Citation: R v Briggs (No 2) [2014] NSWSC 851
Court: Supreme Court of New South Wales
Date: 3 June 2014
Judge: Button J
Background
The accused faced a single count of murder arising from events on Christmas Eve 2012. The Crown alleged he attended the deceased's home and inflicted a severe beating with a baseball bat, causing the deceased's death two days later.
Two witnesses outside the premises gave statements describing the streetscape layout and identifying the accused's voice from within the apartment block. The defence indicated the real contest at trial would concern the mental elements of murder and the question of self-defence, rather than whether the accused caused the death.
Both parties jointly applied for a view, meaning an in-person jury inspection of the relevant premises, to be conducted during the trial. The application was made under section 53 of the Evidence Act 1995 (NSW), with the court retaining the final discretion to approve or refuse it.
Legal Issues
- Whether the court should exercise its discretion to approve a view under section 53 of the Evidence Act 1995 (NSW)
- Whether the statutory factors in section 53(3) supported or weighed against granting the view
- Whether the accused's choice not to attend the view affected the propriety of granting the application
Decision
Button J worked through each relevant subsection of section 53 in sequence. On the question of the accused's attendance, his Honour confirmed the accused is entitled to be present at any view, and the view would not proceed without him if he were absent involuntarily. Here, the accused chose not to attend, and his counsel indicated this was a deliberate decision. That voluntary absence did not weigh against granting the application.
On whether the view would assist the jury, his Honour accepted submissions from both sides that photographs and plans alone would not fully convey the confined dimensions of the apartment. The defence argued that appreciating the apartment's small size was relevant to whether some of the deceased's injuries could have resulted from contact with furniture or structures rather than direct blows. The Crown pressed the additional utility of allowing jurors to understand the streetscape layout and the distances relevant to the voice identification evidence.
On potential prejudice or waste of time, neither party raised any concern. The scene was said to have changed little since December 2012, and the location was approximately five minutes from the courthouse. Button J noted that any differences between the current scene and its condition at the time of the alleged offence could be addressed by the parties through evidence and submissions at trial.
His Honour concluded that a view would soundly assist the jury in discharging its fact-finding function, particularly given the issues genuinely in dispute, and acceded to the joint application.
Orders Made
- The joint application for an inspection in the form of a view in Armidale is granted.
Key Takeaways
- Under section 53 of the Evidence Act 1995 (NSW), a court retains a discretion to approve or refuse a view even where both parties jointly apply for one.
- An accused person's voluntary choice not to attend a view does not, of itself, provide a reason to refuse the application, provided the absence is genuinely by choice and not compelled.
- The Supreme Court confirmed, consistent with R v Jamal [2012] NSWCCA 198, that if an accused person wishes to be present and is absent, the view will not proceed.
- A view may be warranted where photographs and plans tendered in evidence are insufficient to convey relevant spatial characteristics of a scene, such as the confined dimensions of an apartment relevant to competing accounts of how injuries occurred.
- Minor changes to a scene since the relevant events do not automatically defeat a view application, provided the parties can address any discrepancies through evidence and address at trial.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 53
Cases:
- R v Jamal [2012] NSWCCA 198