Citation: R v Hutchison, Wilkinson & Greentree (No 2) [2018] NSWSC 1757
Court: Supreme Court of NSW
Date: 16 November 2018
Judge: Hamill J
Background
Three accused faced trial arising from the death of a man referred to by the pseudonym Brett Walker. On the Crown case, two of the accused committed the murder, while the third, Mr Greentree, faced a charge of being an accessory after the fact. The trial was conducted before a judge alone, with Hamill J as the tribunal of fact.
A factual dispute arose between Mr Greentree and Crown witnesses, including one or two child witnesses, about what was done, what was seen, and what could have been seen in the Wisemans Ferry vicinity following the alleged murder. The resolution of that dispute turned in part on an understanding of the physical layout of the relevant locations.
Mr Greentree applied under s 53 of the Evidence Act 1995 (NSW) for an inspection of certain sites around the Wisemans Ferry area. The other accused joined the application, and the Crown agreed to a modified schedule of locations to be visited.
Legal Issues
- Whether an inspection of the scene under s 53 of the Evidence Act 1995 (NSW) was appropriate in the circumstances
- Whether physical changes to the relevant sites since the events in question were significant enough to render an inspection misleading or confusing (relevant under s 53(3)(e))
- Whether an inspection would assist the tribunal of fact in resolving the factual dispute and understanding the evidence (relevant under s 53(3)(b))
Decision
Issue 1: Whether an inspection would assist the tribunal of fact
Hamill J was satisfied that attending a view of the scene would assist in resolving the factual issues and, in particular, in understanding the evidence about the physical layout of the area where the relevant observations were made (at [6]). This satisfied the criterion in s 53(3)(b) of the Evidence Act (at [6]).
Issue 2: Whether changes to the sites were significant
An affidavit from Ms Hutchison's solicitor addressed the extent to which the sites had materially altered since the relevant events, as contemplated by s 53(3)(e) (at [7]). Hamill J accepted that some changes had occurred but found they were not so significant as to make an inspection misleading or confusing (at [7]). Any relevant changes could be highlighted during the inspection itself or through subsequent evidence, and were in any event already addressed in the solicitor's affidavit (at [7]).
Issue 3: Making the order
Taking into account the relevant considerations under s 53, and noting that observations made on the inspection would become evidence under s 54, Hamill J was satisfied it was appropriate to order the inspection (at [8]). The court was guided substantially by the agreed position of all parties as to the schedule of locations to be visited (at [9]).
Orders Made
- An inspection of certain areas around the Wisemans Ferry vicinity was ordered under s 53 of the Evidence Act 1995 (NSW), with the inspection to take place on 14 August 2018.
Key Takeaways
- Under s 53(3)(b) of the Evidence Act 1995 (NSW), a court may order an inspection where attendance at a scene will assist the tribunal of fact in resolving disputed questions of fact or understanding the evidence (at [6]).
- Physical changes to a scene since the relevant events do not automatically preclude an inspection order under s 53(3)(e); the question is whether those changes are significant enough to risk the inspection being misleading or confusing (at [7]).
- Where changes can be adequately addressed through evidence or commentary during the inspection itself, they will not necessarily defeat an application (at [7]).
- Any observations made during a court-ordered inspection become evidence in the proceedings pursuant to s 54 of the Evidence Act 1995 (NSW) (at [8]).
- Agreement among all parties as to the sites to be included in an inspection is a significant practical consideration in the court's exercise of its discretion under s 53 (at [9]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW) ss 53 and 54
Cases
- Not stated