Wotton v Director of Public Prosecutions
[2006] QDC 202
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Wotton v Director of Public Prosecutions[2006] QDC 202
- Add to List
Wotton v Director of Public Prosecutions[2006] QDC 202
Wotton v Director of Public Prosecutions[2006] QDC 202
[2006] QDC 202
DISTRICT COURT
CRIMINAL JURISDICTION
ACTING CHIEF JUDGE SKOIEN
No DCR12 of 2006
LEX PATRICK WOTTONApplicant
and
DIRECTOR OF PUBLIC PROSECUTIONS (QUEENSLAND)Respondent
TOWNSVILLE
DATE 14/07/2006
JUDGMENT
HIS HONOUR. This is an application for a change of venue of the applicant's trial from the Townsville District to the Brisbane District Court. The application is made under section 590AA of the Criminal Code, the basis for my jurisdiction being section 63 of the District Court Act 1967.
It arises in an interlocutory form from the proposed trial of the applicant consequent on riotous events which occurred on Palm Island in November 2004.
The applicant stands charged with one count of riotous damage for which the maximum penalty can be seven years, and three counts of arson for which the maximum penalty can be life imprisonment.
A similar application came before his Honour, Judge Pack, in this Court some months ago and his Honour dismissed the application. This is, and I emphasise this, in no respect an appeal from his Honour's judgment. The evidence before his Honour was, I think it is common ground to say, much more scanty than has been placed before me and I refer in particular to a survey of residents of the greater Townsville area within the radius from which jurors are summoned.
It is of course a central precept of our law that in all but exceptional cases a trial should take place in the district in which the alleged offence occurred. But there is another central precept of our criminal law which was described thus in R v. Glennen (1992) 173 CLR592 at 623, per Deane, Gaudron and McHugh, Justices:-
"…that no person shall be convicted of a crime otherwise than after a fair trial according to law". This "dictates that an accused is entitled to be protected from an unacceptable and significant risk that the effect of prejudicial pre-trial publicity will preclude a fair trial."
It is common ground that in order for the application to succeed, sufficient cause must be shown. See R v. Yanner (1998) 2 Qd.R 208 at 209 per Pincus JA.
As was pointed out by Muir J in Yanner, no settled list of relevant features has been arrived at. Rather the circumstances of each case should be considered.
A starting point might be the comparative expense of the trial in (in this case) Townsville, compared with the expense of a trial in Brisbane. No precise figures have been placed before me and of course they could be little more than guesstimates at this stage. But in favour of the prosecution case I am prepared to work on the assumption that it would be greatly more expensive to have this matter tried in Brisbane. A dominant feature would be the very high cost of transport of the many witnesses over a lengthy distance and their accommodation in a city which I would think provides accommodation at a greater expense than in Townsville. The cost of counsel may also be more expensive in Brisbane.
As discussed with counsel during submissions, the trial is not imminent so there is no question of wasting allocated Court time and incurred legal costs.
The vital evidence before me, as I see it, is provided in the survey carried out by the AEC Group Limited. It is annexed to an affidavit by Carey John Ramm who is the executive chairman of the company. I am satisfied that the survey is detailed, scientific and professionally carried out and it is the fact that nothing to the contrary is placed before me nor has any criticism been made of the approach in the carrying out of the survey.
The first thing that the survey shows is that despite the delay which has occurred, which is almost two years, the events which gave rise to this prosecution are still well known to virtually 100 per cent of the surveyed people. That does not surprise me. Whereas in Brisbane there was publicity of it and I would think that some Brisbane residents may have some recollection of what took place, I would consider that very few Brisbane residents would have any knowledge of the identity of the people concerned and, for that matter, of the details of the events.
It is undoubtedly the case that in Townsville there was initially very heavy publicity about the events on Palm Island in November 2004, considerably heavier publicity than in Brisbane. That publicity, on the material before me, was arguably highly adverse to the applicant accused person. It also contained the remarkable feature of a police officer (I understand him to have been a member of the police union) immediately upon a number of the accused being granted bail, making public statements, which were televised, highly critical of the decision. I rather doubt that an event like that would be still in the minds of Brisbane people, but could well be in the minds of Townsville residents.
The fact that the passage of time of almost two years since the events on Palm Island has not affected the recollection of the Townsville residents is, of course, clearly borne out by the results of the survey, some of the details of which include the finding that a large proportion of respondents had personally experienced antisocial behaviour involving Aboriginal or Torres Strait Islanders. the highly important fact that this particular accused man is apparently readily recognised by many of them, in fact 36 per cent were aware of his identity. 21 per cent of the respondents indicated that they believed that people named in the supplied list (which included this applicant) were criminally responsible for the riots. the fact that the most commonly nominated personality was this applicant who was so named by 12.8 per cent of the total sample and 61 per cent of those able to specify names.
It is commonly assumed that a jury will understand and act in accordance with a judicial direction to have regard only to the evidence led in a criminal trial. This is stated forcefully in R v. Glennen. In that case there was but a rudimentary survey of some respondents; on the contrary here. Approximately half of the sample indicated that they were unsure or did not believe that they would be able to follow such a direction. That is a very telling argument in favour of the application.
Indeed it follows, it seems to me, that it cannot be confidently assumed that a properly instructed jury will act upon the instructions given to it. I am driven to the belief that there is a risk of prejudice in this case despite the best efforts of the trial Judge in giving appropriate directions.
A submission was made by Mr Greggery for the Crown that section 47 of the Jury Act could overcome the potentiality of prejudice by the trial Judge inquiring into matters of possible prejudice of the jury panel at the end of the selection process.
In my opinion the trial Judge, to do this, would have to conduct a wide ranging examination of all the jurors, not just on their knowledge of the facts of the central events, but would have to stray into sociological issues and such things as the context in which the events of November 2004 occurred. To my understanding, based on a lengthy period on this Bench and a lengthy period at the Bar, that would be a novel approach and it may very well be beyond the skill of a trial Judge to carry out. It would be safer, in my view, and more in accordance with normal procedure, to try the case in the normal way in an area in which it was thought that the possibility of prejudice was unlikely.
At page 209 of Yanner, Pincus JA, says this:-
"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."
The circumstances referred to by Pincus JA, exists here.
In all the circumstances I have come to the conclusion that sufficient cause has been shown to order a change of venue of this trial to the Brisbane district and that is the order I make.