R v Turnbull (No 1)

[2016] NSWSC 189

Supreme Court

New South Wales

Medium Neutral Citation:	R v Turnbull (No. 1) [2016] NSWSC 189
Hearing dates:	18 December 2015
Date of orders:	18 December 2015
Decision date:	10 March 2016
Before:	Johnson J
Decision:	The trial of the Accused is to proceed at the Supreme Court in Sydney in April 2016.
Catchwords:	CRIMINAL LAW – procedure – appropriate venue for trial – alleged offence of murder in rural NSW – whether trial should proceed in district in which offence occurred – s. 30 Criminal Procedure Act 1989 – need for a fair trial for Crown and Accused – Accused charged with murder of environmental officer who has prosecuted him for breach of native vegetation laws – evidence of strong community feelings concerning native vegetation laws in local district – issues of expediency – evidence of difficulty empanelling a jury in district in which offence occurred – consideration of factors relevant to venue – venue for trial to be Sydney
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act 1986 Director of Public Prosecutions Act 1986 District Court Act 1973 Evidence Act 1995 Jury Act 1977 Native Vegetation Act 2003 District Court Rules   Practice Note SC CL2 Supreme Court Common Law Division - Criminal Proceedings
Cases Cited:	Lemon v Attorney General (1932) 50 WN (NSW) 19 Potts v R [2012] NSWCCA 229; 227 A Crim R 217 R v Cattell (1968) 86 WN (Pt 1) (NSW) 391 R v Dorrington [1969] 1 NSWR 381 R v Holden (1956) 73 WN (NSW) 444 R v Iaria and Panozzo [2004] VSC 96; 9 VR 425 R v Leitch [1998] 1 NZLR 420 R v Vandergulik [2008] VSC 17 R v Vjestica [2008] VSCA 47; 182 A Crim R 350
Texts Cited:	Blackmore and Hosking, Criminal Law (NSW), Thomson Reuters
Category:	Procedural and other rulings
Parties:	Regina (Crown) Ian Robert Turnbull (Accused)
Representation:	Counsel: Mr J McLennan SC (Crown) Mr T Alexis SC; Ms JL Roy (Accused)   Solicitors: Office of the Director of Public Prosecutions (Crown) Cole & Butler (Accused)
File Number(s):	2014/223920
Publication restriction:	---

Judgment

1. JOHNSON J: On 4 December 2015, the Accused, Ian Robert Turnbull, was arraigned in this Court upon an indictment containing two counts:

1. that on 29 July 2014, at Moree in the State of New South Wales, he did murder Glendon Turner;

2. that on 29 July 2014, at Moree in the State of New South Wales, he did, without consent, detain Robert Strange with the intention of obtaining an advantage, namely, the killing of Glendon Turner.

2. A plea of not guilty was entered on the murder count, with the Accused not being arraigned on the second count at the request of the parties.

3. Thereafter, for the purpose of fixing a trial date, a discussion ensued as to the appropriate venue for the trial. Mr Alexis SC, for the Accused, submitted that a trial was appropriate at Moree or, alternatively, Dubbo or Armidale. The Crown submitted that the trial should proceed in Sydney.

4. In light of this controversy, the Court gave directions for the filing of a Notice of Motion concerning venue together with evidence and written submissions, with a hearing being fixed on that issue for 18 December 2015.

5. The venue issue was considered by the Court on 18 December 2015. At the outset, I indicated that a trial listing in April 2016 was available, but that the available venues for a trial at that time were Moree or Sydney.

6. At the conclusion of the hearing, I indicated that I was well satisfied that the venue for the trial should not be Moree, and that the Court was in a position to list the trial in Sydney in April 2016. I fixed the trial to commence on 4 April 2016 with an estimate of three-to-four weeks.

7. I stated that I would publish my reasons on the venue issue early in the 2016 Law Term. What follows constitutes my reasons on the question of venue.

The Venue Application

8. By Notice of Motion filed 15 December 2015, the Crown sought that the venue for the trial be a venue other than Moree, with the application proceeding upon the basis that the Crown sought a Sydney venue.

9. The Crown relied upon affidavits of Mark Julian Alexander Dight sworn 3 November 2015 and affidavits of Detective Senior Constable Timothy McCarthy affirmed 28 October 2015, 10 December 2015 and 18 December 2015.

10. In addition, the Crown tendered a folder containing extracts from Parliamentary debates concerning the Native Vegetation Bill 2003 and the Native Vegetation Amendment Bill 2014 (Exhibit A) which was admitted, subject to relevance.

11. Senior counsel for the Accused read the affidavit of Sylvester Martin Rodrick Claudius Joseph sworn 14 December 2015.

12. Helpful written submissions had been filed on behalf of the Crown and the Accused.

The Crown Case

13. It is appropriate to refer to the Crown case against the Accused. What follows is drawn from the Crown Case Statement. It is, of course, a narrative of the Crown allegations and not any finding or findings of fact by the Court.

14. The incident in question occurred in the late afternoon of 29 July 2014 on public land adjacent to Talga Lane, a public road in the Croppa Creek area of northern New South Wales, about 60 kilometres north of Moree.

15. The Accused was 79 years old at the time of the incident. He is a farmer and land owner. The Accused had been prosecuted for illegal land clearing under s.12 Native Vegetation Act 2003, said to have occurred between November 2011 and January 2012. The Crown alleges that the Accused was deeply angered by the prosecution, which was a lengthy and expensive process, and that the Accused resented what he saw as interference with his farming operation.

16. Mr Turner, the deceased, was 51 years old at the time of the incident. He was employed as a Compliance and Regulation Officer for the Office of Environment and Heritage, Department of Premier and Cabinet. His role involved investigating illegal land clearing and prosecuting individuals for breaches of s.12 of the Native Vegetation Act 2003.

17. The Crown alleges that Mr Turner had been involved in monitoring illegal clearing on the Accused’s property, and had prosecuted the Accused in the two years running up to the incident. It is alleged that the Accused resented the prosecution and that there was ongoing animosity on behalf of the Accused towards Mr Turner.

18. The Crown alleges that, in the course of an incident on 28 June 2012, the Accused threatened Mr Turner. As a result of this alleged threat by the Accused, Mr Turner had been instructed not to have further contact with him.

19. On the afternoon of 29 July 2014, Mr Turner and a work colleague, Robert Strange, were performing duties in the Croppa Creek area. Mr Turner and Mr Strange were on route to a site unrelated to the Accused. As they travelled along Talga Lane, the Crown alleges that they noticed a number of fires burning, consisting of cleared trees, on a property owned by the Accused’s son, Cory Turnbull.

20. At about 4.56 pm, the vehicle containing Mr Turner and Mr Strange passed another vehicle driven by Ivan Maas, an employee of the Accused. The Crown alleges that Mr Maas recognised Mr Turner, and soon after called a colleague, Scott Kennett, indicating that he had seen Mr Turner in that location.

21. The Crown alleges that between 5.00 pm and 5.05 pm, Mr Kennett advised the Accused that Mr Turner and another person were in the area and indicated their location.

22. Soon after 5.00 pm, Mr Turner and Mr Strange stopped on County Boundary Road to take some photographs and GPS waypoints. Shortly before 5.15 pm, Mr Turner and Mr Strange drove to a point about 500 metres from the scene of the subsequent shooting and stopped. Mr Strange took a number of photographs and the men returned to their vehicle.

23. At about 5.22 pm, the Accused arrived at the scene. Based on the account of Mr Strange, the Crown alleges that Mr Turner and Mr Strange were looking onto the property when a vehicle pulled up behind them. Mr Strange saw the Accused standing near the vehicle about 10 metres away. The Accused raised a .22 calibre rifle and shot Mr Turner once in the neck. Mr Turner dropped to one knee and said “Ian, what are you doing?”. Mr Turner managed to stand up, but was shot a second time in the upper-left chest region. Mr Turner stumbled towards his work vehicle to take cover from further gun fire.

24. The Crown alleges that the Accused then said “You have ruined the Turnbulls, you have had planes flying over here taking photographs, continually harassing us and taking us to court”. Mr Strange then said “Sir, he is hurt and I need to get him help. Please let me take him and get some help”. Mr Strange continued “Sir please this is not helping anyone, put the gun down and let us go”. Mr Strange again tried to get closer to the Accused, but the Accused pointed the rifle at Mr Strange and said “You will be shot if you don’t back up”.

25. The Accused then walked towards the rear of the vehicle pointing the rifle towards Mr Turner. He then fired two shots through the canopy window, shattering the glass. One bullet hit Mr Turner in the chest area and penetrated his clothing, but not his skin. The second of those two shots did not hit Mr Turner.

26. The Accused continued to point the rifle at Mr Turner and moved to the rear of the vehicle in an attempt to get a clear path to him. Mr Strange then said “Sir, I’m begging you, put the gun down and let me take him to hospital, you have hurt him and he needs some help”.

27. By this stage, the Accused was at the rear of the vehicle and fired another shot in the direction of Mr Turner. Mr Turner attempted to run towards the tree line and the boundary to escape from the Accused, but the Accused shot him in the back and Mr Turner fell to the ground. That shot was fatal.

28. The Crown alleges that the Accused then said to Mr Strange “You can go now. I’ll be at home waiting for the police”. The Accused then got in his vehicle and left the scene.

29. The Crown alleges that, on his way home, the Accused communicated with Mr Kennett over the two-way radio, saying to him “You there Scott? I’ve just shot Turner, I think he’s dead. I’m going home to wait for the police”.

30. The Crown alleges that the Accused, in the course of a conversation that evening as to why he had shot Mr Turner, said “I had no choice, he was ruining my family and it was never going to end”.

31. The Accused was arrested by police later that evening.

32. The Crown alleges that the Accused fired his rifle at Mr Turner with the intention of killing him in revenge for Mr Turner’s investigation into the Accused’s land clearing activities in the Croppa Creek area.

Partial Defence of Substantial Impairment

33. At the hearing on 18 December 2015, the Court was informed that the issue at trial will be substantial impairment.

34. In considering the venue for trial by jury, it is useful to keep in mind the nature of the partial defence of substantial impairment and the role of the jury in considering that issue. In Potts v R [2012] NSWCCA 229; 227 A Crim R 217, with the agreement of MClellan CJ at CL and Fullerton J, I said at 224 [29]-[35]:

“29 Section 23A(1) Crimes Act 1900 permits a person tried for murder to be convicted of manslaughter in the following circumstance:

‘(1)    A person who would otherwise be guilty of murder is not to be convicted of murder if:

(a)    at the time of the acts or omissions causing the death concerned, the person’s capacity to understand events, or to judge whether the person’s actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and

(b)    the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.’

30   ‘Underlying condition’ is defined in s.23A(8) as meaning ‘a pre-existing mental or physiological condition, other than a condition of a transitory kind’.

31   The onus lies upon the accused person to prove (on the balance of probabilities) that he or she is not liable to be convicted of murder by virtue of the section: s.23A(4).

32   For the purpose of s.23A(1)(b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible: s.23A(2).

33   It has been said that the issue under s.23A(1)(b) is a task for the tribunal of fact, which must approach that task in a broad commonsense way, involving a value judgment by the jury representing the community, and not a finding of medical fact: R v Trotter (1993) 35 NSWLR 428 at 431. It is often put to juries (as it was here) that an impairment is substantial if it is such as warrants the reduction of the crime from murder to manslaughter: R v Trotter at 431; R v Ryan (1995) 90 A Crim R 191 at 195; R v Majdalawi [2000] NSWCCA 240; 113 A Crim R 241 at 243 [10]-[11]. In R v Majdalawi, Adams J observed (at 247 [36]) that the ‘value judgment by the jury representing the community’ to which Hunt CJ at CL referred in R v Ryan ‘is a decision about culpability’ and hence ‘is not a medical question’.

34   The directions of Kirby J to the jury in the present case (which were not challenged on appeal) illustrate the way in which a jury is invited to determine the s.23A(1)(b) issue. Kirby J directed the jury that the distinction between murder and manslaughter ‘is both a legal distinction and a moral one’ (SU66). Manslaughter is regarded as ‘having less culpability than murder and it is, therefore, punished less severely’ (SU66). If that ‘incapacity did so operate and did impair him, then his moral blameworthiness would be reduced by reason of that impairment and the appropriate verdict would be manslaughter’ (SU68).

35   Section 23A(1)(b) has been described as giving rise to ‘an issue which is quintessentially one for the determination of a jury’: R v Hucker [2002] NSWSC 1068 at [2] (Howie J).”

Submissions on the Venue Issue

Submissions for the Crown

35. The Crown submissions noted that there may be a question whether the Attorney General’s discretion to select venue (referred to in older authorities) had survived the passing of the Director of Public Prosecutions Act 1986. The Crown noted, without pressing for determination, that a submission may be available that the selection of the venue for trial is incidental or conducive to the exercise of the principal functions of the Director of Public Prosecutions, for the purpose of ss.7 and 20 Director of Public Prosecutions Act 1986.

36. Having flagged these matters, the Crown was content to proceed on the basis that ordinarily, as a rule of practice, a trial will proceed in the district in which the offence is alleged to have been committed. It was submitted that, however powerful the considerations favouring a local trial may be, they must give way to the paramount requirement that the trial of an accused person should be fair to all the parties: R v Vjestica [2008] VSCA 47; 182 A Crim R 350 at 353 [3]; R v Cattell (1968) 86 WN (Pt 1) (NSW) 391 at 395-396.

37. For the purpose of s.30 Criminal Procedure Act 1986, the Crown submitted that the venue of trial should be moved from Moree to Sydney on the basis that:

1. a fair or unprejudiced trial cannot otherwise be had: s.30(a);

2. further, it is otherwise expedient for the venue to be changed: s.30(b).

38. In light of the material contained in Crown affidavits, the Crown submitted that it had been established that a fair trial cannot be had at Moree, by reason of local prejudice or by reason of widespread prejudice among the class from which the jurors are to be selected, or because local prejudice might be thought to exist.

39. The Crown submitted that there is, at least, a strong perception of prejudice in favour of the Accused and, in particular, what is perceived to be his stance against the native vegetation laws.

40. The Crown submitted that the evidence suggests that the very existence of those laws has created a strong feeling of resentment against those whose responsibility it is to enforce that legislative regime. Given that it is the Crown case that the motive for the shooting of Mr Turner was his role as an enforcement officer, the Crown submitted that it is unavoidable that the context of the trial will involve evidence of the prosecution of the Accused by Mr Turner for breaches of the Native Vegetation Act 2003.

41. It was submitted for the Crown that, in determining this application, the Court should seek to “ensure that not only would a fair trial be had in fact, but that it should be had in such circumstances that all reasonable men would so admit”: R v Cattell at 396; R v Iaria and Panozzo [2004] VSC 96; 9 VR 425 at 426-427 [5].

42. The Crown submitted that the application did not depend upon the Crown establishing that pretrial publicity concerning the facts are such that a fair trial has been prejudiced. Rather, it is what the pretrial publicity reveals about what is said to be the pre-existing prejudice, and deep divisions within the community, that is important.

43. The Crown pointed to statements made by various members during the Parliamentary debates for the Native Vegetation Bill 2003 and the Native Vegetation Amendment Bill 2014, as fortifying a conclusion that there were strong feelings, adverse to the native vegetation laws, held by rural communities, including the Moree community.

44. It was submitted for the Crown that the difficulties revealed by the evidence in this case could not be met by appropriate directions from the trial Judge.

45. It was submitted that the issue of substantial impairment appeared to be the real issue in the trial. To the extent that Moree witnesses may give evidence at the trial bearing upon this issue, then the jury would not only be asked to assess the partial defence of substantial impairment, but the credibility of witnesses living in the same district as themselves, and who may well be known to them directly or indirectly.

46. The Crown submitted that to move the venue of the trial to Sydney would have the effect of neutralising any prospect of jurors having had personal contact with the deceased during the course of his employment, and also neutralise as an emotive issue the native vegetation laws.

47. With respect to s.30(b), the Crown relied, as well, upon the evidence of difficulties in assembling sufficient potential jurors in Moree in recent years. It was submitted that this feature supported a conclusion that it was expedient for the venue of the trial to be changed.

Submissions for the Accused

48. Mr Alexis SC, for the Accused, submitted that no proper basis had been demonstrated for the trial being held at a place other than Moree. He submitted that local publicity was insufficient to warrant a change of venue. It was submitted that the Court should attribute to jurors in a country town a sufficient understanding of their oaths in trying a case, to be guided by the evidence, and the evidence only.

49. With respect to the local feelings alleged to exist concerning native vegetation laws, it was submitted that the context of the alleged offence is the land clearing on the Accused’s family’s properties, and that this was an unavoidable part of the trial.

50. It was submitted that only three short media reports published on 31 July 2014 were relied upon by the Crown. These articles made no comments concerning the Accused’s culpability and made no comments favourable to the Accused.

51. Insofar as comments were reported from the Mayor of the Moree Plains Shire Council, Katrina Humphries, it was submitted that the article had expressed horror that things had broken down so badly as to come to violence, but did not justify the actions of the Accused.

52. Mr Alexis SC submitted that the limited media coverage in no way suggested that a Moree jury would be unfairly biased and needed direction.

53. It was submitted for the Accused that the present trial will be no different to other trials that occur in regional communities. It was noted that the matter in issue will be the question of substantial impairment, a quintessential jury question. There would be very few disputes as to facts requiring members of the jury to come to a view about the credibility of persons in the community. It was submitted that the Accused should be tried by a jury of his peers in the district where the offence occurred.

48. With respect to the issue of expedience under s.30(b), it was submitted that the Moree Court House had adequate facilities to hold a Supreme Court jury trial.

49. Mr Alexis SC submitted that it is in the public interest that an offence would ordinarily be tried in the district in which it is alleged to have been committed.

50. He submitted that the Crown had not established that there is a real risk that a trial held in Moree will not be fair, or that any such risk cannot be controlled by the procedures of the trial. He submitted further that witness convenience and expense were also important considerations and that these matters did not favour a change of venue.

Decision

The Statutory Test for Change of Venue

57. Section 30 Criminal Procedure Act 1986 provides as follows:

“30    Change of venue

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.”

58. Section 30 has a long history, having been located previously in s.13 Criminal Procedure Act 1986 and, before then, in s.577 Crimes Act 1900.

59. The provision has been referred to in decisions of Courts made prior to the enactment of the Director of Public Prosecutions Act 1986. Those decisions emphasised that it was the Attorney General who had the primary responsibility and power in selecting the venue of trial, and that his or her right would not be lightly interfered with: Lemon v Attorney General (1932) 50 WN (NSW) 19 at 19-20; R v Holden (1956) 73 WN (NSW) 444 at 445; R v Dorrington [1969] 1 NSWR 381 at 382.

60. The Crown did not advance a submission, which called for any determination, that the enactment of the Director of Public Prosecutions Act 1986 operated to place the Director of Public Prosecutions in the shoes of the Attorney General with respect to venue for trial: cf Blackmore and Hosking, “Criminal Law (NSW)”, Thomson Reuters, paragraph [4.1150].

61. What may be noted, however, is that cases in this State which have emphasised the exercise of discretion by the Attorney General with respect to trial venue are no longer apt, given the absence of any function of the Attorney General concerning selection of trial venue in the contemporary criminal justice system.

62. The matter proceeded on the understanding that s.30 has application to this case, and that the Court should apply relevant principles attaching to that provision in resolving the question.

63. The parties accepted that the change of venue function in s.30 Criminal Procedure Act 1986 applies equally to the Supreme and District Courts.

64. With respect to indictable criminal matters which are to proceed in the District Court, it is the practice that an accused person is committed for trial to the nearest proclaimed place where the District Court is to sit, in accordance with directions made by the Chief Judge of the District Court for the purpose of s.173 District Court Act 1973; Rules 7, 10(2)(f), Part 53, District Court Rules.

65. In the case of matters which are to proceed in the Supreme Court, all accused persons are committed for trial to appear in the Arraignments List in Sydney sitting usually on the first Friday of each month between February and December: clause 5-6, Practice Note SC CL2 Supreme Court Common Law Division - Criminal Proceedings.

66. In the case of the Supreme Court, it is a question for the Judge fixing a matter for trial in the Arraignments List to nominate a venue, with that decision being made in the light of a variety of factors which may bear upon that question as raised by the parties following arraignment.

67. The present application is not one to change a venue for trial already fixed by the Court. Rather, it is one to determine the appropriate venue for trial following the arraignment of the Accused.

68. The presumption in favour of a local trial is a rule of practice and not a rule of law: R v Vjestica at 353 [3].

69. Each application for change of venue (or for trial other than a local trial) falls to be considered on its own merits, without preconceptions. It is not necessary for an applicant to show exceptional circumstances. Nor is the applicant to be regarded as bearing a heavy onus. 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: R v Vjestica at 353 [4].

70. Many factors may bear upon the assessment of merits. I agree with the following observations of Teague J in R v Vandergulik [2008] VSC 17 at [6]:

“In short, each application must be considered on its own merits. ‘Merits’ can involve consideration of many factors, including but not limited to fairness, the perception of fairness, local concerns, pre-trial publicity, inconvenience, and health. A trial should ordinarily proceed in the district in which the offence charged is alleged to have been committed. On the other hand, and in my assessment, relatively more importantly a trial should be held in such circumstances that all reasonable men would admit that a fair trial could be held.”

71. The term “expedient” is used in s.30(b) Criminal Procedure Act 1986. In R v Leitch [1998] 1 NZLR 420 at 428-429, Richardson P (in the judgment of the Court) said:

“`Expedient’ is frequently used in statutes – according to a computer check it appears 1116 times in the statute book. While there may be shades of meaning of the word, depending on the context, reference to standard dictionaries brings out its basic meaning: The Oxford English Dictionary (2nd ed): ‘Conducive to advantage in general, or to a definite purpose; fit, proper, or suitable to the circumstances of the case'; more expansively, Webster's Third New International Dictionary definition is ‘characterized by suitability, practicality, and efficiency in achieving a particular end: fit, proper, or advantageous under the circumstances’; Black's Law Dictionary (5th ed) definition is: ‘Apt and suitable to end in view. . . . Whatever is suitable and appropriate in reason for the accomplishment of a specified object’'; and closer to home The Macquarie Dictionary gives as the primary meaning: ‘tending to promote some proposed or desired object; fit or suitable for the purpose; proper in the circumstances’.”.

72. As 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. In the present case, 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.

The s.30(a) Issue - Fair or Unprejudiced Trial

73. There are some most unusual features to this application. The evidence indicates the expression of a significant level of community feeling in the Moree district concerning the native vegetation laws, and the impact of those laws upon the local rural community.

74. In the course of an article in “The Daily Telegraph” dated 31 July 2014 (Annexure C, affidavit of Mark Dight, 3 November 2015), the following appears:

“Moree Plains Shire Council Mayor Katrina Humphries said the relationship between conservationists, the government and local farmers had become toxic: ‘Ian [the Accused] is a well known and respected member of the community - he has been part of the community forever. I’m horrified things have broken down so badly’.

…

Agricultural Minister Barnaby Joyce endorsed the Mayor’s comments, saying the situation on the land ‘has a very hostile environment’.

He said farmers hated native vegetation laws, which had created incredible animosity towards the government.

‘This is not an isolated incident, this is just the worst of a range of incidents’, he said.

Ecologist Phil Spark, who has worked in the Croppa Creek community, said some land owners knew they couldn’t afford to lose another tree. But others were clearing vegetation to take advantage of the rich agricultural soil and there was friction between the groups: ‘There is a lot of fear and threats’.”

75. In an article in “The Sydney Morning Herald” dated 31 July 2014 (Exhibit D, affidavit of Mark Dight, 3 November 2015), the following appears:

“In 2010, talkback host Alan Jones made an ominous prediction regarding the growing stoush between NSW farmers, who were defending their right to remove vegetation on their own properties, and environmentalists, who believed significant clearing was doing irreversible damage.

‘The behaviour of this department is the kind of behaviour that leads people to murder’, he said of the supposedly heavy handed way the Department of Environment and Climate Change was enforcing the Native Vegetation Act.

Tensions over illegal clearing at Croppa Creek, which includes a koala habitat, has led to previous threats to Mr Turner and other departmental workers, Fairfax Media has learnt.

State and federal governments had investigated clearing on the Turnbulls land since 2011 but it did not stop, said ecologist, Phillip Spark, who has documented changes there over three years.

…

Northwest NSW has been a ‘hotbed’ for the bitter stoush over land clearing, Total Environment Centre Executive Director Jeff Angel said.

‘Some of those farmers feel very strongly about private property rights but the fact is almost 10 years … the rate of clearing is equal to that of some South American countries in soil resources and dozens of threatened species were in danger so there was a reason to intervene’, he said.

Moree Plains Shire Mayor Katrina Humphries said the frustration had become so intense violence was ‘always going to happen’.

‘I thought it would happen over coal or gas or water’, she said. ‘The frustration is so great, but obviously to have an outcome like that is so horrible. What are we doing, as communities, as Australians, what are we doing that a tragedy like this happens through absolute frustration?’”

76. In an article in “The Northern Daily Leader” dated 31 July 2014 (Annexure E, affidavit of Mark Dight, 3 November 2015), the following appears:

“The issue has been simmering for years in the local area as the debate rages on about the clearing of vegetation.”

77. The hearsay rule does not apply to this evidence adduced on the present interlocutory application: s.75 Evidence Act 1995. This evidence indicates, in my view, a long-standing level of tension in the community in the Moree district with respect to native vegetation laws. This is not a transient state of affairs. This is an unusual and significant factor in the determination of this application.

78. The extracts from the Parliamentary debates surrounding the Native Vegetation Bill 2003 and the Native Vegetation Amendment Bill 2014, to which the Court was taken during argument, serve to fortify the conclusion that there are strong community feelings in rural areas, including the Moree district, with respect to native vegetation laws. To that extent, the Parliamentary debates are relevant to this application.

79. I am satisfied that there is a very real concern as to whether a trial, which would be regarded as a fair trial by all reasonable persons, can be held if the trial venue was Moree.

80. The process of jury selection, and directions to the jury by the trial Judge might ameliorate the position to an extent. However, there is at least a reasonable perception that there will not be a fair trial, being a trial which is fair to both the Crown and the Accused.

81. It is appropriate to move to matters which bear upon s.30(b) of the Act, before determining the issue of the appropriate trial venue.

The s.30(b) Issue - Expedient for any Other Reason

82. A number of factors were addressed for the purpose of s.30(b) of the Act. These included witness availability and witness convenience, cost and the interests of Mr Turner’s family and the Accused’s family so far as the location of the trial is concerned.

83. A further and important factor addressed in the evidence was the suggested difficulty in empanelling a jury for the purpose of a trial at Moree. The Court was informed that there had not been a Supreme Court jury trial at Moree for some 20 years. However, the District Court sits at Moree from time to time for the purpose of criminal jury trials.

84. The evidence indicates that the Moree Court House has facilities which enable its use for a criminal trial involving a jury of 12 persons.

85. However, the evidence also indicates that there have been difficulties in empanelling a jury at the Moree District Court in recent times because of insufficient numbers of potential jurors attending.

86. The affidavit of Detective Senior Constable McCarthy affirmed 18 December 2015 indicates the position as expressed by Ms Carol Bell, who has worked in the Office of the Sheriff at Moree Court House for some 22 years. She states that there have been problems empanelling a jury at Moree. Ms Bell explained that this was not necessarily because potential jurors did not comply with their summonses, although that does occur. Rather, Ms Bell stated that most potential jurors who are excused from jury duty in Moree are excused because they live outside the 65 km zone, have work or travel commitments or have children to care for.

87. In support of this was information concerning a number of jury panels called for jury duty at the Moree District Court in 2015. A trial listed in March 2015 could not proceed as a jury could not be empanelled, with the matter thereafter being transferred to Dubbo District Court.

88. During the October 2015 sittings at Moree, the trial of three men from Narrabri was unable to proceed as a jury was not able to be empanelled.

89. It was submitted for the Accused that any concerns in this respect could be met by summonsing additional jury panels, so as to increase the number of persons required to attend. On the evidence before the Court, I am not at all sure that this would be of great assistance in the present context.

90. The difficulty appears to have been the large number of potential jurors who have been excused for reasons associated with distance from the Moree township, and matters related to employment and family commitments. The Crown informed the Court that April is the cotton harvesting season in Moree (T26, 18 December 2105). This aspect would further complicate the position with respect to the availability of members of the local rural community.

91. Added to this is the reasonable expectation that a considerable number of persons, attending as potential jurors, would have some association with the Accused and his family or a Crown witness or witnesses. A further aspect in this case would involve the trial Judge informing the jury panel that persons with views concerning the native vegetation laws, which would impact upon a person’s capacity to act in a fair and unprejudiced fashion in trying the Accused, should apply to be excused.

92. In assessing factors relevant to s.30(b), I have had regard to practical issues including cost, witness location and availability, the witnesses likely to be required (given the issues in the trial) and the wishes of the families of Mr Turner and the Accused concerning trial venue.

93. An important issue for the purpose of s.30(b) is the practical question as to whether the processes of the Jury Act 1977 will, in this case, provide sufficient potential jurors for the trial to actually proceed in Moree. Upon the evidence on this application, there is a very substantial concern that the Court would not be in a position to empanel a jury at any trial of the Accused at Moree in April 2016.

94. In these circumstances, this is an additional important factor under s.30(b) pointing away from a Moree venue, to be considered together with the conclusion reached by the Court concerning the “fair or unprejudiced trial” factor under s.30(a) Criminal Procedure Act 1986.

95. I note that the Court has not had regard to any possible difficulty which may arise surrounding the Accused’s health if the trial was held at Moree. Although there was some discussion concerning this topic at the hearing on 18 December 2015, it was stated by Mr Alexis SC, that if this issue was to assume importance, an opportunity would be sought to adduce further evidence. The issue has not played any part in my determination concerning venue.

96. I have kept in mind the desire of the Accused for a trial at the earliest available time. That consideration involves a trial in April 2016 with, as I have said, the issue being the appropriate venue for the trial.

Conclusion

97. Having considered the matters arising for consideration on this application under s.30(a) and (b) Criminal Procedure Act 1986, I am well satisfied that the venue for this trial should not be Moree. Given the strong desirability of a trial in April 2016, the venue for the trial is to be Sydney.

98. It was for these reasons that I made an order on 18 December 2015 directing that the trial of the Accused proceed at the Supreme Court in Sydney in April 2016.

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Decision last updated: 30 May 2016