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…

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 R v Fitzpatrick

Details

AGLC: R v Fitzpatrick [2019] NSWSC 153
Case: [2019] NSWSC 153
Decision Date: 14 February 2019

CaseChat Overview and Summary

The case of R v Fitzpatrick involved the applicant seeking a change of venue for the trial of a serious indictable offence. The applicant argued that the potential danger to family members and legal practitioners, as well as the public sentiment and media presence, would hinder the possibility of a fair trial in the original location. The matter was heard in the relevant Australian court, where the presiding judge was tasked with determining whether the application should be granted.

The primary legal issue before the court was whether the balance of convenience favoured a change of venue. This required the court to consider the principle that justice must not only be done, but must also be seen to be done. The court examined the likelihood of prejudice to the applicant and the potential impact on the trial's fairness and impartiality. It was necessary to assess the seriousness of the allegations, the potential for prejudice, and the availability of measures to mitigate any perceived risks.

The court ultimately found that the balance of convenience did favour the Bathurst location for the trial. The potential prejudice to the applicant, coupled with the serious nature of the offence, warranted a change of venue. The court emphasised the importance of maintaining public confidence in the justice system, ensuring that the trial was conducted in a manner that upheld the principles of fairness and impartiality. The court granted the application for a change of venue, acknowledging the applicant's right to a fair trial.

The final orders included the transfer of the trial to Bathurst, with directions for the necessary logistical arrangements to be made. The court also issued directions for the management of media coverage and the implementation of measures to protect the safety of the applicant's family members and legal practitioners.

Orders