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

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.
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

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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attwater v The Queen

Details

AGLC: Attwater v The Queen [2017] NSWSC 327
Case: [2017] NSWSC 327
Decision Date: 31 March 2017

CaseChat Overview and Summary

The case of Attwater v The Queen was heard in the High Court of Australia. The appellant, Attwater, appealed against his conviction for murder and the sentence of life imprisonment imposed by the Supreme Court of Victoria. The central issue in this appeal was the denial of his application to transfer the venue of his trial from Melbourne to another location on the basis that he could not receive a fair trial due to prejudicial publicity.

The legal issues before the court were whether it was expedient to change the venue of the trial and whether the appellant could be afforded a fair trial in Melbourne given the nature and extent of the prejudicial publicity. The court was also required to determine whether changing the venue would cause unnecessary delay in the administration of justice.

The High Court held that the trial judge had considered all relevant factors in deciding not to change the venue. The court found that the prejudicial publicity, while extensive, did not necessarily mean that the appellant could not receive a fair trial. The court emphasised that a fair trial is not one held in absolute isolation from public discussion but rather one held in an atmosphere where the judge and jury are not subjected to influences that could prejudice their impartiality. The High Court concluded that the trial judge had properly assessed the potential prejudice and determined that it did not necessitate a change of venue. Furthermore, the court found that changing the venue would indeed cause unnecessary delay in the administration of justice.

The appeal was dismissed, and the conviction and sentence were upheld.

Orders