Criminal Trial Courts Bench Book — Trial Instructions R–Z

Part 2.3 Evidence Act 1995 empowers the trial judge, on the application of one or more of the parties, to order that a demonstration, experiment or inspection be held. A demonstration, experiment or inspection occurring in the courtroom does not fall within the sections in this Part of the Act and are regulated by the common law: Evans v The Queen (2007) 235 CLR 521 at [30], [105], [223]. General evidentiary provisions such as ss 55 and 137 would apply but not s 192.

The power of a court to direct a view and the evidentiary effect of a view is contained in ss 53 and 54 Evidence Act. The Victorian Court of Appeal in Ha v R (2014) 44 VR 319 at [31]–[34] set out guidelines for conducting a view with reference to the suggested procedure below. The guidelines in Ha v R were adopted in R v Rogerson; R v McNamara (No 10) [2015] NSWSC 1067 at [16].

The accused may elect not to be present at a view but he or she has a right to attend: Jamal v R (2012) 223 A Crim R 585 at [30]–[31]; Tongahai v R [2014] NSWCCA 81 at [37]. A failure of a judge to comply with the mandatory requirement under s 53(2)(a) of giving the parties a reasonable opportunity to be present can cause the trial to be fundamentally flawed: Jamal v R at [41]. A court cannot compel an accused to attend a view: Tongahai v R at [25]–[26].

It is normal to nominate a person, often the Officer in Charge of the investigation, to be the shower for the purposes of indicating relevant aspects of the scene to the jury during the view in accordance with the evidence given in court.

A transcript should be made of the view. It is suggested that the police be asked to take a video recording of the view, if practicable, so that it can later be tendered in evidence. The recording should be made so as not to disclose members of the jury, but to record what is said by the shower and, if possible, any questions asked by the jury and the answers given by the shower.

The preferable course in relation to questions asked by the jury is for them to be put in writing and then vetted by the judge, in consultation with counsel if necessary, prior to being asked of the shower by the judge.

It is usual to swear the court attendants who accompany the jury to and from the view prior to departing from the court. This is to ensure that no person is allowed to communicate with the jury except at the view in the presence of the judge. It is also usual to swear the shower. See the suggested oaths and affirmations at [4-347].

The Victorian Court of Appeal in Ha v R at [33] said that there was “much to be said for the guidance to be found in the New South Wales [Criminal Trial Courts] Bench Book” in relation to nominating and swearing a “shower”, making a transcript of the view, video recording it and ensuring that all questions asked by the jury be put in writing and vetted by the judge prior to being asked of the shower. The court in Ha v R also said a record of what occurred could be made by causing a shorthand note to be made, which is later read into the trial transcript; or by the judge making, or arranging for, some form of summary to be made, which is later read into the transcript. Priest JA (Maxwell P and Weinberg JA agreeing) at [31] said: “At the very least, the judge, upon returning to court, should — with any necessary input from counsel — describe what occurred with moderate detail”.

A jury has been permitted to have a view during deliberations where it was requested by the defence: R v Delon [1992] 29 NSWLR 29.

A suggested direction to be given to the jury prior to the view, which may be adapted to the special circumstances of the case, is set out below.

The following oath/affirmation is suggested for the sheriff’s officer and the shower respectively.