Citation: R v Maybir (No 3) [2015] NSWSC 1738
Court: Supreme Court of New South Wales
Date: 22 October 2015
Judge(s): R A Hulme J
Background
The accused stood trial in the Supreme Court in connection with events that occurred at a studio premises in Oatley, where the accused, the deceased, and the deceased's family had been living. The Crown applied to take the jury to inspect those premises, a procedure known as a "view."
Defence counsel initially opposed the application on the basis that alterations made to the premises since the relevant events occurred would render the view unhelpful to the jury. After receiving further information from the Crown about the nature of those alterations, the defence withdrew its objection.
The accused, who was in custody, was advised of his entitlement to attend any view but chose to waive that right.
Legal Issues
- Whether the statutory requirements under s 53 of the Evidence Act 1995 (NSW) were satisfied so as to permit a view of the premises
- Whether alterations made to the premises since the relevant events were sufficiently explicable to the jury so as not to cause confusion or distract from a proper understanding of the premises at the material time
Decision
Hulme J considered each of the criteria in s 53(3) of the Evidence Act 1995 (NSW). The accused had waived his right to attend, satisfying s 53(3)(a). The court was satisfied that a view would assist the jury in understanding the evidence and resolving factual issues, satisfying s 53(3)(b).
The court found no basis to conclude that a view would be unfairly prejudicial, misleading, confusing, or an undue waste of time, addressing s 53(3)(c).
On the question of alterations to the premises, the court was satisfied under s 53(3)(e) that those changes could be explained sufficiently to the jury. Existing evidence already before the court, including photographs and an interactive scene recording, would assist the jury in understanding how the premises had appeared at the material times.
The application was granted.
Orders Made
• There be a view of the studio premises where the accused, the deceased and the deceased's mother and siblings were living
Key Takeaways
- Under s 53(3) of the Evidence Act 1995 (NSW), a court may grant an application for a jury view where the statutory criteria are satisfied, including that the view will assist the jury in understanding the evidence and resolving issues of fact.
- Post-event alterations to premises do not automatically preclude a view; the Supreme Court found it sufficient that those alterations could be explained adequately to the jury and that existing visual evidence in the proceedings could aid that understanding.
- An accused person has an entitlement to be present at a view, confirmed by the Court of Criminal Appeal in Jamal v R and Tongahai v R, but may waive that right.
- The defence's initial objection based on alterations was resolved through further disclosure by the Crown, illustrating how the s 53(3)(e) criterion can be addressed during the application process rather than as a threshold bar.
- A combination of photographic and digital scene evidence already admitted at trial was treated as sufficient to contextualise the current state of the premises for the jury's benefit.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 53
Cases
- Jamal v R [2012] NSWCCA 198; 223 A Crim R 585
- Tongahai v R [2014] NSWCCA 81