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Supreme Court 10 August 2018

R v Dunstall

[2018] NSWSC 1576

Homicide
CRIMINAL LAW PROCEDURE DISCUSSION OF OTHER RELEVANT FACTORS TRIAL DATE AND VENUE CONFIRMED NOTICE OF MOTION DISMISSED

Citation: R v Dunstall [2018] NSWSC 1576
Court: Supreme Court of New South Wales
Date: 10 August 2018
Judge(s): Button J

Background

The accused faced a murder charge arising from events alleged to have occurred in June 2014, involving locations along the Hume Highway between Wagga Wagga and Sydney, including Pheasants Nest and Jamberoo. He had been in custody since May 2015 following bail refusal, and was committed for trial in October 2017 before entering a not guilty plea in December of that year.

The trial had been set down for Wollongong more than six months before this application was heard, with both parties content at that time to proceed in that venue. The application came before Button J approximately three weeks before the scheduled trial commencement date.

The accused applied under s 30 of the Criminal Procedure Act 1986 (NSW) to move the trial from the Supreme Court at Wollongong to the Supreme Court in Sydney. The primary grounds were the balance of convenience and the logistical burdens that a Wollongong trial would impose on the incarcerated accused and his defence legal team.

  • Whether the balance of convenience, under s 30 of the Criminal Procedure Act 1986 (NSW), favoured transferring the trial from Wollongong to Sydney.
  • Whether the logistical and custodial difficulties facing the accused and his defence team constituted a compelling reason to change the venue.
  • What weight should be given to the established trial date and the likely consequences of a transfer, including further delay.

Decision

Button J accepted that the balance of convenience favoured Sydney to a small degree, noting the location of expert witnesses, specialist police units, and the family of the deceased. The Crown conceded that the alleged offence did not occur within Wollongong itself and that convenience was either broadly equal or shaded slightly toward Sydney.

The court also accepted that custodial conditions arising from a Wollongong trial would be difficult and demanding for the accused. However, Button J observed that lengthy trials in Sydney present their own logistical difficulties, and expressed confidence that practical steps could be taken to ensure neither party was disadvantaged.

The determinative factor was the significant disruption that a venue change would cause at such a late stage. His Honour noted that the accused had been in custody for more than three years, the matter had been set down at Wollongong without objection for over six months, and a transfer to Sydney would in all likelihood require the matter to re-enter the arraignments list with a further delay of many months. That outcome was characterised as undesirable from the perspectives of the administration of justice, the community, and the accused himself.

Button J concluded that no compelling reason had been established to disrupt the existing arrangements three weeks before trial, and dismissed the motion.

Orders Made

  • The Notice of Motion filed by the accused was dismissed.
  • The trial date and venue (Supreme Court at Wollongong) were confirmed.
  • Button J added a recommendation (not a formal order) that Legal Aid approve accommodation in Wollongong for at least senior counsel and the solicitor for the accused, given the gravity, complexity, and volume of the matter.

Key Takeaways

  • Under s 30 of the Criminal Procedure Act 1986 (NSW), a modest tilt in the balance of convenience toward an alternative venue does not, of itself, warrant a change of venue, particularly where a trial date has been firmly set.
  • In dismissing the application, Button J treated the risk of further delay to a lengthy-remanded accused as a weighty consideration cutting against, not in favour of, a transfer.
  • Custodial inconvenience to an incarcerated accused arising from a regional trial venue is a relevant factor, but the Supreme Court found it was not determinative where similar logistical difficulties could arise at the proposed alternative venue.
  • A six-month absence of objection to an agreed venue, combined with the imminence of trial, significantly diminishes the persuasive force of a late change-of-venue application.
  • The court appended a non-binding recommendation that Legal Aid fund accommodation for defence lawyers in Wollongong, reflecting the practical reality that the accused's legal team would face genuine hardship conducting the trial away from Sydney.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 30

Cases cited:
No cases were cited in the judgment.