Supreme Court New South Wales Medium Neutral Citation: R v Stephen [2017] NSWSC 1740 Hearing dates: 4 December 2017 Decision date: 13 December 2017 Jurisdiction: Common Law - Criminal Before: Button J Decision: (1) The notice of motion of the applicant of 29 November 2017 is dismissed. (2) The trial date of Monday 5 February 2018 at Broken Hill is confirmed, with the jury panel to be called not before Wednesday 7 February 2018. (3) The listing of the matter for a further directions hearing before me at 10 AM on Wednesday 24 January 2018 at Sydney is confirmed. (4) The bail of the accused is continued until that date, on which occasion she must be present at the Supreme Court at Sydney. Catchwords: CRIMINAL LAW – procedure – application for change of venue from regional centre to Sydney– whether jury selection likely to fail to produce impartial jury – discussion of other relevant factors – trial date and location confirmed Legislation Cited: Criminal Procedure Act 1986 (NSW), s 30 Cases Cited: Director of Public Prosecutions v Bennett [2004] VSC 148 R v Cattell [1968] 1 NSWR 156 R v Turnbull (No. 1) [2016] NSWSC 189 R v Vandergulik [2008] VSC 17 Category: Procedural and other rulings Parties: Regina Jonda Rhani Stephen Representation: Counsel: L Shaw (Crown) P Dwyer (Accused) Solicitors: Director of Public Prosecutions (Crown) PJ Donnellan & Co (Accused) File Number(s): 2017/00099898 Publication restriction: Nil Introduction 1. By way of a notice of motion of 29 November 2017, Ms Jonda Rhani Stephen (the accused) applies to have her trial on a count of murder transferred from the Supreme Court sitting at Broken Hill to Sydney. The application is opposed by the Crown. I have had the benefit of very helpful written and oral submissions from both counsel. Background 1. The background of the matter may be shortly stated in generally chronological form. 2. The offence allegedly took place, on 5 October 2015 in Broken Hill, in the course of an argument between the accused and Mr Christopher David Tiffin (the deceased). The Crown case is that the accused and the deceased had been in a romantic relationship for about a year before that. The allegation is that the accused stabbed the deceased once to the chest, as a result of which he died quite quickly. 3. Defence counsel made it clear at a directions hearing that took place at the same time as the hearing of the motion that there could be an issue about the voluntariness of the act causing death. There will also be a dispute, I was told, about whether the Crown can prove that, at the time of the stabbing, the accused intended to cause death or grievous bodily harm to the deceased. 4. My understanding, however, is that perhaps the most significant question to be determined by the jury will be whether the Crown can prove beyond reasonable doubt that the accused was not acting in self-defence. In that regard, it seems that there will be evidence placed before the jury, without objection, not only that the deceased had been violent to the accused very shortly before she stabbed him, but also that the infliction of violence by the deceased upon the accused was a long-standing feature of their relationship. 5. The procedural history of the matter is as follows. 6. On 5 October 2015, the accused was arrested. 7. It seems that, in late January 2016, the accused was granted bail by this Court, and she has been on bail ever since. 8. On 24 January 2017, a committal hearing was conducted in the Local Court at Broken Hill. The learned magistrate declined to commit the accused on a count of murder, but committed her to the District Court on a count of manslaughter. 9. On 7 April 2017, the New South Wales Director of Public Prosecutions filed an ex officio indictment in the Supreme Court containing a count of murder. 10. On 5 May 2017, the accused was arraigned on that count before Johnson J in the arraignments list of this Court at Queens Square. At that time, she was represented by counsel, although not counsel who has appeared for her substantively. The accused pleaded not guilty to the count of murder. 11. Counsel then appearing foreshadowed an application to have the matter heard in Sydney as opposed to Broken Hill, and outlined to his Honour five separate bases upon which such an order would be sought. 12. In the event, Johnson J fixed the matter for trial on 5 February 2018 at Broken Hill, with an estimate of three weeks. Orders were made for the filing and serving of documents in support of the foreshadowed application for a change of venue. 13. The matter came before Johnson J again on 2 June 2017. A discussion took place about the logistics of the hearing of the motion for a change of venue, and the date for its hearing was fixed as 8 September 2017. 14. Although the matter was formally stood over to 4 August 2017, it seems that nothing occurred on that date. 15. On 1 September 2017, the matter came before Johnson J yet again. On that occasion, the accused was represented, though, again, not by her primary counsel. 16. The advocate for the accused informed his Honour that the application for change of venue was "no longer pressed". It does not seem to be disputed (although it is not recorded in the transcript) that in the background to the abandonment of the application was an agreement between the parties that each of them should have six peremptory challenges on empanelment. 17. The hearing of the application was vacated, the trial date and place was confirmed, and the parties were informed that I would be the trial judge. 18. On 17 November 2017, the matter came before me for the usual pre-trial directions hearing. The accused was represented by her principal solicitor, despite my readiness to adjourn the matter so that her primary counsel could attend later that afternoon. 19. At the start of that hearing, the solicitor for the accused raised a concern about the venue; in particular, whether the trial would logistically be able to proceed. After discussion of a number of aspects, including the number of members of the jury panel who would be called for the trial, her concern about the venue seemed to recede. It is quite true, however, that I left open the making of a further application, and requested that it be done formally; I interpolate that there is no question but that the defence legal team has complied with my request. 20. Thereafter, the necessary documents were filed, and the motion was heard before me on 4 December 2017. At the hearing, the change of venue was opposed by the Crown Prosecutor, who is the barrister who will appear at trial. 21. Due to the intervening long vacation, I indicated to the parties my belief that early resolution of the question was imperative; this judgment may be rather succinct as a result. Submissions of the accused 1. Counsel for the accused relied upon s 30 of the Criminal Procedure Act 1986 (NSW) as the statutory foundation for the application. It is as follows: 30 Change of venue 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. She accepted that the statute reposes in me a broad discretion, which inevitably calls for an evaluative judgment of a number of factors. Those that she particularly relied upon are as follows. 2. First, the accused now lives on the Central Coast of New South Wales. Her solicitors are based there, and defence counsel is based in Sydney. Her defence of the count of murder is privately funded by a relative of the accused, who has accessed her superannuation for that purpose. The trial has been given an estimate of three weeks. 3. Inevitably, it was submitted, defending the proceedings will be far more expensive if they take place in Broken Hill than in Sydney, bearing in mind the need for significant funds to be expended on transport, accommodation, meals, and so forth. 4. Secondly, in light of the natural publicity (not only in the media, but also in the general community) that such an event has attracted in a comparatively small town like Broken Hill, it may be difficult for an impartial jury to be empanelled. Even if that were to occur, one cannot be sure that the trial would proceed to verdict. 5. That concern is exacerbated by the fact that this particular trial, focusing as it will on the relationship between the accused and the deceased, and in particular their conduct towards each other over an extended period, may lead to many jurors needing to be excused, on the basis of their prior knowledge of the two individuals. 6. Those considerations are not just a matter of the right of the accused to a fair trial, it was submitted. They are also a matter of yet further expense if the trial commences, is aborted, and needs to recommence at a later stage in another location (such as Dubbo or Sydney). 7. Thirdly, the brother of the accused would very much like to attend the trial in order to support his sister. He suffers from a serious medical condition, however, that would make it impossible for him to be exposed to the heat of Broken Hill in February. 8. Fourthly, the accused is suffering from serious psychological conditions, for which she is receiving treatment on the Central Coast. If the trial were to take place in Sydney, that treatment could continue uninterrupted; if the trial were to take place in Broken Hill, that would be impossible. 9. Fifthly, in his written outline of topics to be discussed at the first directions hearing before me, the Crown Prosecutor raised a concern as to whether a jury could be empanelled in Broken Hill. Counsel for the accused reiterated that concern. 10. Sixthly, an audio-visual link (AVL) could be used for many lay witnesses whose evidence is not in dispute, thereby reducing the significance of the balance of convenience in conducting the trial in Broken Hill. And some witnesses who are based in Broken Hill would be content to travel to Sydney to meet the convenience of the accused. (I understood it to be accepted by defence counsel that a majority of the civilian and police witnesses are closer to Far Western New South Wales than Sydney.) 11. Seventhly, there will be a number of expert witnesses called, the majority of whom are based in Sydney. Although an AVL could be used for them to give evidence in Broken Hill, it is notorious to those who practice in courts that such links do not always work perfectly. 12. Eighthly, no suggestion has been made by the Crown Prosecutor that he would be seeking to conduct a view of the scene of the alleged offence; in any event, my own assessment would be that such a step would not be necessary in light of the issues in the trial. 13. In short, defence counsel submitted that the combination of all of the above factors calls for the venue of the trial to be changed, and for a date to be sought for the trial to proceed in Sydney. Determination 1. I am firmly of the opinion that this trial for murder, alleged to have been committed at Broken Hill, and set down to commence in less than two months at Broken Hill, should remain at Broken Hill. 2. All of the factors relied upon by counsel for the accused have merit. But they are significantly outweighed by the following countervailing factors. 3. First, despite the concerns of counsel for the accused, I am confident that a trial will be perfectly logistically possible at Broken Hill. In that regard, I have requested that two panels of 100 persons each be called for the commencement of the trial. Making due allowance for the fact that a number of panel members will not attend, a number will be excused by the Sheriff, a number will be excused by me, and the parties have agreed on more than the usual number of challenges, I retain a guarded confidence that we will be able to empanel a jury of 12 on that day. As against the possibility that we will not, I have arranged for further panels to be available the following week. 4. Of course, I cannot absolutely guarantee that the trial will be able run to verdict at Broken Hill; there are countless events that could forestall that. But nor can one absolutely guarantee that a trial will culminate in a verdict in Sydney, or anywhere else. And mere acceptance of the possibility of something going wrong is not a reason for throwing up one's hands, and giving up on the idea of a trial in the locality where the offence is alleged to have occurred. 5. Secondly, it is regrettable if the psychological treatment of the accused is disrupted by her attendance at the trial. But it is hardly unusual that an accused person experiences disruption in his or her life, including with regard to medical treatment, by way of being the focus of a lengthy trial. Separately, I would have thought that it is possible that some alternative arrangement – whether it be a referral for counselling in Broken Hill, or contact with her psychologist by telephone – could be put in place for the accused for the duration of the trial. 6. Thirdly, I accept that the extra financial burden upon the accused and her family is a relevant factor. But, to my mind, it is well outweighed by countervailing considerations. 7. Fourthly, again, it is regrettable if the brother of the accused will be unable to support her during the trial. Again, however, it is not unusual for relatives of an accused person – or indeed a deceased person – to find it impossible for geographical or other reasons to be in attendance at a murder trial. 8. Fifthly, it is true that the affidavit evidence placed before me shows that there has been a degree of publicity about the matter in Broken Hill, entirely as one would expect: see R v Vandergulik [2008] VSC 17. But it has hardly been extensive or detailed. Some of it was seemingly generated by the agent of the solicitors for the accused, for whatever reason. And much of it, on careful reading, is actually favourable to the accused and her contentions. 9. Sixthly, as I have indicated to each counsel, before the jury is empanelled in Broken Hill I will seek their assistance as to precisely what I should say to members of the panel in order to ensure its impartiality, bearing in mind the place of residence of the accused and the deceased, the publicity regarding the matter, and the fact that self-defence will be an important issue in this trial. As for the latter, I accept that it will call for an assessment of a relationship, and the two personalities within it. That assessment will mean that the question of a juror not being clouded by foreknowledge or preconception about the accused and the deceased will require special emphasis by me. 10. Again, I am confident that, with the assistance of counsel at the commencement of and during the trial, not only will a jury be able to be empanelled, but it will be an impartial one. 11. In other words, I am quietly confident not only that I can provide the accused with a fair trial in Broken Hill, but also that its fairness would be accepted by all reasonable persons: R v Cattell [1968] 1 NSWR 156 at 159. 12. Seventhly, it is true that the giving of evidence by AVL by uncontested or expert witnesses has the potential to reduce or nullify questions of the "balance of convenience". Still and all, my understanding is that, even despite the good work already done by each counsel to minimise the number of prosecution witnesses who will need to be called, a significant majority of witnesses live in and around Broken Hill; certainly more than near any other location. 13. Eighthly, the perhaps unfortunate procedural history – whereby the application was foreshadowed, explicitly abandoned, and then reactivated quite close to the date of trial – argues against the order being made now, albeit not strongly. In particular, if I granted the application now, I would not have any confidence that the trial could be accommodated early next year in Sydney; to the contrary, without having made explicit enquiries, I think it quite possible that the trial could be delayed by many more months. Furthermore, due to the explicit abandonment of the application, much has already been put in place, not least the calling of hundreds of members of the jury panel. 14. Ninthly, the concerns expressed by the Crown Prosecutor are, to my mind, neither here nor there: they were merely matters to which he invited my attention, and have no intrinsic weight above and beyond the logistical aspects to which I have already referred. 15. Tenthly and to my mind most importantly, no authority is required for the proposition that trial by jury is the centrepiece of the democratic involvement of ordinary citizens in the administration of criminal justice. But a related consideration is that, absent sound reasons, an allegation of a serious crime said to have been committed in a regional centre should not be "whisked away" from that centre, to be determined in a far-off metropolis: Director of Public Prosecutions (Vic) v Bennett [2004] VSC 148 at [6]. 16. That proposition applies, I think, with special force in a nation like Australia, which features a reasonably large capital city in each State, surrounded by smaller regional centres, some of them many hundreds of kilometres from the capital. And it perhaps applies with even greater force when the regional centre is as far from the metropolis (geographically and perhaps figuratively) as Broken Hill is from Sydney. 17. In other words, I consider that a very important part of the maintenance of confidence in the administration of justice in a State like New South Wales is ensuring that people who live in country towns feel that they play their proper part in that process as jurors, just as their fellow citizens in Sydney do. 18. In short, in determining this question I do not impose some rigid legal test of "absolute necessity" upon the accused; I think that such a test would be too high. I do approach the question on the basis that the undoubted starting point is that a murder alleged to have been committed in a regional centre should be resolved by a trial by jury in that centre, and that it is incumbent on an applicant for change of venue to show sound reasons why that should not be the case. 19. Of course, there are exceptions to the general rule, as the recent example of the successful Crown application in R v Turnbull (No. 1) [2016] NSWSC 189 shows. Here, however, whilst all of the factors to which defence counsel pointed have force, I am not persuaded that the general rule should be overridden. Conclusion 1. It follows that I shall dismiss the notice of motion and confirm the trial date. 2. I shall also make some ancillary orders in order to ensure that the trial commences promptly and runs as smoothly as possible; they have been the subject of separate discussion with counsel, are not the subject of controversy, and the reasons for them do not require elaboration now. Orders 1. I make the following orders: (1) The notice of motion of the applicant of 29 November 2017 is dismissed. (2) The trial date of Monday 5 February 2018 at Broken Hill is confirmed, with the jury panel to be called not before Wednesday 7 February 2018. (3) The listing of the matter for a further directions hearing before me at 10 AM on Wednesday 24 January 2018 at Sydney is confirmed. (4) The bail of the accused is continued until that date, on which occasion she must be present at the Supreme Court at Sydney. ********** 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: 27 February 2018