R v MICHAEL WINSTON SANBY

SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

GRAY A/J

21 May 1991 at Alice Springs.

CRIMINAL LAW - Trial - change of venue - burden on the applicant - matter for exercise of court's discretion - factors considered in exercise of discretion - prejudice - expense - convenience

PRACTICE AND PROCEDURE - trial - change of venue - factors relevant to exercise of discretion

Cases referred to:
Carding v Trembath [1921) VLR 163
R v Knott [1974) QLR 58

Counsel for the Applicant Solicitor for the Applicant

Counsel for the Respondent Solicitor for the Respondent

P. Mccrohan
N.T. Legal Aid Commission

L. Flanagan QC/P.Boyce Office of the DPP

gra91033

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No. 51 of 1990

BETWEEN:

THE QUEEN AND:
MICHAEL WINSTON SANBY

CORAM:	GRAY AJ

APPLICATION FOR CHANGE OF VENUE

REASONS FOR DECISION
(Delivered 21 May 1991)

On 14 August 1989, near Alice Springs, a collision occurred between two hot air balloons.	One of the balloons deflated and fell to earth.	Thirteen persons in the fallen balloon met their deaths.	The other balloon was piloted by Michael Sanby.	After a coronial inquiry, conducted in August 1990, Michael Sanby was committed for trial at
Alice Springs on thirteen counts of manslaughter.	I infer

that the substance of the Crown case is that the accused man was grossly negligent in the handling of his balloon in a way which caused the collision.

The accused now seeks a change of venue of the trial from Alice Springs to Darwin.	Ms  Mccrohan  appeared for the accused to support the application.	The Director of Public Prosecutions, Mr Flanagan QC, appeared to oppose the application.	The Court does have the power to direct a change in the venue of the trial.	It is founded in two separate statutory provisions, each of which gives the Court jurisdiction to make such an order if good cause is shown.

There is evidence that at the relevant time the accused was a tour operator who was widely known in the Alice Springs district.	It is said that he was a man who drew attention to himself by extravagant behaviour for the purpose of generating business.	Apart from the fact that the accused was widely known in that way, he also attracted attention by what I infer was the failure of his tour operator's business following this collision.

Although I have no particular evidence of this, it appears that his business collapsed, leaving a considerable number of unsatisfied creditors.	A list of unsecured Creditors was tendered to the Court, and it shows that the accused has ninety-two creditors, with debts totalling some

$220,000; approximately seventy of those creditors come from the Alice Springs district.	There is no doubt that the tragedy in August 1989 attracted enormous media publicity, both in Alice Springs and elsewhere.	For present purposes, it should be noted that the incident attracted at least as much media publicity in Darwin, as in Alice springs.

In fact, there was probably more media publicity generated in Darwin, if only by virtue of the fact that there is a daily newspaper in Darwin, and only a twice weekly publication in Alice Springs.	Mr Flanagan placed great emphasis on this circumstance and put it that the likelihood of prejudice arising from adverse media publicity was every bit as high in relation to a trial in Darwin as it would in Alice Springs.	But in relation to the likely impact of such publicity, it	should be remembered that the population of Alice Springs is of the order of twenty five thousand people, where as Darwin has more than twice that number.

Furthermore, Darwin is physically remote from the scene of the tragedy.	I have no doubt that the accident did generate great public interest in Darwin, but I am satisfied that such interest would have been far more acute in Alice Springs, the site of the tragedy.	Ms Mccrohan relied upon evidence of a number of articles in the press, and radio broadcasts which reported evidence at the inquest which was highly critical of the accused's handling of his

balloon.	Much of this material merely reflected the Crown case which will be advanced at the trial.

If the material stopped there, it would, in my view, fall short of providing any justification for a change of venue.		But Ms Mccrohan placed particular reliance upon certain highly prejudicial evidence which, from this distance, would appear to be inadmissible upon the accused's trial.	The material that I'm discussing can be broadly described as evidence of careless handling of a balloon by the accused on occasions prior to the fatal occasion.

This evidence was quite striking, and I will make reference to two samples of this class of evidence.	In an article appearing in the Centralian Advocate on 7 February 1990, the following passage occurred:

"In Mr Gaffy's opening address he outlined the incident, the workings of a hot air balloon.	The reports about the incident from relevant authorities, and previous incidents where
Mr Sanby's flying had injured people.	Mr Gaffy said in 1985 Mr Sanby was sued for $25,000 in the Alice Springs Court after one of his passengers had suffered head injuries, injuries to the lumbar spine and deterioration of the nervous system, following a crash landing.	In August 1987,
Mr Gaffy claims three visiting travel agents were in Alice Springs and took flights with Mr Sanby. This flight resulted in broken ankles, and
Mr Sanby's licence to sly being suspended.	In May 1987, a woman suffered a chipped tooth, after she collided with another passenger's head after a rough landing, indicative of what may be described as a Rambo like approach to the flying of balloons by this particular pilot, Mr Gaffy told the inquest."

On 9 February 1990, a further article appeared in the Centralian Advocate, in which the following passage occurred:

"In his opening speech on Monday, counsel assisting the coroner, Mr Frank Gaffy QC, told the inquest that Mr sanby had injured passengers during previous flights.	Mr Gaffy said people had sustained injuries after rough landings by
Mr Sanby, including broken ankles and a chipped tooth.		He said Mr Sanby was sued for $25,000 after one of his passengers had suffered head injuries, injuries to the lumbar spine and deterioration of the nervous system following a crash landing.	On Wednesday, a former employee of Mr Sanby, commercial hot air pilot, Shaun David Darby, 23, told the inquest: "Mr sanby was very laid back in his approach to balloon flying.		He's very laid back about it.	That may be because he's flown more."	Darby told the inquest.	"He just doesn't think too much about others around him.	You've always got to keep an eye on Michael, to watch what he was doing.	It was just  a feeling."

That material, in my view, is likely to have created an impression in the mind of the reader which may well stick in the mind of any such reader who became a juror in this trial, and while it is true that material of that sort doubtless appeared in the Darwin media, I repeat my observation already made as to the reduced impact which would attend such a publication in Darwin.

The law in relation to an application such as the present is not in dispute.	The Attorney General, or in this case, the Director of Public Prosecutions, has the right to select the appropriate venue for a criminal trial. The Court will not disturb that selection unless the

interests of justice clearly require it.	Mr Flanagan QC referred the Court to a number of authorities in which it is emphasised that an applicant, such as the present, bears a substantial burden to persuade the Court that the Crown selection of the trial venue should be disturbed.	The reasons for that emerge from the authorities, namely that prima facie it is desirable that the trial be had in the locality of the commission of a crime, and that ordinarily the balance of convenience favours that course.

However, the test is n?t, in my view, confined to an inquiry whether there is a substantial risk that a juror may have had his mind inflamed by having read or heard prejudicial and inadmissible material.	The question is broader and is really a branch of the truism that justice must not only be done, but also be seen to be done.	I will refer to an oft cited passage from a judgment of Cussen Jin Cording v Trembath [1921] VLR 163, the passage is at page 166, and I quote what the learned judge there said:-

"Then a number of witnesses had said that this matter has been the subject of intense and animated discussion in Bendigo, but it is desirable, in arriving at a conclusion in this matter to be able to go further than that, and to ensure that not only would a fair trial be had in fact, but that it should be heard in such circumstances that all reasonable men would so admit."

That passage has been cited many times in relation to these applications.	It was particularly emphasised in

the case of R v Knott [1974] QLR 58 where Hart J ordered a change of venue upon a Crown application in circumstances not entirely dissimilar to the present.	Very often the Court may be influenced against granting a change of venue because of overwhelming considerations involving expense and inconvenience associated with the moving of large number of witnesses from their ordinary residence to the proposed
venue.

Mr Flanagan placed a good deal of emphasis on this aspect, but to my mind the evidence in this application does not reveal any substantial difficulty in that regard.
There are no doubt considerations operating both ways in relation to pragmatic considerations of this sort, but this case does not appear to have the characteristic of substantial practical difficulty stemming from the change of venue.	Laying at the root of the Crown's opposition to this application was the proposition that no good purpose would be served by a change of venue because the risk of prejudice is no more marked in Darwin than it is in Alice Springs.

I, however, am satisfied that there is a significant risk of the accused's right to a fair trial being prejudiced if the trial remains in Alice Springs.	I am particularly persuaded by the material to which I have referred which relates to the publicity attaching to very prejudicial material which, to my mind, will almost certainly be regarded as inadmissible upon the accused man's

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trial, and for the reasons which I have endeavoured to express I consider that the applicant has made out his case for a change of venue, and I will so direct.