R v Fitzpatrick - [2019] NSWSC 153

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Fitzpatrick [2019] NSWSC 153
Hearing dates: 14 February 2019
Date of orders: 14 February 2019
Decision date: 14 February 2019
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) The application for a change of venue is refused;
(2) The affidavits of Katrina Anne Bentley, Paul John Fitzpatrick, Loretta Genita Casaceli and Joseph Dalzell be referred to the Sheriff's officer responsible for court security with a view to that officer reporting back to me on the arrangements that can be made to ensure that there is no repeat of the incident which apparently occurred in and about the Bathurst Courthouse on 9 July 2018. I also request a report on what arrangements can be made at Bathurst to protect the jurors, once empanelled, against interference from members of the public.
(3) Under s 7 Court Suppression and Non-publication Orders Act 2010 NSW on the ground contained in s 8(1)(a), these reasons are for restricted publication only to the parties, their legal representatives and the Sherriff and her responsible officers until the return of the jury with their verdict.

Catchwords: CRIMINAL LAW – change of venue application – principle that justice must not only be done, but must be seen to be done – serious indictable offence – whether danger to family members and legal practitioners exists – whether fair or unprejudiced trial can be had – held balance of convenience favours Bathurst location.
Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8(1)(a)
Criminal Procedure Act 1986 (NSW), s 30
Cases Cited: Gilbert v R (2000) 201 CLR 414;
John Fairfax Publications v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 325;
R v Turnbull (No 1) [2016] NSWSC 189
Category: Procedural and other rulings
Parties: Regina (Crown)
Paul John Fitzpatrick (Accused)
Representation:
Counsel:
L. Lungo (Crown)
P. Little (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Conaghan Lawyers (Accused)

File Number(s): 2017/376874

Judgment

The applicant is to stand trial commencing on the 1st of July 2019 at Bathurst for murder. His application is for a change of venue. He is charged with murdering a neighbour by use of what is referred to, in the argot of foreign insurgencies, as an improvised explosive device. The Crown case is that the applicant held a great deal of animosity towards the deceased. In circumstances which are fully set out in the Crown case statement, but need not be recited here, he constructed a bomb or explosive device which was concealed inside a weed or insecticide spray backpack and placed in a cardboard box of the same brand. It is also the Crown case, all of which is denied, that the explosive device was operated by remote control and that the person responsible for the death of the deceased must have had a close vantage point from where she or he could ignite the device remotely when he or she saw the deceased approach on the morning of the 24th of July 2015.
It is part of the Crown case, and this is not in dispute, that the accused lived just across a laneway from the home of the deceased's mother. It was the deceased's practice, first, to keep his prized greyhounds at his mother's premises and, secondly, during the winter months, to keep his car there under cover to avoid the inconvenience of removing frost from the windscreen before he set off for work in the dark. The greyhounds were one of the alleged sources of animosity between the deceased and the applicant.
I should say that these events occurred in the small town of Portland in the western slopes region of the State. The deceased left home early in the morning to work at one of the power stations in the Lithgow-Wallerawang region. I am informed that he had lived in the area all of his life and that he had worked in one or other of the power stations in that region for most of his adult life.
From this it can be deduced readily that the deceased had very strong community ties in the Portland area. He was also well known in the greater region, as is submitted by Mr Little of counsel, who appears for the applicant today. The deceased enjoyed some prominence as a trainer of greyhounds which he raced them throughout the region. He was also involved in the local cricket club. For this reason it is said that his death was a matter that shocked the local community as he was a prominent local citizen, apparently much liked in the area.
There is, of course, an important, but not inflexible rule of practice that the trial for serious indictable offences should be conducted, so far as it is within the power of the Court can arrange it, in the locality in which the events giving rise to the charge occurred. Indeed, this practice finds its roots in the common law probably before the extant record of decisions of the Royal judges in the mediaeval period. This practice has been observed, not only in New South Wales, but also throughout what is now the Commonwealth of Australia since colonial times.
There are very many sound reasons of policy why this practice has endured over so many centuries which explain why it is considered to be an important rule of practice. Naturally, justice must not only be done, but must be seen to be done. Holding trials in regional centres gives the local community, who have the important constitutional obligation to provide a jury to adjudicate the guilt or innocence of accused persons, direct access to the Court so they can see for themselves the evidence that the jury receive and can satisfy themselves that justice, according to the high standards under which it is administered in this State, is done in the given case. The Supreme Court from the time of its establishment has conducted trials in circuit towns throughout New South Wales in the larger regional centres.
However, as I have already said, the rule is not of inflexible application. As Johnson J pointed out in R v Turnbull (No 1) [2016] NSWSC 189, the rule is one of practice and not of law. That the rule is not an inflexible one is recognised by the Parliament which has empowered the Court to make orders changing the venue fixed for a trial in s 30 of the Criminal Procedure Act, 1986 (NSW). That section is in the following terms:

“If 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 other 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.”

Justice Johnson, in Turnbull at [69], pointed out that each application under the section must be considered on its own merits without any preconceptions. There is no necessity for an applicant for an order to show exceptional circumstances, nor should the applicant be regarded as bearing a heavy onus, however, it is both necessary and sufficient for the applicant to show that the change of venue is necessary for the purpose of securing a fair and impartial trial. I have paraphrased his Honour's statement of principle and I have omitted reference to the authorities to which his Honour referred.
It must be recognised, in my own view, that it a very large thing to say in our liberal, secular and democratic society that a fair and impartial trial cannot be had in a town as large as Bathurst, where I am informed there are, including in the surrounding district, some 58,000 citizens of voting age who will provide the pool from which the jury panel, doubtless of large number given the estimate for the trial, will be drawn.
Having made that observation, the circumstances of Turnbull show that there are cases where that conclusion is nonetheless the only proper one to draw. Turnbull concerned the murder of a Government official responsible for administration of legislation protecting native vegetation. The accused was a prominent local grazier and there was evidence before the Court that the legislation was deeply unpopular amongst the rural community. His Honour was, in those circumstances, satisfied that a fair trial could not be had in the somewhat smaller town of Moree; I mean smaller than Bathurst.
The circumstances which are relied upon in this case are of some note. They include the following. Initially, although the accused was a person of interest, because of what was known to be, on the prosecution case, the animosity between him and the deceased, no definite evidence was available implicating him, notwithstanding a thorough investigation at the time. As commonly happens in the modern age, the police engaged the assistance of the media who are happy to help in these circumstances, to publicise the case, not only in the local area where it must have hardly needed much publicity but also more generally throughout the State. Accordingly, a number of articles were published, not only in the local press but also in State-wide newspapers including their online versions as detailed in Mr Long's careful affidavits.
As happens sometimes, in a number of those publications, both in print media and I think online, the photograph of the accused was published in accounts first identifying him as a person of interest and; secondly, reporting his arrest a little over two years later, in December 2017. Moreover, because, as I have said, the deceased was a prominent citizen locally with strong connections, both familial and social, there was much traffic on social media generated particularly by his family spreading from them to the wider social circle of friends and acquaintances.
There are a number of posts; I think it is put, on social media which have been attached to Mr Long's affidavit. Exhibit A is a printout from a Facebook page conducted by the member of the family who posted a number of the posts attached to Mr Long's affidavit. The purpose of Exhibit A is to show, so far as can be ascertained, the reach of her Facebook activity. It says that, overall, the family member has 2,250 “friends and, as Mr Little submits, it is impossible to say how many friends each of those friends had and how extensively they may have shared views and opinions about this case with their friends. It is fair to say about those posts that, perhaps reflecting a more general current phenomenon, the family members of the deceased have no doubt about what they think of the guilt or innocence of the applicant and have not been shy about sharing their views with their facebook friends.
However, I should pause at this point to observe in that regard that the strict procedures adopted for the empanelment of juries in New South Wales make it very unlikely that someone in “the camp” of the deceased's family would be selected as a juror, especially having regard to the large pool available in the central slopes. Even if someone happens to slip through the net designed to avoid that happening, other jurors will be instructed to report to the trial judge, who will be me, any irregularity which comes to their attention, including the irregularity of a person being unfit for service on the jury by reason of a connection with one of the parties, or preconceived notions about the guilt or innocence of the accused.
If someone slips through the net, the chances of them long surviving in the jury room seem slight and, if necessary, the jury can be discharged and the process recommenced. Indeed, it is standard practice in trials in the region that a number of rolling panels are summoned to guard against the very foreseeable circumstance that the jury has to be discharged early in the trial for good reason.
There is another matter which is of some concern and I have received affidavits from Mr Fitzpatrick, the applicant, and members of his family, about circumstances which have occurred, first, in the township of Portland and; secondly, at court when this matter was before the Local Court for a release application. That evidence is credible and it extends beyond Mr Fitzpatrick's family to evidence of a member of the Bar practising at Orange, Joseph Anthony Dalzell AM.
The first matter occurred shortly after Mr Fitzpatrick's arrest when his niece travelled to his home in Portland to support his sister, her aunt, who resided at the same address as the applicant before his arrest. And I have no reason to doubt, and it is not challenged by the Crown, that there was a disturbance where some local people - doubtless persons within the friendship group or social circle of the family of the deceased, or perhaps even, I am prepared to assume, aggrieved locals with no connection with either family - drove up to the house and into the laneway where the bomb exploded where they acted in a threatening and aggressive manner. The deponent tells me, and I well understand, that she was shaken and frightened as a result of that intimidation. Sensibly, it was reported directly to police; police attended; took statements; and, while there, saw the vehicle coming and going, witnessing the abuse being hurled at the occupants of the applicant's home.
The sergeant, an experienced officer obviously, obtained the registration details, assured the deponent and her aunt that he would do something about it; instituted regular patrols for their safety; and followed up with the niece informing her that he had spoken to the persons involved and was confident that it was unlikely that there would be a recurrence. That happened back in 2017, not long after, as I have said, the arrest of the applicant. There is no evidence of any recurrence.
It is not uncommon for there to be unrest at Court. It happens in Sydney and it happens in other places. Criminal trials, especially murder trials, often cause feelings to run high and, when that happens, even ugly scenes can occur; they should not but they do.
I am satisfied, not only from Mr Dalzell's affidavit but also from the affidavits of the other family members, that a group of people present to support the family of the deceased behaved in an improper manner in court by jostling, hissing and making offensive and threatening remarks, not only to the applicant's family but also to learned counsel who was appearing for him on the release application. Such occurrences need to be decried in the strongest possible terms when they occur. It is the responsibility of presiding judicial officers to use the powers of the Court to quell them when they occur in the courtroom and to direct the officers responsible for court security, that is, the Sheriff's officers, to take steps to make sure they are not repeated outside the courtroom. The Courts are familiar with procedures that are available to safeguard jurors entering and leaving the Court and to keep the public well away from them when that is necessary, as it may be in a case like this.
Mr Little has argued that, even if measures can be put in place to ensure no recurrence within the courtroom or the curtilage of the courthouse in Bathurst, nothing could be done to protect legal practitioners and family members after hours given that they will be residing, in all probability, in the central business district of Bathurst, a not very large precinct. I am not so sure that is correct, and I do note that there has been no repeat of the incident at the applicant's home. I also note that, although he may have had some prominence more broadly in the region, the deceased's fame and prominence really related to the small township of Portland which is, on the evidence before me, about 49 kilometres from Bathurst by the most direct route, and assuming travel at the speed limit, taking 48 minutes.
I am not so sure that the evidence, concerning as it is, rises to the level where there is such a threat to the safety of lawyers, family or witnesses, that the strong measure of changing the venue is called for because of it. Obviously, lawyers who attend trials to appear for the parties do so as officers of the Court and any threat to them of any type, or any obstruction of them, in the performance of their duties, is itself a contempt of Court. If drawn to the attention of the Court such conduct will be treated as such, and the Court has full powers to deal with people who commit such crimes.
I am not suggesting that a murder trial is not a phenomenon where, as I have said already, emotions may run high and, indeed, at times boil over. I think that is a phenomenon that has been known for almost as long as the period during which juries have been deciding guilt or innocence. However, I am not persuaded that the Court is powerless to deal with those issues in this case and I am not persuaded that the measures available to the Court must be ineffective. I am not persuaded that the normal protections and protective measures available to the Court will not be effective in this case.
I have not overlooked the potential prejudicial effect of media reports, however, that is a very common matter which must be dealt with by the Courts involved in the administration of criminal justice in this State on an almost daily basis. Although Mr Little submitted in that regard that the normal protections are likely to be ineffective, I am not persuaded that is correct.
If I may refer to the decision of Spigelman CJ in John Fairfax Publications v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 325 at [108] to [111], and by reference to it point out that, as his Honour said: "Juries are always given appropriate directions to confine their attention to the evidence that is put before them". As Gleeson CJ said in R v PH, unreported Court of Appeal 4 March 1994:

Our entire system of the administration of criminal justice depends upon the assumption that jurors understand and comply with directions of that character.

We do work on the assumption, as McHugh J pointed out in Gilbert v R (2000) 201 CLR 414 at 425: "That criminal juries act on the evidence and in accordance with the directions of the trial judge". As his Honour dryly, if not wryly, observed "otherwise there would be no point in having criminal jury trials". It is the experience of the Court that, with the occasional, notable exception, which is always detected and set right on appeal, juries do conscientiously adhere to their oaths or affirmations taken by them at the start of the trial.

Although legitimate matters of concern have been raised by and on behalf of the applicant in this case, I am not satisfied that they are such that a fair trial cannot be had in Bathurst; nor am I of the view that it is otherwise expedient to change the venue in the interests of justice.
I should say that in his affidavit the applicant, Mr Fitzpatrick, has made clear that he was always desirous of having the trial at a place other than Bathurst because of his concerns about these matters. That affidavit has been read, at least in part, to overcome any question of delay which might have arisen because those concerns were not raised when the applicant was arraigned before Fullerton J on 5 October 2018. Counsel then appearing for him (not Mr Little) made no objection to the Crown's application that the matter be set down in Bathurst. Learned counsel said, "I am not particularly concerned about the venue". Mr Fitzpatrick has explained in his affidavit that, when he heard that said, he felt unable to speak up because of being confined in a correctional centre and appearing by the AVL. He also felt constrained not to speak up by his view of the proper respect and courtesy for him to show to the Court. That is all very understandable. Had there been an issue about the delayed timing of this application, I would have accepted that explanation as being satisfactory and would not have thought it appropriate to consider that the application should not be entertained or should be refused because of delay.

As I have already said - and if I have not I will say it now - the concerns raised were properly raised and are legitimate and I make no criticism of the application being brought in any way. I should say a couple of things, however, about that. First, I have not referred to the affidavit of Ms Hooper, the solicitor handling the matter at the Office of the Director of Public Prosecutions. To the extent to which it is relevant, the balance of convenience overwhelmingly favours Bathurst as the appropriate venue in the case, having regard to the large number of civilian non-expert witnesses and police officers who reside on the western slopes.
I accept, as Mr little submits, that the number of witnesses are likely to be whittled away as counsel discuss the matter. Even so, it seems to me that that is a factor which is entitled to some weight in the Court's determination. I am not satisfied that it is always appropriate that the evidence of lay witnesses should be put before the jury by AVL; or that their statements should merely be read. It is very hard to get a jury or anyone, even a Judge, I apprehend, to pay as much attention to evidence which is merely read from the Bar table as is paid to viva voce testimony with the witness present in court engaging with examining counsel.
I do propose, unless there is objection, to refer the affidavits of what occurred at the release hearing to the Sheriff with a request that particular arrangements be made for security at the trial in Bathurst in July. I will request that the Sheriff report back to me as to what those arrangements will be and I will inform the parties of the report I receive so that any particular applications can be made if there is anything about the arrangements which seems for some good reason to be not fully satisfactory.
My orders are:

The application for a change of venue is refused;

The affidavits of Katrina Anne Bentley, Paul John Fitzpatrick, Loretta Genita Casaceli and Joseph Dalzell be referred to the Sheriff's officer responsible for court security with a view to that officer reporting back to me on the arrangements that can be made to ensure that there is no repeat of the incident which apparently occurred in and about the Bathurst Courthouse on 9 July 2018. I also request a report on what arrangements can be made at Bathurst to protect the jurors, once empanelled, against interference from members of the public.

Under s 7 Court Suppression and Non-publication Orders Act 2010 (NSW) on the ground contained in s 8(1)(a), these reasons are for restricted publication only to the parties, their legal representatives and the Sherriff and her responsible officers until the return of the jury with their verdict.

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Amendments

30 July 2019 - Publication restriction lifted

Decision last updated: 30 July 2019

Medium Neutral Citation:	R v Fitzpatrick [2019] NSWSC 153
Hearing dates:	14 February 2019
Date of orders:	14 February 2019
Decision date:	14 February 2019
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	(1) The application for a change of venue is refused; (2) The affidavits of Katrina Anne Bentley, Paul John Fitzpatrick, Loretta Genita Casaceli and Joseph Dalzell be referred to the Sheriff's officer responsible for court security with a view to that officer reporting back to me on the arrangements that can be made to ensure that there is no repeat of the incident which apparently occurred in and about the Bathurst Courthouse on 9 July 2018. I also request a report on what arrangements can be made at Bathurst to protect the jurors, once empanelled, against interference from members of the public. (3) Under s 7 Court Suppression and Non-publication Orders Act 2010 NSW on the ground contained in s 8(1)(a), these reasons are for restricted publication only to the parties, their legal representatives and the Sherriff and her responsible officers until the return of the jury with their verdict.
Catchwords:	CRIMINAL LAW – change of venue application – principle that justice must not only be done, but must be seen to be done – serious indictable offence – whether danger to family members and legal practitioners exists – whether fair or unprejudiced trial can be had – held balance of convenience favours Bathurst location.
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8(1)(a) Criminal Procedure Act 1986 (NSW), s 30
Cases Cited:	Gilbert v R (2000) 201 CLR 414; John Fairfax Publications v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 325; R v Turnbull (No 1) [2016] NSWSC 189
Category:	Procedural and other rulings
Parties:	Regina (Crown) Paul John Fitzpatrick (Accused)
Representation:	Counsel: L. Lungo (Crown) P. Little (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) Conaghan Lawyers (Accused)
File Number(s):	2017/376874