Citation: Attwater v R [2017] NSWSC 327
Court: Supreme Court of New South Wales
Date: 31 March 2017
Judge(s): Latham J
Background
The accused was charged with aggravated sexual assault and manslaughter arising from the death of a woman at Iluka Beach in northern New South Wales in January 2011. A co-accused faced charges of aggravated sexual assault and being an accessory after the fact to manslaughter. The matter had a lengthy and publicly prominent history, including two earlier refusals by the Director of Public Prosecutions to prosecute, a coronial inquest, and national television coverage on the ABC's "Four Corners" program in May 2016 before charges were ultimately laid.
The trial was listed to commence at Coffs Harbour on 24 July 2017 for a period of five to six weeks. The accused applied to vacate that venue and have the trial moved to Sydney. The Crown opposed the application.
The accused advanced two grounds: first, that significant prejudicial publicity in the Coffs Harbour region and on the north coast of New South Wales meant a fair and unprejudiced trial could not be had there; and second, that a change of venue was expedient due to a risk of personal harm to him in that region, with better security available in Sydney.
Legal Issues
- Whether the accused could not be afforded a fair trial at Coffs Harbour due to the nature and volume of prejudicial publicity in that region
- Whether it was expedient to change the venue to Sydney, having regard to the risk of personal harm to the accused and the comparative security arrangements available in each location
- Whether any change of venue would cause unnecessary delay
Decision
Prejudicial publicity: Latham J found that while there had been substantial media coverage of the case, a court cannot presume that exposure to publicity automatically translates into an inability to empanel an impartial jury. Her Honour noted that the bulk of the material relied upon was accessible online from any location in Australia, meaning that a change of venue would not in itself remedy the asserted risk of unfairness. The court observed that in many notorious cases in New South Wales, juries have demonstrated a consistent capacity to follow judicial directions, maintain an open mind, and apply the presumption of innocence.
Her Honour examined the Facebook post that had circulated before the Grafton Local Court appearance in August 2016 and the crowd hostility directed at the accused on that occasion. While Latham J accepted that those events were serious and distressing, she found they did not establish that a jury drawn from the Coffs Harbour community would be unable to try the accused fairly. Strong and repeated judicial directions on the need to maintain an open mind were found capable of addressing residual prejudice from prior publicity.
Expediency and security: On the security ground, the court accepted that the accused's anonymity would be easier to maintain in a large metropolitan area. However, this factor was outweighed by countervailing considerations. Moving the trial to Sydney would impose significant cost and inconvenience on 21 Crown witnesses who resided on the north coast, including close relatives of the deceased. A foreshadowed application for a view of the crime scene would also become impractical if the trial moved to Sydney. The court found that the security concerns at Coffs Harbour were capable of being addressed by the available facilities there, together with appropriate directions from the trial judge.
Delay: Latham J found that a change of venue would in all likelihood require the vacation of the July 2017 trial date, with the next available date in Sydney potentially being as late as October 2017. That further delay was described as unacceptable, given that it was in the interests of the accused, the co-accused, and the broader community that the proceedings be brought to finality as quickly as possible.
Orders Made
No orders were made in this decision. The application for a change of venue was dismissed.
Key Takeaways
- Latham J confirmed that exposure to prejudicial publicity does not automatically establish an inability to empanel an impartial jury; the court must assess whether a fair trial is actually impossible, not merely difficult.
- Where the bulk of prejudicial material is available online nationally, a change of venue will not necessarily remedy the asserted unfairness and may be refused on that basis alone.
- A real risk of personal harm to an accused can be a legitimate factor in a change of venue application, but it must be weighed against the inconvenience to witnesses, the practicality of conducting proceedings, and whether local security arrangements can adequately address the risk.
- Unnecessary delay in bringing proceedings to trial is a distinct and weighty consideration weighing against a change of venue, particularly where the proposed alternative venue would result in loss of an available trial date.
- Under s 30 of the Criminal Procedure Act 1986 (NSW) and s 19(2) of the Jury Act 1977 (NSW), the threshold for establishing that a fair trial cannot be had at the listed venue remains high, and strong judicial directions to the jury are treated as a significant safeguard.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 30
- Jury Act 1977 (NSW), s 19(2)
- Coroners Act 2009 (NSW), s 78
Cases:
- DPP (Vic) v Bennett (2004) 10 VR 355
- R v Cattell [1968] 1 NSWR 156
- R v Merrick [2016] NSWSC 163
- R v Ratten (Supreme Court (Vic), 4 August 1970, unreported)
- R v Turnbull (No 1) [2016] NSWSC 189
- R v Vandergulik [2008] VSC 17
- R v Vjestica (2008) 182 A Crim R 350; [2008] VSCA 47
- R v Yanner (1997) 98 A Crim R 51; [1998] 2 Qd R 208