Citation: R v Hawi & ors (No 7) [2011] NSWSC 1653
Court: Supreme Court of New South Wales
Date: 19 May 2011
Judge: R A Hulme J
Background
The accused were on trial in the Supreme Court in connection with events at the Qantas Domestic Terminal (Terminal 3) at Sydney Airport on 22 March 2009. The Crown alleged that some accused participated in an affray near Gate 5, and that a subsequent riot and murder occurred in the terminal's departure hall.
A complicating factor was that significant renovations had taken place at the terminal after the events in question. Most notably, the check-in counters around which the riot allegedly occurred had been completely removed and relocated.
The Crown applied for the jury to be taken on a supervised inspection of the terminal under section 53 of the Evidence Act 1995. Counsel for the accused were divided: some opposed the application, some supported it, and others declined to be heard.
Legal Issues
- Whether the court should order a jury inspection of the crime scene under section 53 of the Evidence Act 1995
- Whether material alterations to the scene since the alleged offences were sufficient to make an inspection misleading or of limited utility
- Whether an adequate body of alternative evidence (CCTV footage, scale plans, photographs, witness accounts) would render a view unnecessary
Decision
Hulme J granted the Crown's application and ordered an inspection of Terminal 3. His Honour was satisfied that a firsthand view would assist the jury in understanding the evidence, particularly given the large number of witnesses (approximately 140) who would give evidence about what they observed from varied vantage points throughout the terminal.
On the question of material alteration, his Honour acknowledged the risk that the changed layout could make the inspection misleading. However, the Crown proposed to mark out on the floor the former positions of the removed check-in counters, so that jurors could appreciate where those counters had stood on the day of the alleged offences. His Honour was satisfied that this measure would adequately address the risk of the inspection being misleading.
His Honour also noted a practical consideration favouring a supervised view: jurors could not realistically be prohibited from visiting the public terminal on their own during the trial. A court-sanctioned inspection, accompanied by accurate explanations of changes to the scene, was preferable to the risk of jurors making their own unsupervised assessments without proper context.
On the question of timing and logistics, his Honour ordered that the inspection take place on a Tuesday at midday, identified as the quietest time at the terminal, in preference to out-of-hours options that would have imposed undue inconvenience on jurors given travel time to and from Mascot.
Orders Made
- An inspection be held at Terminal 3 at Sydney Airport.
Key Takeaways
- Under section 53 of the Evidence Act 1995, a court may order an inspection where it is satisfied the inspection will assist in resolving issues of fact or understanding the evidence, and where the risk of unfair prejudice, confusion, or misleading the jury can be managed.
- Material alteration of a crime scene does not automatically defeat an application for a view. Where steps are taken to accurately represent the former state of the location (such as marking out removed fixtures), the court may be satisfied that the risk of a misleading inspection is adequately addressed.
- The existence of substantial alternative evidence such as CCTV footage, photographs, scale plans, and eyewitness accounts does not preclude an order for an inspection. Hulme J accepted that a firsthand view can provide a quality of understanding that documentary evidence alone may not replicate.
- Following R v Milat, the accused are not required to attend a view, but must be given the opportunity to do so. In this case, all accused had indicated they did not wish to attend.
- The practical reality that jurors may independently visit a publicly accessible crime scene is a consideration that weighs in favour of a supervised, court-sanctioned inspection with proper explanations, rather than against ordering one.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 53
Cases
- R v Milat, NSWSC, 12 April 1996 (unreported)