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Supreme Court 1 March 2016

R v Gordon

[2016] NSWSC 290

Homicide
CRIMINAL LAW EVIDENCE APPLICATION FOR A VIEW

Citation: R v Gordon [2016] NSWSC 290
Court: Supreme Court of New South Wales
Date: 1 March 2016
Judge: Campbell J

Background

The accused stood trial for the murder of the deceased, said to have occurred on 6 or 7 November 2013 at a remote rural property approximately one and a half hours from Grafton. The Crown's case, entirely circumstantial, was that the accused bludgeoned the deceased with a large rock weighing approximately 21 kilograms, causing a transverse skull fracture and fatal traumatic brain injury. An alternative Crown case was that the accused deliberately drove over the deceased with a vehicle, causing all of the fatal injuries with the requisite intention for murder.

The body was found in a ditch beside a dirt access road, near a bloodied boulder that also contained hair matching the deceased. Scientific evidence indicated that the underside of the boulder bore DNA consistent with the accused. There was a significant gap in the direct evidence as to how the deceased came to be in the ditch and how the boulder came to be positioned as police found it.

The Crown applied for the jury to attend a view of the crime scene at the property, with markers recreated in positions documented in crime scene photographs and supported by steel pegs placed by police to preserve the scene.

  • Whether the court should exercise its discretion under section 53 of the Evidence Act 1995 (NSW) to permit a jury view of the crime scene
  • Whether the changes to the scene over approximately two and a half years rendered the view unfairly prejudicial, misleading, or confusing to the accused
  • What conditions, if any, should govern the conduct of the view

Decision

Campbell J granted the Crown's application for a jury view. His Honour accepted the Crown's submission that physically attending the scene would assist the jury in understanding the spatial relationships between the relevant locations, which two-dimensional photographs and photogrammetric evidence could not fully convey. The confined area where the events occurred, and the relative positions of markers, the ditch, the road, and the boulder's resting point were central to the factual issues the jury would need to resolve.

The defence argued that changes to the scene, including lusher vegetation following heavy rain, raised a risk of unfair prejudice, confusion, or misleading of the jury. Campbell J acknowledged these concerns as valid but was satisfied that the character of the place had not changed in a materially misleading way. Any remaining risk could be addressed through adequate directions to the jury before the view, covering the possibility of error in recreation and natural changes to the site.

His Honour imposed conditions to manage the risks identified. No demonstration or experiment would be permitted, only an inspection. Evidence explaining the process of recreating the scene would be led before the view, and the defence would have the opportunity to cross-examine on it. Jury questions at the scene would be reduced to writing and vetted by the judge and counsel before being permitted.

Orders Made

  • An inspection of the scene at Collum Collum Station was ordered to take place on Tuesday, 8 March 2016, subject to conditions to be further discussed with counsel.
  • Counsel were directed to confer and attempt to agree upon the appropriate conditions governing the conduct of the view.

Key Takeaways

  • Under section 53(3) of the Evidence Act 1995 (NSW), a court may permit a jury view even where the scene has changed over time, provided those changes are not material in the sense of altering the character of the place in a misleading way.
  • The risk of unfair prejudice from a changed scene can be mitigated through a combination of pre-view evidence explaining the recreation process, cross-examination opportunities for the defence, and adequate jury directions on the limitations of the inspection.
  • A jury view is distinguishable from a demonstration or experiment; Campbell J emphasised that only an inspection, not a re-enactment, would be permitted.
  • Where photogrammetric and photographic evidence is available, a view may still be warranted if the spatial relationships between locations are central to the factual dispute and two-dimensional evidence may be insufficient to convey them adequately.
  • Jury questions at the view were subject to a vetting procedure, requiring written questions to be approved by the judge with counsel's assistance before being asked.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), section 53 (judicial discretion to admit or exclude evidence of a view; conditions for inspections)

Cases: No cases were cited in the judgment.