Citation: R v Fitzpatrick [2019] NSWSC 153
Court: Supreme Court of New South Wales
Date: 14 February 2019
Judge: Campbell J
Background
The accused was charged with the murder of his neighbour in the small town of Portland, in the western slopes region of New South Wales, in July 2015. The Crown alleged he constructed an improvised explosive device, concealed it in a spray backpack placed in a cardboard box, and detonated it remotely when the deceased approached. The accused was arrested in December 2017 and was to stand trial commencing 1 July 2019 at Bathurst.
The deceased was a well-known local figure: a long-time power station worker, greyhound trainer, and cricket club member with deep community ties in the Portland and wider Bathurst region. His death attracted significant local and state-wide media coverage, including publication of photographs of the accused, and generated substantial social media activity from the deceased's family expressing strong views about the accused's guilt.
The accused applied for a change of venue, seeking to move the trial away from Bathurst. He relied on the extent of pre-trial publicity, community sentiment, and evidence of a disturbance that had occurred near the Bathurst Courthouse in July 2018 involving individuals connected to the matter.
Legal Issues
- Whether a fair and impartial trial could be had at Bathurst, given the deceased's prominence in the local community and the volume of media and social media coverage.
- Whether concerns about the safety of family members, legal practitioners, and jurors warranted moving the trial to another venue.
- Whether the balance of convenience favoured Bathurst or an alternative location, having regard to the location of witnesses.
Decision
Campbell J began by affirming the long-standing rule of practice that serious criminal trials should, where possible, be conducted in the locality where the relevant events occurred. His Honour noted this practice has roots in the common law predating written records, and reflects important policy values: it allows the local community to observe directly that justice is administered to the required standard, and it upholds the constitutional role of citizens in providing juries. However, his Honour confirmed the rule is one of practice, not law, and is not inflexibly applied.
On the question of a fair trial, his Honour accepted that social media posts from the deceased's family revealed strongly held views about the accused's guilt. He nonetheless found it very unlikely that such persons would be selected as jurors, given New South Wales's rigorous jury empanelment procedures and the large pool of approximately 58,000 eligible citizens in the Bathurst region. Even if a partial juror were to slip through, his Honour noted, standing judicial directions to jurors would address any residual risk. He was not satisfied that pre-trial publicity or community sympathy for the deceased rendered a fair trial impossible at Bathurst.
On security concerns, his Honour acknowledged the incident at the Bathurst Courthouse in July 2018 and took affidavit evidence from several individuals on that point seriously. Rather than treating this as a reason to relocate the trial, his Honour proposed referring the affidavits to the Sheriff's office so that appropriate security arrangements could be put in place and reported back to the Court before trial.
On the balance of convenience, his Honour found it overwhelmingly favoured Bathurst. The majority of civilian witnesses and police officers resided in the western slopes region. His Honour also expressed reservations about the routine use of audio-visual links or read statements as substitutes for viva voce witness testimony, observing that in-person evidence commands greater attention from juries.
Orders Made
- The application for a change of venue was refused.
- The affidavits of four named individuals were referred to the Sheriff's officer responsible for court security, with a request for a report on arrangements to prevent any repeat of the July 2018 incident and to protect jurors once empanelled.
- A suppression and non-publication order was made under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) on the ground in s 8(1)(a), restricting publication of the reasons to the parties, their legal representatives, and the Sheriff and her officers until the return of the jury's verdict. (This restriction was lifted on 30 July 2019.)
Key Takeaways
- The rule that serious criminal trials should be held in the locality of the alleged offence is a well-established rule of practice, not a rule of law, and courts retain a discretion to depart from it under s 30 of the Criminal Procedure Act 1986 (NSW).
- An applicant for a change of venue need not demonstrate exceptional circumstances or satisfy a heavy onus; it is sufficient to show that a change is necessary to secure a fair and impartial trial (following R v Turnbull (No 1) [2016] NSWSC 189).
- Extensive pre-trial publicity and social media activity expressing opinions about an accused's guilt do not automatically establish that a fair trial is impossible, particularly where the jury pool is large and rigorous empanelment procedures are in place.
- Security concerns at a proposed trial venue may be addressed through arrangements coordinated with the Sheriff's office, rather than treated as a ground for relocating the trial.
- The balance of convenience in change of venue applications includes the location of witnesses, and courts may give weight to the importance of viva voce testimony over evidence given by audio-visual link or read from the Bar table.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 30
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8(1)(a)
Cases
- R v Turnbull (No 1) [2016] NSWSC 189
- Gilbert v R (2000) 201 CLR 414
- John Fairfax Publications v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 325