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Supreme Court 30 April 2013

R v Ahola

[2013] NSWSC 698

Homicide
CRIMINAL LAW ACCUSED WAIVES RIGHT TO ATTEND VIEW WOULD ASSIST JURY APPLICATION GRANTED

Citation: R v Ahola [2013] NSWSC 698
Court: Supreme Court of New South Wales
Date: 30 April 2013
Judge(s): Button J

Background

The accused was on trial for the alleged murder of a deceased at a private home in Malua Bay, south of Batemans Bay. He had been bail refused throughout the trial. The Crown alleged he had bashed the deceased to death and that his various accounts of his movements on the night in question were inconsistent with each other and with the physical layout of the home.

The Crown applied for a view of the property and the route between a nearby shop and the home. Defence counsel did not oppose the application. The accused informed his counsel he was waiving his right to attend the view, having been told by the Department of Corrective Services that he would be required to attend handcuffed and possibly with leg fetters, with prison officers in close proximity.

  • Whether the court was satisfied, under section 53 of the Evidence Act 1995, that an inspection should be held
  • Whether the two mandatory factors in section 53(2) were met (the trial judge and jury will be present; parties have been given a reasonable opportunity to attend)
  • Whether the five discretionary factors in section 53(3) supported granting the application
  • Whether the accused's waiver of his right to attend, in circumstances where his presence would be materially prejudicial, was valid and appropriate

Decision

Button J was satisfied that both the mandatory requirements under section 53(2) were met. The trial judge and jury would be present at the view, and both parties had been given a reasonable opportunity to attend. Defence counsel and his instructing solicitor would be present even if the accused himself would not be.

On the accused's absence, Button J noted the Court of Criminal Appeal's decision in Jamal v R and confirmed the accused retained the right to attend if he wished. However, his Honour declined to interfere with the Department of Corrective Services' security arrangements and accepted it was entirely understandable for the accused to waive attendance given the obvious prejudice that would result from appearing before the jury in restraints and flanked by prison officers.

On the section 53(3) factors, Button J was satisfied the view would materially assist the jury in resolving factual issues, particularly around the layout of the home and the time it would take to walk from the shop to the property. No unfair prejudice, confusion, or misleading effect was identified. Although the travel time to Malua Bay would be approximately five hours return, the trial was listed for four weeks, and that cost was considered proportionate.

Button J also noted from his own experience that a physical view of a crime scene aids comprehension in a way that photographs, maps, and other documentary materials cannot replicate.

Orders Made

• The Crown's application for a view of the crime scene is granted
• The view will take place on Thursday 2 May 2013

Key Takeaways

  • Under section 53 of the Evidence Act 1995, a court must be satisfied of both mandatory factors in subsection (2) and must take into account the five factors in subsection (3) before ordering a view, even where the application is unopposed.
  • An accused who is in custody does not forfeit the right to attend a view, but a waiver of that right is legally effective where attendance would expose the accused to conditions (such as visible restraints in front of the jury) that create a real risk of prejudice.
  • Button J confirmed that a trial judge's role does not extend to directing or interfering with the security arrangements imposed by the Department of Corrective Services for a custodial accused attending a view.
  • The absence of a crime scene video, combined with the relevance of physical layout and distances to the Crown's factual theory, can justify a view even where photographs and other forensic materials are available.
  • Travel time and logistical inconvenience are relevant to the section 53(3) analysis, but a five-hour return journey was considered reasonable in the context of a four-week trial.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), section 53

Cases
- Jamal v R [2012] NSWCCA 198