Views and demonstrations

Evidence Act 1995 (NSW), Pt 2.3, ss 52, 53, 54

[4-335] Introduction

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.

[4-340] Views

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.

[4-345] Suggested direction — view

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.

Arrangements have now been made for you to be taken to [specify the scene]. While you are away from the court you will be under the charge of court officers who are required to supervise your journey to and from the scene.

You are being taken to view the scene where the incidents giving rise to the charge(s) took place because counsel believe that it will assist you to understand the evidence in a realistic setting and, therefore, aid you in resolving the issues that will ultimately be placed before you. What you observe during the course of the inspection of the scene will constitute evidence in the case, and is to be treated by you as part of the overall evidence upon which you decide whether the Crown has proved its case beyond reasonable doubt.

You will not be permitted to conduct experiments while at the scene.

While you are away from the court house, do not discuss the case in any circumstance when your discussion can be overheard by a person who is not a member of the jury. You will appreciate that all jury discussions must be in the privacy of the jury room. Moreover, do not speak to anyone other than a fellow juror or court officer; and do not let anyone, other than those persons, speak to you. You must, of course, refrain from asking a court officer any question to do with the actual trial. Such a question can only be answered by me.

If you have any question you wish to ask the person who is conducting the inspection of the scene you should indicate the question to me [by way of a note] and then I will direct it to the relevant person if I believe that the question is an appropriate one.

[4-347] Oaths and affirmations — view

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

Oath/affirmation: sheriff’s officer

[Do you swear by Almighty God/Do you solemnly and sincerely declare and affirm] that you will well and truly attend this jury to the place at which the offence for which the accused [name] stands charged is alleged to have been committed and that you will not allow anyone to speak to them [ … except the person sworn and appointed to show you the place aforesaid] nor will you speak to them yourself [unless it is to request them to return with you] without the leave of the court.

Please say “I do”.

Oath/affirmation: shower

[Do you swear by Almighty God/Do you solemnly and sincerely declare and affirm] that you will attend the jury, and well and truly point out to them the place in which the offence for which the accused [name] stands charged is alleged to have been committed and that you will speak to them only as far as relates to describing the place aforesaid.

Please say “I do”.