Citation: R v Rogerson; R v McNamara (No 10) [2015] NSWSC 1067
Court: Supreme Court of New South Wales
Date: 6 August 2015
Judge: Bellew J
Background
Two accused, a former police officer and his co-accused, faced trial on charges of murdering a young man on 20 May 2014 and supplying a large commercial quantity of methylamphetamine on the same day. The Crown alleged that the deceased was lured to a storage facility in Padstow under the pretence of a drug transaction, killed inside a storage shed, and his body subsequently transported in a surfboard cover to an apartment complex in Cronulla.
The Crown's case relied heavily on CCTV footage and detailed movements across several locations in Sydney's south, including a shopping strip in Arab Road Padstow, a self-storage complex in Davies Road Padstow, and an apartment car park in Cronulla.
Before the trial commenced, the Crown brought a motion seeking a formal view of the key locations under section 53 of the Evidence Act 1995 (NSW). Both accused supported the application.
Legal Issues
- Whether the court should exercise its discretion under section 53 of the Evidence Act 1995 (NSW) to order a view of multiple locations relevant to the Crown case.
- What procedural safeguards should govern the conduct of such a view, including the role of a nominated "shower," recording requirements, and management of jury questions.
Decision
Bellew J granted the application, finding that a view of the nominated locations would assist the jury in understanding the evidence to be led at trial. His Honour placed particular weight on the complex, multi-site nature of the Crown's case, with events unfolding across several distinct locations over the course of a single afternoon.
The court accepted that the detective in charge of the investigation should act as the "shower," identifying the relevant aspects of each location to the jury in accordance with the evidence given at trial. A court reporter was to be present to record what was said, and the parties had previously been referred to the guidance set out by Priest JA in the Victorian Court of Appeal decision of Ha v R [2014] VSCA 335 concerning best-practice procedures for jury views.
The court endorsed the procedural guidance found in the New South Wales Bench Book, including the importance of creating a transcript and, if practicable, a video recording of the view. This approach ensures an adequate record exists for any appellate review. The court also noted the preferable course for handling jury questions during a view: jurors should submit questions in writing, which the judge then vets in consultation with counsel before putting them to the shower.
Orders Made
- An inspection pursuant to section 53 of the Evidence Act 1995 (NSW) to be conducted during the course of the trial, at a time and date agreed upon by the parties, of the locations set out in Annexure A to the affidavit of Karl Robert Prince affirmed on 31 July 2015.
Key Takeaways
- Under section 53 of the Evidence Act 1995 (NSW), a trial judge may order a jury view where it would assist the jury in understanding the evidence, and the discretion may be exercised even where multiple locations across a broad geographic area are proposed.
- Agreement by all parties, including both accused, is a relevant factor in favour of granting a view, though the court retains its independent discretion.
- The NSW Bench Book's procedural framework for jury views, including the use of a sworn "shower," creation of a transcript, video recording where practicable, and written jury questions vetted by the judge, was endorsed by the court as appropriate best practice.
- Adequate recording of a view is necessary to preserve the appellate record; without it, an appellate court may be unable to properly exercise its review functions.
- Ha v R [2014] VSCA 335 was cited approvingly as a source of practical guidance on the conduct of jury views, indicating that Victorian appellate authority on the subject carries persuasive weight in New South Wales proceedings.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), section 53
Cases
- Ha v R [2014] VSCA 335 (Victorian Court of Appeal)