District Court New South Wales Medium Neutral Citation: R v Hayne [2022] NSWDC 124 Hearing dates: 21 March 2022 Date of orders: 21 March 2022 Decision date: 21 March 2022 Jurisdiction: Criminal Before: Bennett SC DCJ Decision: Application to transfer the hearing of the trial to Newcastle District Court is refused Catchwords: CRIMINAL PROCEDURE — Trial — Change of venue Legislation Cited: Criminal Procedure Act 1986 Court Suppression and Non-Publication Orders Act 2010 Category: Principal judgment Parties: Regina (Crown) Jarryd Lee Hayne (Accused) Representation: Stephanie Lind (Crown Prosecutor) Angela Cook (counsel for the accused on the application) Director of Public Prosecutions (NSW) (Crown) File Number(s): 2018/00355835 Publication restriction: No publication of the part of this judgement that deals with the conduct of those purporting to be supporters of the accused REVISED EX TEMPORE JudgEment Introduction 1. There is before me a notice of motion in the proceedings between the Crown and Jarryd Lee Hayne asking for orders that the proceedings be transferred to the District Court of New South Wales at Newcastle on the grounds that in accordance with Part 53 Rule 7(2)(a) District Court Rules 1973, the venue for the hearing of the proceedings in the case of a person committed for trial to the District Court sitting at a proclaimed place, should be that proclaimed place. The History 1. The material in support of this application includes an affidavit by Ramy Qutami sworn on 4 March 2022 providing a history of the proceedings to which I shall refer for an understanding of how this matter has unfolded to its present stage. 2. The accused was committed for trial on or about 9 April 2020 to the District Court in Newcastle. His first trial was listed to commence on 23 November 2021 but the jury were unable to reach a verdict. As a result of the COVID-19 limitations there was a delay and the Newcastle District Court could not hear a second trial until late 2021 or early 2022. Subsequently, the parties agreed to a transfer of the proceedings to the District Court in Sydney for the trial to commence there on 8 March 2021. 3. The second trial resulted in a conviction and subsequent sentence in Newcastle where the trial judge, Judge Syme, was at that point sitting for a limited period on circuit. It is not unusual for judges who are required to leave their place where they normally sit to work on circuit to take matters with them if it means they can be resolved expeditiously by doing so. That appears to be what happened here. 4. The accused successfully appealed against the conviction or convictions to the Court of Criminal Appeal. The appeal was heard on 9 November 2021 and judgement handed down on 14 February 2022 quashing the convictions and ordering a new trial. The order of the Court of Criminal Appeal was to remit the matter to the District Court without specifying the venue to which it should be sent. The matter was listed in the Sydney District Court on 18 February 2022 which is not surprising in the circumstances when the trial was conducted in this jurisdiction. The Applicant's Contention 1. The affidavit puts forth the proposition that the offences the subject of the trial arose in Newcastle. It is not said that there is any matter that would displace the general rule of practice that a trial will proceed in the district in which the offence is alleged to have been committed; the affidavit deals with inquiries made on behalf of the deponent by a paralegal from her office outlining information gathered including that nine witnesses, one of them the complainant, are resident in the Newcastle area. If the trial remains in Sydney, it will be necessary to have those witnesses who are required to give evidence to travel to Sydney to be able to do so. 2. The complainant's evidence was recorded and it may or may not be the case that she will be required to amplify or qualify the assertions available to the Court through that medium. The answer to that is simply not known at this point. 3. A further affidavit was provided on 18 March 2022 by Sofia Musumeci, a paralegal employed in the firm representing the accused. This is offered in support of the notice of motion with details of inquiries made of the registry and the sheriff's office in Newcastle, which ultimately did not provide satisfactory or comprehensive information, concluding with a representation by the person to whom the deponent spoke asserting that no details could be given about security policies, and that the complainant's use of the main entrance to the Court would be required unless directed otherwise, or they make an application in writing to provide the foundation for an operational plan that would allow the use of another entrance. 4. I am familiar with the courthouse in Newcastle. It is used by the Supreme Court, District Court, and the Local Court. I know there is one main entrance into the building from the street, there is a side entrance into the building used by the staff and members of the Court. I am not sure whether the jurors use that side entrance. The only other entrance of which I am aware is through the basement carpark which is a secure point of entry into the building. The Crown's Contention 1. The Crown resists the application and has filed affidavits including one from Giles Finucane. This notes that there was an application to change venue pursuant to s 30 Criminal Procedure Act 1986 on 16 December 2020 made by Ms Musgrave, the lawyer then representing the accused who has since been appointed as a judge of this Court. A notice of motion had been filed together with an affidavit in support. The application was not opposed by the Crown and Judge Gartlemann SC made orders for the venue to be changed from Newcastle to Sydney. 2. The complainant wishes that the matter remains in Sydney due to the publicity in what is a relatively small community in Newcastle, an observation with which I agree. I am well familiar with Newcastle and its environs for various reasons. She also spoke of concern about how she was treated outside the Newcastle Court complex after sentence proceedings in May 2021. 3. I pause to note that nothing that occurred on that occasion to which I shall come can be attributed to the accused. He is a well-known person by reason of the profession he follows and he clearly has supporters in the community, some of whom could not control their behaviour on the day in question within the Court building. 4. The Crown material includes the notice of motion filed by Ms Musgrave and an affidavit sworn by her. There is also an affidavit sworn by the officer-in-charge of the investigation, a Detective Senior Constable John Turco. This was sworn on 10 March 2022. This provides details of the witnesses who may be required for the trial and their availability and where they are presently residing; he describes events on 6 March 2021 when he attended the Newcastle District Court for the sentencing of the accused. Other police officers present included a detective inspector, a detective sergeant, a detective senior constable as well as the complainant and her mother. 5. There were arrangements made to provide security and support for the complainant and her mother. They attended the courthouse, made their way toward the courtroom allocated for the matter. When they exited the elevator at the level where the courtroom was located, there were many people outside the courtroom, approximately 30 in number, in support of the accused. There was music playing in the crowd, the crowd were talking among themselves, they were standing in front of the entry to the courtroom. The police present, including the deponent, attempted to usher the victim to a room away from the crowd where they remained until the courtroom opened. Several sheriff's officers attended the location and cleared a space in the crowd for the complainant and the police to enter the courtroom. The complainant was forced to walk through the supporters as she entered the room. She expressed her fear and felt intimidated by the number of people present and proximate to her. The sheriff's officers had to remove several of the supporters from the courtroom to make sufficient space to accommodate the police, the complainant, and her mother inside the courtroom. 6. During the sentencing the police officer was approached by sheriff's officers to advise that immediately following the sentencing they would be ushered into the jury room to avoid any confrontation with the accused's supporters. They were hoping for the removal of the complainant immediately following the decision, to de-escalate the situation. There was something of an informal risk assessment made apparently arising from the concerns held by the sheriff's officers for the safety of the complainant. 7. The sentencing judge, Judge Syme, handed down her sentence and left the bench. The sheriff's officers immediately ushered the complainant, her family, and the police including the deponent into the nearby jury room. 8. The affidavit at para [19] represents that a number of the supporters stood up to stare towards the complainant. The deponent heard some of the supporters speaking in an aggressive manner, apparently directed toward the complainant. He could not hear what was said. They waited in the jury room for half an hour. They attempted to arrange an alternative exit from the building but were advised that there was no other entry or exit points available to the complainant and she would be required to exit through the main courthouse entrance. 9. Upon leaving the jury room, they made their way through the courthouse toward the front of the complex. Once at the front of the complex, the deponent saw about 30 supporters of the accused outside the Court. There was a large contingent of media who had also gathered. The complainant was taken out through the side door at the front of the complex. Several of the supporters turned to stare towards the police and the complainant and her mother. There were several of them yelling and pointing in their direction. What was said could not be heard. The complainant and her mother were moved as quickly as possible away from the location and once that occurred, it appears there were physical altercations between the media and the accused's supporters requiring the police and the sheriff's officers to intervene. 10. There was an investigation into those matters. As a result one male was identified and issued with a criminal infringement notice for spitting when the complainant was existing the courthouse. The inappropriate behaviour attracted wide publicity. 11. When the sentencing was under way, it is said that it was difficult to shield the complainant from the crowd of supporters. She complained of feeling threatened and intimidated and it is said that there were concerns for her welfare. Consideration 1. I repeat, there is no suggestion or evidence that could attribute any of that appalling behaviour to the accused, but it is a matter that informs the decision that I must make upon this application whether to remove the proceedings from this Court and send them to Newcastle. 2. The facilities in this complex are more robust in my perception of matters than those available in Newcastle. There are access points into this complex whereby the complainant and prosecution witnesses can be brought in without the risk of running a gauntlet that appears to have occurred on the last occasion the matter was in the District Court at Newcastle. 3. The starting point in this matter is said to be that Part 53 Rule 7 requires the trial to be conducted at Newcastle. The submissions provided on behalf of the accused and by the Crown summarise the statements of the principles available from the authorities touching upon this question. They are not controversial. Ultimately the decision is one of balance. 4. A trial should be fair to all the parties involved in it. The practice of requiring trials to be conducted in the venue where events occurred giving rise to the trial is a rule of practice, not one of law; one needs to bring to bear the various considerations that inform the decision whether there should be a change of venue if that is what this application is. 5. It is said on behalf of the accused that it is not strictly an application to change venue for the venue was already set by the decision Judge Syme made to deal with the sentence proceedings in the District Court of Newcastle, and that it was by way of the omission on the part of the Court of Criminal Appeal to specify where the venue to which the trial should be remitted that has led to the present application. 6. If this is a change of venue application, s 30 Criminal Procedure Act 1986 is engaged. It provides that: "In any criminal proceedings, if it appears 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 court may change the venue, and direct the trial to be held in such other district, or at such other place, as the court thinks fit, and may for that purpose make all such orders as justice appears to require." 1. One of the matters that has been advanced is the opportunity to have the trial listed as early as practicable. The opportunity to have the trial commence in this Court is challenged by the fact that senior counsel who is to appear for the accused is not available in November. There is some space available in November but not a great deal. However, on 13 February 2023 and following there is ample space for this trial to be listed and to commence and continue to finality. 2. The information gleaned by those representing the accused is that the trial in Newcastle is not likely to be reached until about that time unless after a "super call over" yet to be conducted there is a resolution of matters pending for trial leaving available time to commence this matter. 3. The accused I am told simply wants his trial to be conducted in Newcastle. His reasons are not further qualified or explained. The Crown opposes the application and submits that the matter should remain in this jurisdiction. I agree with that submission because Mr Hayne is well known, he will attract media interest, he is not to be criticised for having a network of support including people who might wish to come along and be present as the proceedings unfold, he is entitled to have that support subject to the restrictions that are presently engaged in our courts because of the COVID-19 virus and the limitations that are in place to protect us from the risk of infection through contact, and subject to arrangements to ensure security. 4. The facilities in this Court I am aware are far more robust than those available in Newcastle. It is said on behalf of the accused that there could be in place an operational plan that would involve in turn a risk assessment to determine what facilities might be required to ensure that the trial can continue unabated without the risk of intimidation or harassment of the complainant should she be required to attend the Court to add to or to detract from evidence that she has given previously, which has been recorded and which will be played to the jury as I anticipate matters. Decision 1. On balance, I am satisfied that the trial should remain in Sydney. I do not believe it is appropriate to remove the trial to Newcastle. Accordingly, the application that has been made on behalf of the accused is refused. 2. Pursuant to s 8(1)(a) Court Suppression and Non-Publication Orders Act 2010 the portion of the judgement dealing with the conduct of those purporting to support the accused at the proceedings for the determination of sentence is not to be published. 3. This judgement is to be published on Caselaw but restricted until the conclusion of the trial. 4. I note that publication of the judgement of the Court of Criminal Appeal is restricted. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 May 2023