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Supreme Court 22 May 2018

R v Jenkin (No 13)

[2018] NSWSC 791

Homicide
EVIDENCE JOINT APPLICATION RELEVANT CONSIDERATIONS

Citation: R v Jenkin (No 13) [2018] NSWSC 791
Court: Supreme Court of New South Wales
Date: 22 May 2018
Judge: Hamill J

Background

The accused stood trial before Hamill J, sitting alone (without a jury), on a murder charge. The events giving rise to the charge occurred primarily in and around a residential unit complex at Crana Place, Mangerton in Wollongong, where the victim's body was found near a laundry.

Over three weeks of evidence, 41 civilian witnesses, most of them local residents, had given evidence about what they saw and where they were positioned. Despite extensive photographic material and an ISRAPS presentation (an interactive photographic tool allowing virtual navigation of a scene), the judge found the physical layout of the various unit blocks, sightlines, and distances between locations genuinely difficult to follow.

Both the prosecution and defence made a joint application under s 53 of the Evidence Act 1995 (NSW) for a court inspection (also called a "view") of the area. The accused, who was in custody, was informed of the proposed view and indicated through his counsel that he did not wish to attend in person.

  • Whether the court should order an inspection of the crime scene under s 53 of the Evidence Act 1995 (NSW)
  • Whether the requirements of s 53(2), specifically that all parties have a reasonable opportunity to be present, were satisfied given the accused's absence
  • Whether the s 53(3) criteria, including whether the inspection would assist in resolving issues of fact and whether it would be prejudicial or misleading, supported making the order

Decision

Hamill J was satisfied that the threshold requirement under s 53(2) was met. Although the accused would not attend in person, he was informed, he made a voluntary and informed decision to decline attendance, and he would be represented by both his solicitor and counsel. The court reporters would also attend and record everything said and observed. The judge noted the relevant cases of Jamal v R and Tongahai v The Queen, which address the position of accused persons in relation to views.

On the primary criterion under s 53(3), the judge held that the inspection would materially assist in resolving issues of fact. The geographic layout, the distances between relevant locations, and the sightlines described by witnesses were all matters the judge identified as genuinely difficult to assess from photographs alone. Understanding those matters was directly relevant to evaluating the credibility and reliability of witness accounts, including whether witnesses could have seen what they claimed to have seen from their stated positions.

The remaining criteria did not weigh against making the order. No material alterations to the scene had occurred. There was no basis to find the view would be prejudicial, misleading, or confusing, and it would not involve any undue waste of time.

Orders Made

  • An inspection be held in the area of Crana Place, Mangerton, at various locations to be agreed between the parties.

Key Takeaways

  • Under s 53 of the Evidence Act 1995 (NSW), a court may order an inspection of a location relevant to the proceedings, provided specified criteria are satisfied, including that parties have a reasonable opportunity to be present and that the inspection will assist in resolving issues of fact.
  • An accused person's voluntary, informed decision not to attend a court inspection does not necessarily prevent the order from being made, particularly where the accused will be represented and proceedings will be fully recorded.
  • The Supreme Court found that photographic and digital presentations of a scene, including interactive tools such as ISRAPS, do not always adequately convey scale and distance, and that these limitations can justify a physical inspection even where substantial visual evidence has already been tendered.
  • In judge-alone trials, the court's own difficulty in understanding contested geographic or spatial evidence is a relevant consideration when assessing whether an inspection "will assist the Court in resolving issues of fact" under s 53(3).
  • The absence of material changes to a scene since the relevant events is a factor supporting the grant of an inspection order, as it reduces the risk of the view being misleading.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 53

Cases:
- Jamal v R [2012] NSWCCA 198; (2012) 223 A Crim R 585
- Tongahai v The Queen [2014] NSWCCA 81; (2014) 241 A Crim R 217