a discussion of pre-trial publicity at p. 99–

“The importance of a fair trial to an accused must not be underestimated.  But it is not the only consideration.  It is important that anyone charged with a criminal offence be brought to trial expeditiously.  Not only is that in his or her own interests but it is in the interests of witnesses and also, in cases such as the present, in the interest of the family of the victim.  It is inimical to the orderly disposition of the work of the courts that trials are adjourned unnecessarily.”

Also relevant was the fact that the last of the publications relied on by the appellant was published in February 1997.  His Honour adverted to that fact.  It was also the fact, as the appellant deposed to himself, that by the time the matter came to Court “the Century Zinc Mine negotiations (had) been successfully concluded.”

Ground 4 The learned Trial Judge identified that the application was based essentially on pre-trial publicity - none of which impinged upon any of the allegations upon which the Crown (relied) to support the charge.

This ground mistakes the approach taken by the learned Trial Judge.  The appellant’s argument was based on adverse feeling towards him which may have been engendered in the local community through his activities as a representative of Aboriginal people.  He particularly relied on publicity in newspapers in that regard.  His Honour noted that he had seen one article which dealt with the incident in question and observed that the remaining published newspaper material on which the applicant relied “essentially revolves around this particular accused man’s involvement as a coordinator for the Carpentaria Land Council in negotiations.”  In so observing His Honour was directly responding to the argument advanced to him.

Conclusion

As I have said the appellant’s application for a change of venue was one of substance.  The learned trial judge could have acceded to it without committing any error in principle.  However, the matter was one for the exercise of a judicial discretion and it seems to me that the way in which the learned trial judge approached the question before him disclosed no error in principle such as would justify the setting aside of his determination.  Nor, in my view, can the learned trial judge’s decision be said to have resulted in a miscarriage of justice for the purposes of s. 668(1) of the Criminal Code.

For the above reasons I would dismiss the appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A.  No. 324 of 1997

Brisbane

Before Pincus JA

de Jersey J

Muir J

[R v Yanner]

THE QUEEN

v

MURRANDOO BULANYI MUNGABAYI YANNER

Appellant

REASONS FOR JUDGMENT - de JERSEY J

Judgment delivered 21 November 1997

I have had the advantage of reading the reasons for judgment of Mr Justice Muir. I agree that the appeal should be dismissed, and for the reasons he has expressed. I will attempt to synthesize my own approach in this way.

In the interests of the orderly administration of criminal justice, there must be a primary understanding that a trial is to proceed in the court district in which the offence allegedly occurred. Section 63(1) of the District Courts Act 1967 should probably be read as assuming that. See also the discussion of Holmes JA in R v Cattell (1967) 86 WN (pt 1) NSW 391, 395-6.

The Court may of course nevertheless order that the venue be changed, in this case under s. 63(2). The Court's discretion, statutorily conferred, is unfettered. But obviously the burden must fall on the party seeking the change of venue to advance a sufficient reason why that should occur. (I would, incidentally, therefore read s. 559(2) of the Criminal Code as did Hart J in R v Knott [1974] Qd R 58, 59.)

Whether a reason is considered sufficient will depend on the consideration of relevant matters, such as those exemplified by Muir J, so far as they may apply to the particular case. The matters the primary judge expressly took into account were relevant, and he does not appear to have ignored any other relevant consideration. Notwithstanding reference to the inappropriate provision, he did not act on any wrong principle. It would therefore be inconsistent with the principles limiting the review of discretionary judgments for this Court now to interfere (House v The King (1936) 55 CLR 499, 505).

Lange (1987) 25 A Crim R 139 is now 10 years old, and some of the cases to which it refers are much older. As suggested by Muir J, the judicial trend over recent years has generally eschewed engrafting limitations onto discretions statutorily expressed in unfettered terms. So far as cases like Cattell describe the onus borne by an applicant for change of venue as “heavy”, Lemon v AG (1932) 50 WN (NSW) 19 referring also to the need for a “very strong” case to warrant removal, they should I think not be read as establishing general principle. Each case falls to be considered on its own merits, in the manner I have described, and not with any preconceptions save a trial should ordinarily proceed in the court district of the alleged offence, removal being warranted where sufficient cause is shown.