Sometimes, clients find that charges against them have been filed in a court location which is inconvenient to them or otherwise unsuitable.
For example, an alleged offence is said to have occurred in Bunbury but the client has since moved to Perth, and the police charge them in the Bunbury courthouse. This would require them to travel to and from Bunbury for each court appearance until their case is finalized.
Another example is where charges are preferred in a regional location, but it would be unsafe or prohibitively expensive for an accused person to return to the area for their trial. This can often occur in lengthy District or Supreme Court trials, which require an accused person to both pay for their flights to the regional town, and also their own accomodation and incidental travel costs.
It is possible for an accused to apply to change the venue of their case. The procedure is the same whether the charge is one that is being dealt with in the Magistrates Court, or the District or Supreme Courts.
Starting point: the prosecution choose the venue
The starting point is that in any case, the prosecution can lodge charges in any court that they choose, regional or otherwise. So the prosecution can file an indictment specifying it is to be heard in the Kalgoorlie District Court, even if an accused was originally committed to the Perth District Court.
It is entirely up to the prosecution which court it wants an accused’s charges to be heard in.
This general principle is subject to one exception, which is the right of an accused person to apply to change the venue of their case.
Application to change the venue of a case by an accused
Whilst the prosecution gets to choose the venue, an accused may apply to the court to change the venue. An accused can request their case be heard at a different location in the State, whether or not there is actually a registry of the court there, or any actual courtroom facilities.
The only requirement to change your venue is there must be “good reason to do so”. What is a “good reason” is not defined, and is left open-ended. What is a “good reason” will depend upon the particular facts and circumstances of a given case.
“Good reason” to change the venue
Some examples of a “good reason” to change the venue might be:
- The accused has moved a significant distance from the location the State has chosen to hear the case in, and it would be prohibitively expensive for an accused to return to the location chosen by the State. This could also be argued where numerous defence witnesses, rather than the accused, are in a different location as well;
- The accused has fears for their safety if they return to the location the case is currently listed in. This can be a concern where a case is to be heard in, for example, a small country town and there are many people hostile to an accused in the location. It might be argued an accused’s safety simply cannot be guaranteed and the risk to their safety is so significant that the venue must be changed; &
- The accused is concerned they will not receive a fair trial in the location the case is listed in. This could be due to, for example, excessive adverse media coverage in a small country town. It could be argued that any member of the jury will have seen the media coverage and will not be able to bring an impartial mind to the case.
In a recent case involving a police officer charged with murder, the State indicted in Perth Supreme Court, even though the incident occurred in Geraldton. This was because of fears that the State would not receive a fair trial if the matter was heard in Geraldton. An application to change the venue to Geraldton, on the basis the accused resided there as did most of the prosecution witnesses, was dismissed.
Conclusion – change of venue
The prosecution unfortunately has wide powers to choose which court location they charge you in. This can be in a location which you no longer reside in, or which is otherwise undesirable for any number of reasons.
If the court location in your case is unsuitable to you, you must apply to the court to change the venue, and must have a good reason to do so. If you require expert advice about the prospects of changing the venue in your case, or otherwise required a skilled change of venue application, don’t hesitate to contact James Jackson Criminal Defence today.