R v Dunstall

[2018] NSWSC 1576

Supreme Court

New South Wales

Medium Neutral Citation:	R v Dunstall [2018] NSWSC 1576
Hearing dates:	10 August 2018
Decision date:	10 August 2018
Jurisdiction:	Common Law
Before:	Button J
Decision:	(1) The notice of motion of the applicant filed 1 August 2018 is dismissed. (2) The trial date of Monday 3 September 2018 at Wollongong is confirmed.
Catchwords:	CRIMINAL LAW – procedure – application for change of venue from regional centre to Sydney – whether balance of convenience falls towards Sydney – whether logistical impositions experienced by accused and defence legal team warrant change in venue – discussion of other relevant factors – trial date and venue confirmed – notice of motion dismissed
Legislation Cited:	Criminal Procedure Act 1986 (NSW), s 30
Category:	Procedural and other rulings
Parties:	Regina Glen Roland Dunstall
Representation:	Counsel: D Scully (Crown) J Stratton SC (Accused)   Solicitors: Director of Public Prosecutions (Crown) Voros Lawyers (Accused)
File Number(s):	2015/141328
Publication restriction:	Nil

Ex Tempore Judgment - revised

Introduction

1. This application by the accused for a change of venue from the Supreme Court at Wollongong to the Supreme Court in Sydney (pursuant to s 30 of the Criminal Procedure Act 1986 (NSW)) has been argued with admirable concision. I have also had the benefit of short but cogent written submissions from both parties. As well as that, the trial date is imminent in that it is three weeks from next Monday, three days from today. For all of those reasons, I think that I can and should be succinct myself.

Background

2. The background is that Mr Glen Dunstall, the accused, is alleged to have committed the offence of murder more than four years ago, in June 2014. He was arrested, and has been bail refused, since May 2015, over three years ago. He was committed for trial in October 2017, and entered a plea of not guilty in this Court in December of that year. Almost exactly six months ago, the trial date was confirmed, and both parties were content for the venue to be in Wollongong. Indeed, that topic was discussed as early as 1 December 2017, and the events of February 2018 were a confirmation.

3. In fact, the alleged offence is not said to have occurred within the city of Wollongong. Rather, relevant events are said to have taken place along the Hume Highway between Wagga Wagga, where the accused was said to reside, and Sydney, and in particular at a township called Pheasants Nest and a location called Jamberoo. Having said that, I think that in a very broad sense it could be said that the events of the trial are closer to Wollongong than they are to Queens Square, King Street, or Darlinghurst.

Submissions

4. Senior counsel for the accused has emphasised that the balance of convenience is reasonably evenly drawn between those two metropolitan centres, although in light of the position of the experts and specialist police units, and the convenience of others – not least the family of the deceased – it falls towards Sydney.

5. But his real emphasis was placed upon the logistical impositions that will be experienced by the incarcerated accused if the trial is conducted in Wollongong, along with logistical impositions on the defence legal team.

6. The position of the Crown, in a nutshell, is to accept that the alleged offence did not take place within the city of Wollongong itself, and that the balance of convenience is either broadly equal or perhaps shades towards Sydney. Having said that, the Crown does not accept that the accommodation of the accused throughout the trial, if it be in Wollongong, will be insurmountably difficult, and in any event, submits that one could have little confidence that things will be any better in Sydney.

Determination

7. As for myself, I think that balance of convenience favours Sydney to a small degree, despite each party having agreed that a view would assist the jury and me being quite open to that joint position.

8. I also accept that the custodial conditions of the accused arising from a Wollongong trial would be difficult and demanding. Having said that, experience has shown that the logistics of a lengthy trial in Sydney are not easy either. And, of course, with the assistance of the parties, I will do what is reasonably practical to try to ensure that the trial runs as smoothly as possible, and in a way whereby neither party and neither legal team is disadvantaged.

9. But to my mind the most significant factor here is that this murder is alleged to have occurred more than four years ago; the accused has been in custody for more than three years; and the matter was set down for trial in Wollongong more than six months ago without demur. Without having made inquiries, my expectation is, and my working assumption for the purposes of the hearing of this motion is, that it is quite likely that if the trial were transferred to Sydney, it would simply need to return to the arraignments list, and be given a further trial date many months from today. That outcome is undesirable, not only from the point of view of the administration of justice, but also, of course, from the perspective of the community and indeed the accused.

10. To my mind, there is no compelling reason why all that has been put in place must be disrupted and delayed three weeks before the trial is to commence.

Orders

11. In short, in my opinion it has not been established that the trial should be transferred from Wollongong to Sydney. Accordingly, the Notice of Motion of the accused is dismissed and the trial date and venue is confirmed.

Recommendation

12. Finally, having said that, I respectfully recommend, however, that Legal Aid approve accommodation for at least senior counsel and the solicitor of the accused in Wollongong, in light of the gravity, complexity, and voluminous nature of this case.

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Decision last updated: 18 October 2018