R v Manning[2017] QDCPR 26

DISTRICT COURT OF QUEENSLAND

1. [1]
   The defendant applies to change the venue of the trial of this indictment from Cairns to Brisbane, or alternatively to Townsville, on the grounds of adverse publicity and the diminishment of the pool of potential jurors in the district.
2. [2]
   The application is opposed.

Background

3. [3]
   The defendant was charged on 11 February 2010 in relation to alleged child sexual offences against a boy aged between 11 years and 8 months, and almost 13 years.
4. [4]
   After committal hearings on 8 September 2011 and 14 October 2011, the matter proceeded to a pre-trial hearing on 28 September 2012.
5. [5]
   The defendant has endured 3 trials and two appeals in relation to this indictment.
6. [6]
   In the first trial in May 2013, he was convicted of 20 charges.  He successfully appealed against those convictions on the grounds that certain evidence was wrongly admitted against him.  The convictions were set aside on 17 February 2014, and a retrial was ordered.
7. [7]
   In the second trial held in July 2014, the jury was discharged because one juror carried out private research in relation to the case.
8. [8]
   In the third trial the defendant was convicted of 20 counts of child sexual offences after a three day trial, as follows:

9. [9]
   He again successfully appealed against those convictions, on the ground that the prosecution failed to call evidence from material witnesses being the defendant’s wife and brother.  The convictions were set aside on 3 March 2017, and another retrial was ordered.
10. [10]
    The fourth trial was set for some time to commence on the 18 September 2017 in Cairns.
11. [11]
    In addition to these proceedings on the indictment, the defendant also appeared in the District Court at Cairns on 3 February 2014 for a trial on a different indictment.  The jury was discharged prior to verdict.
12. [12]
    The defendant has incurred legal costs commensurate with each proceeding and associated procedural matters.  He now claims to be impecunious pending the outcome of prospective appeal cost fund applications.  The September 2017 trial dates have been vacated because of the defendant’s funding and representation uncertainty.
13. [13]
    Each of the four trials required jurors empanelled from a panel of about 60 potential jurors. Before each panel, the defendant was called upon to answer the charges in the relevant indictment.  He did so in the presence of about 240 potential jurors totally.  Of those, at least 12 jurors were involved in each trial.  They heard admissions, pre-recorded evidence of the complainant, telephone evidence from two doctors, evidence from two police officers and the complainant’s mother and father.
14. [14]
    Over time the proceedings have also been publicised in the local print and television media.
15. [15]
    Against this background, the defendant applies to change the venue of the next trial from Cairns to Brisbane, or alternatively to Townsville, on the grounds of adverse publicity and the diminishment of the pool of potential jurors.

Change of Venue Application  

16. [16]
    O'Brien CJDC considered the relevant considerations for applications to change venue in R v Chardon^[1] where he referred to the leading authorities including R v Yanner.^[2]

17. [17]
    The following principles can be distilled from the authorities:

    1. The right of a defendant to a fair and unprejudicial trial is an essential safeguard of the liberty of the individual.^[3]
    2. It is universally recognised that the test to be applied is whether the risk of prejudice to a fair trial is so grave that no direction by the trial judge, however careful, could reasonably be expected to remove it.^[4]
    3. 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.^[5]
    4. The party seeking the change of venue bears the onus of showing that removal is warranted.^[6]
    5. The Court’s discretion, statutorily conferred, is unfettered.^[7] Each case will be considered on its own merits, bearing in mind that a trial should ordinarily proceed in the district of the alleged offence, and considerations will vary from case to case and may include:^[8]
       1. The cost, expense and inconvenience involved in a change of venue including disruption to court schedules and waste of court resources.
       2. Delay which might be occasioned by a change of venue.
       3. 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.
       4. The result in acceding to the application will be to move the trial from the locality in which the offence was allegedly committed.
18. [18]
    In addition to these factors, the defendant relies upon adverse publicity, and the diminishment of the pool of potential jurors due to previous exposure to proceedings.

Generally

19. [19]
    The locations that the offences allegedly occurred are in the Cairns district.
20. [20]
    All but two witnesses and the defendant reside in Cairns.  The pre-recorded evidence will be unaffected by any change of venue.  Otherwise the defendant will not oppose an application by the Crown to present evidence by audio visual link.  Such an application is a matter for the Crown and consideration in the proper exercise of judicial discretion, and it is not appropriate to pre-empt such an application.  Suffice it to say that video evidence of lay witnesses may be contraindicated if there remain significant issues of credit in the case.
21. [21]
    As for cost and expense, the defendant was self funded in the past and his current solicitor is only retained for this application.  He claims that he is impecunious pending Appeal Cost Fund application, and cannot afford travel costs for representation in any event.
22. [22]
    His solicitor deposes that: “I have made application on behalf of the application to the Appeal Costs Fund for payment of a percentage of his legal costs thrown away”.  It is further deposed that the defendant is unable to fund his further legal representation until the “applications are finalised”.
23. [23]
    However, the veracity of this deposition was properly challenged at the hearing.  Subpoenaed documents show that while the defendant’s former solicitors applied to the Appeal Costs Fund, those solicitors withdrew that application two months ago on 20 June 2017.  That means, despite the current indications to this court, there is currently no appeal cost fund application on foot.  Instead, the defendant’s current solicitor proposes to make new applications so that all the three trials and two appeals can be considered together.  And then, such applications are estimated to take a further 6 to 8 months for determination.
24. [24]
    As to travel costs for future representation, the defendant has instructed his current solicitor that “in any event, he will not be able to pay for the expense of flight, accommodation and other associated expenses of engaging his legal representatives to conduct this trial” in Cairns.
25. [25]
    This submission is hollow in the absence of any evidence of any retainer or estimate of fees, estimates of assessments Appeal Costs Fund payments, and financial records showing the defendant’s bank account balances, assets and liabilities.  The defendant’s alternative relief to have the matter heard in Townsville further erodes the weight of the submission.  In any event, since the defendant’s current legal representation is limited to this application, it is open for him to retain solicitors and counsel resident in the district of the trial, and thereby avoid the mooted travel and accommodation costs.

26. [26]
    This trial was set for some time to commence on the 18 September 2017 in Cairns.  Those dates have been vacated because of the defendant’s impecuniosity pending compensation from the appeal costs fund.  The proceeding will be reviewed on 3 October 2017 to manage its further conduct, subject to this application.  Given the state of uncertainty, it is difficult to assess whether any significant delay might be occasioned by a change of venue.
27. [27]
    In the absence of any application(s), the timing of any funding outcome is intolerably speculative.  This has a flow on effect for the defendant’s readiness for trial and likely trial dates.  The defendant has just lost the opportunity of the matter being dealt with later in the year.  It seems to me that the defendant, through his solicitors, has significantly contributed to his own delay, which in part explains his current predicament.

Publicity

28. [28]
    The defendant also relies upon adverse publicity infecting potential jurors and fair trial.
29. [29]
    The possibility that potential jurors might be aware of, and act on, pre-trial publicity  received extensive consideration (in the context of a stay application) by the High Court in R v Glennon.^[9] In that case, Mason CJ and Toohey J said:^[10]

“Likewise, the suggestion that there was a substantial risk that at least one juror would have acquired knowledge, before the verdict was given, of the respondent’s prior conviction was again a matter of mere conjecture or speculation.  The mere possibility that such knowledge may have been acquired by a juror during the trial is not a sufficient basis for concluding that the accused did not have a fair trial or that there was a miscarriage of justice.  Something more must be shown.  The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial.  The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence.  As Toohey J observed in Hinch (1987) 164 CLR at 74, in the past too little weight may have been given to the capacity of jurors to assess critically what they see and hear and their ability to reach their decisions by reference to the evidence before them.  In Murphy v The Queen, we stated ((1989) 167 CLR 94 at 99; see also Reg v Von Einem (1990) 55 SASR 199 at 211): 

“But it is misleading to think that, because a juror has heard something of the circumstances giving rise to the trial, the accused has lost the opportunity of an indifferent jury. The matter was put this way by the Ontario Court of Appeal in R v Hubbert (1975) 29 CCC (2 d) 279 at 291: 

‘In this era of rapid dissemination of news by the various media, it would be naïve to think that in a case of a crime involving considerable notoriety, it would be possible to select twelve jurors who had not heard anything about the case.  Prior information about a case, and even the holding of a tentative opinion about it, does not make partial a juror sworn to render a true verdict according to the evidence’.

To conclude otherwise is to underrate the integrity of the system of trial by jury and the effect on the jury of the instructions given by the trial judge.”

30. [30]
    In a separate judgment, Brennan J said:^[11]

“Of necessity, the law must place much reliance on the integrity and sense of duty of the jurors. The experience of the courts is that the reliance is not misplaced.  In Munday (1984) 14 A.Crim.R. 456, Street CJ repeated an unreported passage from one of his Honour’s earlier judgments: 

‘...it is relevant to note that the system of jury trial is geared to enable juries to be assisted in every possible way to put out of mind statements made outside the court, whether in the media or elsewhere. There is every reason to have confidence in the capacity of juries to do this. Judges do not have a monopoly on the ability to adjudicate fairly and impartially. Every Australian worthy of citizenship can be relied upon to discharge properly and responsibly his duty as a juror. Particularly is this so in the context of being one of a number or group of others all similarly charged with this responsible duty. I have great faith in the multiple wisdom and balance reflected in the verdict of a jury’. 

If the courts were not able to place reliance on the integrity and sense of duty of jurors, not only would notorious criminals or heinous crimes be beyond the reach of criminal justice but there would have to be a change in venue for many trials now held in circuit cities or towns where knowledge of the crime and of the alleged criminal easily acquires a wide currency outside the courtroom.  Our system of protecting jurors from external influences may not be perfect, but a trial conducted with all the safeguards that the court can provide is a trial according to law and there is no miscarriage of justice in a conviction after such a trial.”

31. [31]
    The issue of adverse pre-trial publicity was also considered by the Court of Appeal in R. v. Ferguson; ex-parte A-G (Qld).^[12] In addition to adopting the above remarks in R v Glennon,^[13] the Court held:

“[26]  … there is an abundance of authoritative statements that even where a trial is accompanied by adverse publicity, even adverse publicity concerning the accused’s previous criminal convictions, the court should be slow to conclude that the resultant risk of unfairness to the accused is intractable because the jury is unlikely to be amenable to the directions of the trial judge to ignore the adverse publicity and render their verdict based on the evidence.

…

[39]  … These passages emphasise the need for circumspection on the part of a court in acting upon a prediction of the inability of the jury to render a verdict fairly in accordance with the directions of the trial judge.  It is necessary to bear in mind that, pursuant to s 50 of the Jury Act, the members of a jury swear “to give a true verdict, according to the evidence, on the issues to be tried …”.  The passages which we have set out above also emphasise that the system of trial by jury proceeds on the assumption that jurors can be trusted to be true to their oath.

[40]  The jury trial has not been regarded and should not be regarded, as an exotic and delicate contrivance, the integrity of which cannot survive jurors' knowledge of matters adverse to an accused gained other than through admissible evidence.

…

[43]  Jury deliberations take place in an environment peculiarly conducive to the unbiased assessment of evidence with a view to determining guilt or innocence.  An empanelled juror does not commence his or her role as a person undertaking a novel or foreign role.  Jurors are aware consciously or subconsciously of the long tradition in this country of criminal trials in which 12 impartial men and women are the deciders of fact, of the unquestioned integrity of the process and its importance to society's fabric.  The solemnity and social significance of the jurors' role is reinforced by the formality of the trial and the court room setting.  As we have noted, jurors are sworn or make an affirmation to give a true verdict according to the evidence.  The trial judge's opening remarks are calculated to reinforce instructions already received by the jury panel.

[44]  And, of course, the trial judge's instructions should be fashioned in light of the circumstances of the case with a view to assisting the jury to give a verdict uninfluenced by any irrelevant or improper considerations.  Where there has been extensive pre-trial publicity, it is customary for the trial judge to explain the obvious points of distinction between media reports and the evidence presented in criminal cases.  Here, the perceived problem lies not so much with any alleged inaccuracy in reporting (although there may well have been some) but more with the revelation of prior convictions, the details of those convictions, the respondent's alleged potential to re-offend and the general opprobrium heaped on the respondent because of his convictions.”

32. [32]
    The defendant has not produced any articles relied upon as being publicised in the local print and television media.  Instead, his representative accepts the articles produced by the Crown. I have no evidence of any television publicity.
33. [33]
    On my reading, the printed articles provide benign reports of the defendant’s past proceedings, amongst articles about other unrelated and topical cases.   The articles are appropriately limited since the case involves a child.  They make no references that either directly or indirectly identify the defendant. 
34. [34]
    Therefore, I do not accept that the defendant’s contention that such publicity is so prejudicial that there exists an appropriate level of risk to the defendant having a fair trial in Cairns. Further, a jury properly directed by the trial Judge will be expected to properly decide the facts according to their duty.  That is, decide the facts and reach a true verdict according to their oath or affirmation according to the evidence adduced in the courtroom
35. [35]
    Therefore, the defendant’s reliance upon publicity will fail.

Diminishment of the Jury Pool

36. [36]
    The defendant further asserts that the pool of potential jurors in the district has been diminished because of the number of jurors who have been exposed to previous arraignments and trials.
37. [37]
    It is argued that asserts that the potential jury pool drawn from the population of Cairns may be corrupted to an extent whereby a direction from the trial judge could not cure that difficulty.
38. [38]
    During the course of the hearing, the defendant’s solicitor agreed that the current Cairns population is about 225,000, of which at least 100,000 people would be eligible to serve as a juror.  When comparing the number of empanelled and other jurors who were exposed to past proceedings, with number of eligible future jurors, it is difficult to see how the potential jury pool could be ‘corrupted’ in a way that could not be cured by direction.  In my view the chances of a new juror being a past empaneled juror, or a juror who was present but not empanelled, are very low.
39. [39]
    Further there are appropriate safeguard in the administration jury panels for of criminal trials.
40. [40]
    The Registrar, or other authorised court officer, will in the exercise or the sheriff’s functions assemble future panels of jurors with people not previously exposed to the defendant’s past proceedings.  This is not unusual for retrials.  Even if some concern remained, there are procedures available to vet potential jurors pursuant to ss 43, 47, 48 and 69A of the Jury Act 1995 (Qld).^[14]
41. [41]
    Therefore, I do not accept the defendant’s argument on this point.

Conclusion

42. [42]
    I am not persuaded that there is a risk of prejudice to a fair trial, or that any such risk is so grave that no direction by the trial judge, however careful, could reasonably be expected to remove it.  Therefore the application to change the trial venue must fail.
43. [43]
    For these reasons, I will order that the application to change the venue is dismissed, and that the proceeding will be further reviewed on 3 October 2017 for case management.

Judge Dean P Morzone QC