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Supreme Court 28 April 2022

R v Coss (No 1)

[2022] NSWSC 530

Homicide
CRIMINAL PROCEDURE MURDER VIEW TOWN OF BINGARA NOT OPPOSED ORDERS MADE

Citation: R v Coss (No 1) [2022] NSWSC 530
Court: Supreme Court of New South Wales
Date: 28 April 2022
Judge(s): Dhanji J

Background

The accused stands trial for murder. The alleged events took place in and around the town of Bingara in regional New South Wales, involving a number of specific locations including two residential addresses, a hotel, and a river crossing.

The Crown applied for the court to conduct a view of those locations. The accused did not oppose the application.

Dhanji J delivered these ex tempore (on-the-spot) reasons to explain the orders made on 25 March 2022, when the view was formally authorised.

  • Whether the court should order an inspection of multiple locations in Bingara under s 53 of the Evidence Act 1995 (NSW)
  • Whether the statutory preconditions for making such an order were satisfied

Decision

Section 53 of the Evidence Act 1995 (NSW) empowers a judge to order a demonstration, experiment, or inspection on application. Before making such an order, the judge must be satisfied that all parties will have a reasonable opportunity to be present and that both the judge and jury will attend.

Dhanji J accepted the Crown's submission that inspecting the Bingara locations would assist the court in understanding the evidence about events leading up to, and on the night of, the alleged killing. The judge also noted that attending the locations would not require an excessive amount of time.

Having regard to those considerations, the court was satisfied that the orders should be made. A police officer, Detective Senior Constable Brendan Tremain, was appointed as the "shower" for the duration of the view, meaning that officer would be responsible for directing the court's attention to the relevant features of each location.

Orders Made

  • The court ordered an inspection of the following locations pursuant to s 53(1) of the Evidence Act 1995 (NSW):
  • The outside of 6 Bassett Street, Bingara
  • The outside of 8 Bassett Street, Bingara
  • The Sportsman's Hotel, 31 Maitland Street, Bingara
  • The Gwydir River crossing, downstream from the East Street bridge
  • Detective Senior Constable Brendan Tremain was appointed as the shower for the duration of the inspections

Key Takeaways

  • Under s 53 of the Evidence Act 1995 (NSW), a judge may order an inspection only after being satisfied that all parties will have a reasonable opportunity to be present and that the judge and jury will also attend.
  • In deciding whether to make such an order, the court must consider whether the inspection will assist in resolving issues of fact or understanding the evidence, and must guard against the risk of unfair prejudice, confusion, or undue waste of time.
  • The Supreme Court found that a site view of multiple locations in a small regional town was appropriate where those locations were directly connected to the alleged events and the visit would not take excessive time.
  • A "shower," typically a police officer or other appropriate person, is appointed to direct attention during the inspection. That role carries no formal evidentiary status beyond facilitating the view.
  • The decision is procedural in nature and does not determine any substantive issue in the trial.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 53 (views: demonstrations, experiments, and inspections)

Cases cited: None cited in the judgment.