Citation: R v Rogerson; R v McNamara (No 22) [2016] NSWSC 80
Court: Supreme Court of New South Wales
Date: 16 February 2016
Judge(s): Bellew J
Background
This decision arose during the criminal trial of two accused persons. The proceedings had previously involved an application for a "view," which is a procedure under the Evidence Act 1995 (NSW) where the court attends a location relevant to the trial to observe it directly. Bellew J had granted orders for a view of certain areas in an earlier judgment delivered on 6 August 2015.
With the view scheduled for 18 February 2016, the Crown filed a notice of motion seeking to extend the existing order to include one additional location. The proposed addition was the corner of Arab Road and Stuart Street at Padstow, where a detective sergeant was to point out matters including a location identified by a witness on an exhibit already before the court.
Neither accused opposed the Crown's application.
Legal Issues
- Whether the existing view order made under section 53 of the Evidence Act 1995 (NSW) should be extended to include an additional geographical location.
Decision
Bellew J granted the Crown's motion without opposition. His Honour noted that, in light of the evidence already given at trial, it was entirely appropriate to include the additional Padstow location in the view.
The decision was brief and ex tempore (delivered orally and later revised for publication). The court treated the matter as straightforward and procedural, given that both accused offered no resistance to the extension.
Orders Made
- The view to be undertaken on Thursday 18 February 2016 was ordered to include, in addition to the areas nominated in the previous judgment, the area at the corner of Arab Road and Stuart Street, Padstow.
Key Takeaways
- This decision confirms no point of legal principle. It is a routine procedural ruling extending an existing view order under section 53 of the Evidence Act 1995 (NSW) to cover an additional location.
- Under section 53 of the Evidence Act 1995 (NSW), courts may order a view of places or things relevant to proceedings. Such orders can be extended by motion during the course of a trial where the evidence makes an additional location relevant.
- The absence of opposition from both accused parties was noted by the court as a relevant consideration in granting the extension.
- No formal contested argument was required. The application was resolved on the basis that the evidence already before the court made the additional view appropriate.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), section 53
Cases:
- R v Rogerson; R v McNamara (No 10) [2015] NSWSC 1067