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Supreme Court 17 June 2013

R v Jacobs (No 4)

[2013] NSWSC 945

Other
CRIMINAL LAW PROCEDURE APPLICATION FOR VIEW NOT INSUBSTANTIAL COST RELOCATION OUGHT NOT PREJUDICE CROWN ACCUSED ENTITLED TO BE PRESENT AT VIEW

Citation: R v Jacobs (No 4) [2013] NSWSC 945
Court: Supreme Court of New South Wales
Date: 17 June 2013
Judge(s): Button J

Background

The accused stood trial in Sydney on a serious charge involving an alleged shooting in Tamworth, approximately 400 kilometres away. The trial had originally been listed in Tamworth but was relocated to Sydney to protect the accused's right to a fair trial.

The Crown Prosecutor applied under s 53 of the Evidence Act 1995 for the entire court, including the jury, to travel to Tamworth to inspect several sites relevant to the evidence. These included the scene of the shooting, a nearby service station, and the road network connecting those locations.

Defence counsel did not strenuously oppose the application but raised several practical and evidentiary concerns for the court's consideration.

  • Whether a view of the crime scene and related sites in Tamworth should be ordered under s 53 of the Evidence Act 1995
  • Whether the cost and logistical difficulty of travelling 400 kilometres justified refusing the application
  • Whether the accused was entitled to be present at the view, and how that presence could be facilitated
  • Whether the defence should have an opportunity to inspect the proposed sites beforehand
  • Whether there was a risk the jury might misuse or place undue weight on what it observed during the view

Decision

Button J granted the application, finding that seven factors weighed in favour of conducting the view. Photographs in evidence, while extensive, could be misleading about depth and distance and could not capture every relevant detail. Personal inspection of a scene generally enhances understanding, and the central issue at trial, namely whether the accused or another person who fled was the shooter, made the layout of the scene and features such as fence heights directly relevant to the jury's fact-finding task.

The judge acknowledged the cost involved, estimated at approximately $12,500 in total, as not insignificant, but concluded it was not enormous when considered in the context of the overall cost of the trial, particularly given it was already being conducted in Sydney. The use of a charter aircraft for the jury addressed concerns about proper insulation from members of the public.

Button J addressed the concern that the jury might give undue weight to the view at the expense of courtroom evidence. His Honour considered this risk real but capable of being substantially addressed through careful jury directions, cross-examination, closing addresses, and clear identification of any changes to the scenes since the date of the alleged offence.

Turning to the mandatory considerations under s 53(3) of the Evidence Act, the court was satisfied that all parties, including the accused, would have a reasonable opportunity to be present; that the view would assist the jury in resolving factual issues; that it would not be prejudicial, misleading, or confusing; and that the time involved would not constitute an undue waste of time. The view was not to proceed in the absence of the accused if he wished to attend.

Orders Made

  • The application for a view, consisting of an inspection of various sites in Tamworth, was granted.
  • The jury was to be given two or three possible dates and asked to decide collectively which suited them best, given the day was likely to start earlier and finish later than usual.

Key Takeaways

  • Under s 53 of the Evidence Act 1995, a court may order a view where it is satisfied the mandatory statutory considerations are met, including that the view will assist the jury with factual issues and will not be prejudicial, misleading, or an undue waste of time.
  • Significant logistical cost and difficulty are relevant considerations but will not automatically defeat a view application, particularly where the charge is serious and the scene is directly relevant to the central contested issue.
  • The Court confirmed, consistent with Jamal v R [2012] NSWCCA 198, that a view forms part of the trial and an accused who wishes to be present is entitled to attend.
  • A concern that jurors may place excessive weight on their own impressions from a view does not require the application to be refused; it is a risk that can be substantially managed through directions, cross-examination, and evidence about changes to the scene.
  • Relocating a trial in the interests of the accused does not, in itself, justify limiting the Crown's ability to present evidence comprehensively, including through a view at the original location.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 53 (view) and s 53(3) (mandatory considerations)

Cases
- Jamal v R [2012] NSWCCA 198 (accused's right to be present at a view as part of the trial)