Attwater v The Queen

[2017] NSWSC 327

Supreme Court

New South Wales

Medium Neutral Citation:	Attwater v R [2017] NSWSC 327
Hearing dates:	28 March 2017
Decision date:	31 March 2017
Jurisdiction:	Common Law - Criminal
Before:	Latham J
Decision:	Application dismissed
Catchwords:	CRIMINAL LAW – procedure – change of venue – whether it is expedient to change the venue – whether accused cannot be afforded a fair trial – nature and extent of prejudicial publicity  – whether change of venue would cause unnecessary delay - application dismissed.
Legislation Cited:	Coroners Act 2009 (NSW) - s 78 Jury Act 1977 (NSW) – s 19(2) Criminal Procedure Act 1986 (NSW) – s 30
Cases Cited:	DPP (Vic) v Bennett (2004) 10 VR 355; VSC R v Cattell [1968] 1 NSWR 156 R v Merrick [2016] NSWSC 163 R v Ratten (Supreme Court (Vic) 4 August 1970, unrep) 148 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
Category:	Principal judgment
Parties:	Adrian Attwater (Applicant) Paul Maris (Co-accused) Regina (Respondent)
Representation:	Counsel: Mr I Todd (Applicant) Mr A Radojev (Co-accused) Mr P Strickland SC (Crown)   Solicitors: Legal Aid NSW (Applicant) Stidwell Solicitors (Co-accused) Director of Public Prosecutions (NSW) (Crown)
File Number(s):	2016/1920062016/190670

Judgment

1. The accused Mr Attwater (the applicant) applies for a change of venue of his trial currently listed to commence at Coffs Harbour on 24 July 2017 for a period of five to six weeks. The co-accused Mr Maris joins in the application but does not wish to be heard in relation to it. The Crown opposes the application.

2. The Notice of Motion seeks an order vacating the order of Johnson J of 2 December 2016 and an order directing that the trial proceed at Sydney, on the ground that it is expedient to hold the trial in Sydney due to the risk of personal harm to the applicant in the Coffs Harbour region and the availability of better security in Sydney, and on the ground that a fair or unprejudiced trial cannot be had at Coffs Harbour, due to the greater volume and prejudicial publicity in Coffs Harbour and the north coast of NSW.

The History of the Proceedings

3. Following the death of Lynette Daley on 27 January 2011 at Iluka Beach in northern New South Wales, the applicant and his co-accused were each charged with offences arising therefrom. The applicant was charged with aggravated sexual assault and manslaughter. Mr Maris was charged with aggravated sexual assault and being an accessory after the fact to manslaughter.

4. Upon referral of the charges to the New South Wales Director of Public Prosecutions, the Director declined to prosecute either accused in relation to any offence.

5. A coronial inquest into the death of Ms Daley took place between 11 and 15 August and 26/27 November 2014. The State Coroner made findings which again resulted in the referral of the matter to the DPP pursuant to s 78 of the Coroners Act2009. The DPP once more declined to prosecute in respect of any offence.

6. In February 2016 the New South Wales Attorney General requested that the Director review his prior decisions not to prosecute.

7. On 9 May 2016 the ABC broadcast an episode of its national program “Four Corners” titled “Callous Disregard”. It reported on the death of Ms Daley and queried the failure to prosecute the applicant and Mr Maris.

8. On 11 May 2016 the Director issued a media release indicating that he had sought legal advice from independent senior counsel in relation to his previous decisions not to prosecute.

9. On 23 June 2016 Court Attendance Notices were issued at Grafton Local Court charging the applicant and Mr Maris with the offences that had previously been preferred against them.

10. The proceedings were first listed for mention at Grafton Local Court on 2 August 2016. The events of that day assume some significance in this application. In summary, a large crowd of persons said to be supporters of the deceased and her family accosted, harassed and assaulted the applicant and his solicitor as they attempted to leave Grafton Local Court. It will be necessary to return to these events in more detail.

11. On 26 October 2016 the DPP sought an exemption from the Chief Justice of the Supreme Court allowing for the filing of an ex officio indictment against the applicant and Mr Maris in the Supreme Court rather than the District Court. On 15 November 2016 the Chief Justice granted that exemption.

12. The proceedings were first listed for mention at the Supreme Court in Sydney on 2 December 2016. The applicant and his co-accused were arraigned before Johnson J and each of them entered pleas of not guilty to all charges. The Crown sought a trial date at Coffs Harbour which the legal representative for Mr Maris did not oppose. The applicant’s legal representative did not consent to that venue, however his Honour fixed the proceedings for trial in Coffs Harbour commencing 24 July 2017.

The Evidence on the Application

13. The applicant relies upon his own affidavit, sworn 25 February 2017, together with the contents of an affidavit sworn by his solicitor, Martin Bernhaut, on 27 January 2017. That material establishes the following.

14. Soon after the death of Ms Daley, the applicant was abused and threatened by members of the public in the Maclean region where he then lived.

15. At that point in time there was a significant amount of publicity about the death of Ms Daley in the “Daily Examiner”, a newspaper circulating in the Clarence Valley.

16. The applicant experienced an increased level of abuse and threats following the initial charges laid against him on 19 April 2011. Immediately after those charges were withdrawn, the applicant left Yamba and moved to far North Queensland.

17. The applicant lived in that region for some time, then moved to Mackay then to Townsville. He was relatively untroubled until the “Four Corners” programme, which resulted in a reporter from “A Current Affair” locating the applicant in Townsville. A camera crew was stationed outside the applicant’s house for three days in an attempt to speak to him.

18. The “Four Corners” program and an item on “A Current Affair” resulted in the recommencement of general abuse directed towards the applicant. Shortly thereafter the applicant was again charged with respect to the death of Ms Daley.

19. The applicant then moved from Townsville to Toowoomba shortly prior to the first appearance date at Grafton Local Court.

Grafton Local Court 2 August 2016

20. On 1 August 2016 the applicant’s solicitor was copied into an email from the DPP solicitor with carriage of the prosecution, directed to the New South Wales Chief Magistrate’s Office. The email contained two attachments consisting of two screenshots of a single public Facebook post. The email indicated that the Facebook post was then circulating online. The post drew attention to the fact that the applicant and his co-accused were due to appear at Grafton Local Court the next day and essentially exhorted the community to attend the courthouse in order to support the deceased’s family. The Facebook post referred to the applicant and his co-accused as “two disgusting men” who should be “behind bars for a long time.” Apart from attaching the Facebook post, the email simply noted that the matter was listed for mention at Grafton Local Court the following day and the fact that the accused were represented by named solicitors. Clearly, the purpose of the email was to alert the Local Court to the potential for a disruption to the proceedings.

21. The applicant’s solicitor met the applicant at a location remote from the courthouse on the morning of 2 August 2016 so that the solicitor could accompany him as he entered the courthouse. There was a reasonably large crowd gathered on the footpath estimated to be in the vicinity of 30 people in addition to at least 10 members of the media. The solicitor noted there were no uniformed police officers, court officers or sheriffs’ officers outside the courthouse. The applicant and the solicitor encountered no problems entering the courthouse by the front door.

22. The court room was full when the applicant’s matter came on for mention. There were at least 50 people present in the courtroom. The sitting magistrate made a non-publication order relating to the disclosure of any information which could identify the residential address or contact details of either accused. There was no disturbance during these proceedings.

23. At the conclusion of the proceedings, both accused remained in the courtroom while the registry staff processed their bail. Approximately 30 minutes elapsed before the applicant and his solicitor walked together from the courthouse.

24. On leaving the courthouse the applicant and his solicitor were confronted by a large group of people, including journalists and camera crews. Some of the members of the public commenced to push and grab the applicant. The applicant was also verbally abused in grossly derogatory terms. Others were heard to incite violence against the applicant, saying “Hit him! Hit him!” and “Let’s get him!”

25. At one point a woman stood in the applicant’s way, grabbed him by the front of his shirt and shouted at him. The applicant managed to free himself and make his way onto the street between two parked cars. The applicant was grabbed and punched while a woman was heard to scream “hit him!” several times. A woman and a man pursued the applicant between the cars and onto the street where they grabbed and pushed the applicant. The applicant’s sunglasses fell from his head.

26. The applicant escaped and walked quickly down the street, although he was pursued by a number of cameramen who continued to film him. The applicant was visibly shaken by these events, although he was not physically injured.

27. Annexure D to Mr Bernhaut’s affidavit consists of a DVD which records the entire episode from the point when the applicant emerges from the courthouse, to the point when he is able to leave his pursuers behind. Having watched that recording, the bare description of what occurred does not adequately convey the venom of the insults that were shouted at the applicant or the degree of hostility exhibited towards him. That said, the Facebook post did not incite or encourage the use of violence. It did however refer to the applicant and Mr Maris in terms that assumed their guilt of the offences.

28. Later that day the applicant’s solicitor sent an email to the police officer in charge of the investigation and to the Registrar of the Grafton Local Court. Both of those emails drew attention to the assault upon the applicant by members of the public and expressed some alarm and disappointment that more appropriate security measures had not been in place, especially in the light of the email from the DPP solicitor the previous day. The applicant’s solicitor requested that more resources, that is, a greater police presence and more sheriffs’ officers, be devoted to any future mention of the matter.

29. The Chief Superintendent, Security Intelligence and Risk, of the NSW Sherriff’s Office responded on 4 August. He advised that one additional sherriff’s officer was on duty at Grafton that day but, given that the incident took place on land outside the boundary of the courthouse, it was a matter for NSW Police. He confirmed that the accused were excused from attending if legally represented at future mentions.

30. Also annexed to the affidavit of Mr Bernhaut are two media articles (“The Daily Telegraph” and the ABC online news) which reported on the melee outside Grafton Local Court.

31. Unlike Grafton courthouse, Coffs Harbour courthouse has full-time perimeter security and a larger complement of sherriff’s officers. The same observation applies to the Supreme Court in Sydney.

32. The applicant’s experience at the mention on 2 August 2016 has given rise to significant fears on his part in the event that his location in Coffs Harbour for the duration of the trial becomes known. The applicant maintains that if the trial were to be held in Sydney, he would be able to find accommodation which is unlikely to be discovered, and a repetition of these events would be unlikely in view of the security available at a Sydney courthouse.

Publicly Accessible Facebook Posts and Media Coverage

33. A significant number of public Facebook posts are attached as Annexure M to Mr Bernhaut’s affidavit. They occupy 75 A4 pages and are dated between 10 May 2016 (the day after the broadcast of the “Four Corners” programme) and 28 December 2016. A number of them contain derogatory comments directed at the applicant and Mr Maris attributing responsibility to both men for the death of Ms Daley. However, the majority of the posts appear to relate to various support groups and forums dedicated to the prevention of domestic violence generally and to the pursuit of justice for victims of domestic violence and for victims of unsolved homicides. A quantity of those appear under the hash tag “#justicefornorma”, which I take to be a reference to the pseudonym (Norma) given to Ms Daley when restrictions on publication of her identity were in place.

34. One theme which emerges from this material is an apprehension that those working within the criminal justice system do not apply the same skill and effort to the pursuit of those who may be liable for the death of indigenous victims as would be applied in the case of non-indigenous victims. To the extent that such an apprehension exists in the community, it is a factor that should be weighed in the balance in determining this application. The maintenance of the rule of law depends upon the community’s confidence in the administration of justice. That confidence is enhanced where justice is seen to be done.

35. Mr Bernhaut’s affidavit also attaches extracts relating to the circulation of various news outlets on the mid-north coast and north coast of New South Wales. They include “The Advocate” which circulates predominately in the Coffs Harbour region, “The Daily Examiner” which circulates largely in the Clarence Valley, “The Northern Star” which circulates largely in the Lismore and Northern Rivers region of New South Wales, and “The Byron Shire News” which also circulates in the Lismore and Northern Rivers region.

36. The Northern Star is distributed to one suburb in the Coffs Harbour jury district (Affidavit of M McAuliffe, sworn 13 March 2017). Otherwise, “The Advocate” is the only one of these publications circulating in the Coffs Harbour region.

37. Mr McAuliffe’s affidavit, filed on behalf of the Crown, refers to numerous online publications, in addition to those referred to by Mr Bernhaut, which have canvassed the circumstances surrounding the death of Ms Daley. All these publications are accessible at any location in the State via internet access.

The Jury Pool

38. The jury district for the purposes of summonsing a jury pool in New South Wales follows State electoral boundaries were possible. New South Wales jury districts are the same for District and Supreme Court trials. It is the practice of the New South Wales Sheriffs Office to summons individuals who reside no greater than 60 km from the relevant courthouse.

39. The Sydney Supreme Court jury district does not include the jury districts of Parramatta, Penrith or Campbelltown. The Sydney Supreme Court jury district extends generally south to Bundeena, west to Lidcombe and Ryde and north to Hornsby and Palm Beach.

40. The Coffs Harbour jury district extends beyond Coffs Harbour city and includes Red Rock to the north, Dorrigo to the west and Bowraville to the south.

41. On the hearing of the application, the Crown confirmed that the courthouse at Coffs Harbour accommodated additional jurors, in the event that the trial judge was satisfied of the requirements of s 19(2) of the Jury Act1977. Additional jury panels may ensure that a sufficient number of potential jurors, with the necessary independence and objectivity, are available for a trial at Coffs Harbour.

The Convenience of the Witnesses

42. The Crown anticipates calling approximately 30 witnesses at trial. Of those 30 witnesses, 21 reside in the North Coast region. Of the nine witnesses who do not reside on the north coast of New South Wales, one lives in a suburb of Port Macquarie, one lives on the Gold Coast, one lives in Victoria and one lives in Newcastle. Five witnesses reside in Sydney.

43. The defence anticipate calling expert evidence at trial. It is likely that those witnesses will be Sydney based.

44. One of the Crown witnesses, Mr Gordon Davis, is the stepfather of the deceased. Mr Davis and his wife Thelma presently care for five of the deceased’s children, ranging in age from 18 to 11. The deceased’s youngest child lives with the deceased’s sister, who is also a witness at trial.

45. Mr and Mrs Davis live in Yamba. They ensure that the children are transported to and from school, they attend to their educational needs and provide a stable home environment. They would be unable to care for the children during the week if the trial took place in Sydney.

46. They are both anxious that the trial take place as soon as possible and they are committed to ensuring, as far as they can, that nothing jeopardises the proceedings. Mr Davis intends to speak to his community and warn them against any further violence or interference in the trial process.

47. Mr Davis suffers from diabetes, high blood pressure and prostate cancer which is in remission. Mr Davis has medical appointments every three months. Mr Davis has difficulty travelling by plane because of swelling and oedema. He also has difficulty driving for long periods of time because of his diabetes. The only method of travel available to Mr Davis and Mrs Davis were the trial to be removed to Sydney would be by train. They would be required to return home on weekends by train.

48. Assuming that the trial remains in Coffs Harbour, Mr Davis intends to maintain the family routine and drive the 45 minutes from his home so that he and his wife would be able to observe the trial process.

The Applicable Principles

49. Section 30 of the Criminal Procedure Act1986 provides:

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 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.

50. The section invests the Court with a wide discretion which should only be exercised, in circumstances where the venue has already been fixed by order of the Court, for real and substantial reasons: R v Cattell (1968) 1 NSWLR 156.

51. In DPP (Vic) v Bennett (2004) 10 VR 355, Cummins J noted that the “starting point” of an application such as the present was considered by Lush J in R v Ratten (unreported) 4 August 1970:

“[I]t is a matter of public interest and public policy that a trial should be held in the locality and … in the community area in which the crime is alleged to have been committed. …. so that justice will be seen to be done by those who are interested in seeing it and so that no feeling can arise that justice is done in a distant place and community.”

52. Cummins J went on to say at [6] and [7]:

“There are powerful reasons of public policy why the venue of offence should be the venue of trial. The local community is the community in which the alleged crime took place; it is concerned to have the law administered within it; and to remove a ... trial … can lead the vacated community to feel disenfranchised, marginalised or alienated.

Nor should the court too readily act on evidence of local concern.”

53. The public policy considerations must however give way when the material establishes that there is a real risk that an accused will not receive a fair trial, or the appearance of it.

53. The presumption in favour of a local trial is a rule of practice and not a rule of law: R v Vjestica (2008) 182 A Crim R 350 at 353. The onus rests upon the applicant to demonstrate that a change of venue is necessary for the purpose of securing a fair and impartial trial.

54. The test of necessity is a stringent one. The applicant for a change of venue must persuade the court that an identifiable risk of prejudice cannot be overcome by the safeguards inherent in a jury trial, including the excusing of any potential juror who may have difficulty deciding the case impartially; warnings and directions from the trial judge to the jury about deciding the case strictly on the evidence; and the discipline of participation in the trial itself: Vjestica at [5].

55. As Johnson J observed in R v Turnbull (No. 1) [2016] NSWSC 189 at [70], citing R v Vandergulik [2008] VSC 17, many factors bear upon the assessment of the merits of an application, including but not limited to fairness, the perception of fairness, local concerns, pre-trial publicity, inconvenience and health.

56. Johnson J also observed in Turnbull at 72:

An assessment of what is expedient in a particular case will involve a practical consideration of matters bearing upon the balance of convenience for the purpose of a jury trial. This involves not only issues such as cost and location of witnesses, but importantly, the capacity of the relevant country location to provide numerically for potential jurors so that a jury trial could practically and efficiently proceed at that country location.

58. An additional relevant factor is the prospect of delay: R v Yanner (1997) 98 A Crim R 51.

Fair and Unprejudiced Trial?

59. The applicant has not demonstrated to my satisfaction that there has been a greater volume of prejudicial publicity in the Coffs Harbour and/or north coast region of NSW. Whilst there is no doubt that the events leading to the charging of the applicant have attracted a great deal of publicity, that publicity has been, on the whole entirely accurate. It is unfortunate that the inflammatory and prejudicial behaviour of members of the public on 2 August 2016 received national attention, but a distinction should be drawn between fair and accurate reporting of the prejudicial conduct of others and unfair or prejudicial comment by the publications themselves.

60. A fair reading of the various news reports of that day and of the Facebook posts leaves the impression that there are many people in the deceased’s community who feel strongly about the circumstances of her death and the delay in bringing charges against the applicant and his co-accused. That is not surprising. Nor is it surprising that those people appear to have decided that the applicant and Mr Maris are guilty of the offences with which they have been charged, although they may know little or nothing of the evidence in the Crown case. Such demonstrations of community outrage appear to be facilitated by social media, which can be no more than an electronic form of gossip.

61. The reality that the uninformed views of persons who take an interest in such matters, often with the best of intentions, can be electronically and instantaneously published to the world at large must be accommodated by the administration of justice. That reality is here to stay. The courts should not, in my view, be unduly influenced by the views expounded through social media when determining whether an accused can receive a fair trial: see R v Merrick [2016] NSWSC 163.

62. Almost a year will have elapsed between the events of 2 August 2016 and the trial date. There has been no repetition of them and there is unlikely to be, given the security arrangements at Coffs Harbour courthouse. If there is any indication of a disturbance of that nature or any security risks encountered by the applicant and/or Mr Maris during the trial, it is within the trial judge’s discretion to make such orders as are appropriate to meet that eventuality.

63. It is a matter of public record that strong and repeated directions to a jury are capable of convincing jurors of the importance of maintaining an open mind throughout a trial. Many notorious murder trials in this State in recent years have proceeded despite intense media scrutiny and juries have consistently demonstrated their willingness and capacity to have regard only to the evidence, to give to the accused the benefit of the presumption of innocence and to faithfully follow the directions of law they are given. There is no reason to think that a jury struck from the community in Coffs Harbour will not do the same.

64. As the Crown has rightly submitted, a change of venue in this case does not address the asserted risk of an unfair trial arising out of the volume and nature of the publicity. The bulk of the material relied upon by the applicant is available online from any location.

Expediency

65. The applicant points to the risk to his personal security for the duration of a trial in Coffs Harbour, based upon his experiences to date. The single factor favouring a change of venue to Sydney on this ground is the unlikely discovery of his accommodation in a large metropolitan area.

66. The countervailing considerations are the cost and inconvenience occasioned to the 21 witnesses in the Crown case who reside on the north coast, including the step father and sister of the deceased. The health and family responsibilities of Mr Davis are significant factors.

67. The Crown has also foreshadowed an application to the trial judge for a view. That is a matter yet to be determined but such an application would be almost futile if the trial were moved to Sydney.

68. It is likely that a change of venue to Sydney will result in the vacation of the trial date. There is a prospect that a trial of this length may get on in Sydney in October of this year. That represents an unacceptable further delay. It is in the interests of the applicant and Mr Maris, as well as in the interests of the community, that the proceedings are brought to finality as quickly as possible.

69. The security concerns expressed by the applicant are capable of being addressed by the facilities at Coffs Harbour, in addition to any directions from the trial judge.

70. Taking all of these matters into account, the applicant has not established the necessity for a change of venue. I decline to make the orders sought in the Notice of Motion.

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Decision last updated: 31 March 2017