Citation: R v Walmsley-Hume; R v Walmsley (No 1) [2024] NSWSC 1690
Court: Supreme Court of New South Wales
Date: 18 July 2024
Judge: Wright J
Background
Two accused face trial for the murder of Taj Hart, who died on 24 February 2022 after being struck by a vehicle on Old Southern Road, South Nowra. The Crown alleges the male accused deliberately drove off the roadway and into the deceased, who was walking approximately seven metres from the road, before returning to the road and driving on. The deceased died from his injuries later that day.
The male accused is alleged to have driven the vehicle intentionally with the aim of killing or causing grievous bodily harm to the deceased. The female accused, a passenger, faces murder charges on the basis of joint criminal enterprise, extended joint criminal enterprise, and alternatively as an accessory after the fact to murder for conduct between February and April 2022.
Both accused have pleaded not guilty. The central dispute for the male accused is whether the Crown can prove beyond reasonable doubt that he intended to kill or cause grievous bodily harm. For the female accused, the additional questions include whether she was party to any joint criminal enterprise, whether she knew a murder had been committed, and whether she assisted the male accused afterwards.
Legal Issues
- Whether an inspection of the collision site under s 53 of the Evidence Act 1995 (NSW) should be ordered
- Whether the requirements of s 53(2) were satisfied, specifically that parties would have a reasonable opportunity to be present and that the judge and jury would attend
- Whether the considerations in s 53(3) favoured making the order, including whether the inspection would assist the court in resolving factual issues, whether there was risk of prejudice or confusion, and whether the site had materially changed since the incident
Decision
The Crown applied by notice of motion for an order permitting the judge and jury to inspect the roadway and surrounding area where the collision occurred. Neither accused opposed the application. Wright J was satisfied that the procedural requirements of s 53(2) were met, noting that parties had been given a reasonable opportunity to attend even though both accused chose not to attend in person. Their legal representatives would be present.
On the substantive considerations under s 53(3), Wright J accepted that a site inspection would assist the jury in understanding the expert evidence of a crash investigator and a consulting engineer, as well as lay evidence about the incident. The inspection was considered relevant to factual matters including sight lines, spatial relationships, and the location where the deceased came to rest.
Wright J found no significant risk of unfair prejudice, confusion, or waste of time. A memorial shrine located near the inspection site was to be covered before the jury arrived to prevent any distraction or emotional influence during the visit. The site had not materially altered since February 2022, satisfying the requirement under s 53(3)(e).
The Court concluded that an inspection was appropriate in all the circumstances and made the order sought by the Crown.
Orders Made
- Under s 53 of the Evidence Act 1995 (NSW), an inspection be held on 25 July 2024 of the roadway and surrounding area at and near the site where the deceased was struck on 24 February 2022 by a vehicle next to Old Southern Road, South Nowra.
Key Takeaways
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Under s 53 of the Evidence Act 1995 (NSW), a court may order a site inspection where it is satisfied that parties have had a reasonable opportunity to be present, and that the judge and jury will attend. The accused's voluntary decision not to attend does not defeat that requirement if their legal representatives participate.
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An inspection will meet the s 53(3) threshold where it is likely to assist the jury in understanding expert forensic and engineering evidence, particularly where spatial features such as sight lines and distances are directly relevant to contested factual issues.
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The absence of any objection from the parties, combined with evidence from an experienced solicitor, can be relevant to the court's assessment that no prejudice, confusion, or undue waste of time would result from the inspection.
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Practical arrangements, including feasible transport logistics and the covering of a memorial shrine at the site, were relevant factors in the court's assessment that the order was appropriate.
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Where a location has not materially changed since the events in question, the s 53(3)(e) consideration regarding material alteration does not weigh against making the inspection order.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 53
Cases cited: None cited in the judgment.