Views and demonstrations

Priestly JA

At 30

Mr Juliano Delon was, on 9 May 1991, found guilty by a jury and convicted of having on 27 October 1988 supplied a prohibited drug, heroin. On the same day he was sentenced to a minimum term of imprisonment of two years with an additional term of eight months. He appeals against the conviction and seeks leave to appeal against the sentence.

At 34 to 36

The next grounds of appeal argued concerned a view by the jury of the lane between Carlton Street and the car park. Counsel for the appellant had asked the trial judge to send the jury to view this area before the addresses of counsel and the judge's summing-up. The judge refused. The appellant's counsel submitted this was an error. The other ground arose from the fact that following the addresses of counsel and the summing-up, the trial judge then permitted the jury to have such a view.

In a little more detail, what happened at the trial concerning the view was this. On the second day of the trial, the appellant's counsel asked that the jury have a view. The trial judge refused, indicating he thought it would be preferable if the jury simply concentrated on the evidence given in court. After the jury retired to consider their verdict they sent three questions to the judge. The judge interpreted one of these questions as asking why the jury did not have a photograph which had been shown to Constable White when he was being cross-examined. (It had been marked for identification but not tendered.) There was then (in the absence of the jury) discussion between the judge and counsel about the possibility of tendering the photograph by consent. This led to the judge's thinking that the photograph might have a misleading effect on the jury. Appellant's counsel then renewed his application for a view. The Crown Prosecutor said he had no objection if the judge wished to invite the jury to have a view. The judge then made arrangements for the jury to have the view, and it duly took place.

The appellant's first point was that the judge erred in refusing the view when first asked for. It seems to me that this submission can not be right. It must be a matter for the discretion of the trial judge to decide whether the holding of a view in a particular case will be of sufficient assistance to the trial's being fairly conducted to justify the time and expense of taking the jury to a particular place. One thing the judge must consider is the possibility of the view's being misused. A view is a complicating feature of a trial. There will be occasions when it will be helpful for a jury in understanding the evidence and the advantages of that will in the circumstances of a particular case outweigh the difficulties and dangers. On other occasions it will not. So long as the trial judge takes the relevant considerations into account, an appeal court will be loath to interfere with the exercise of the trial judge's discretion. I see no sign in the present case of there having been any miscarriage of discretion. I do not accept the submission made for the appellant on this aspect of the case.

The second point about the view, was that coming when it did, it was an irregularity making a new trial inevitable, notwithstanding that it was the appellant's counsel who had, after the jury's question, repeated his request for a view. For this proposition he relied on a series of English cases…

The earlier cases in this series are distinguishable from that now before the Court in that they involved the giving of evidence, rather than the having of a view, after summing-up. The last two however, and in particular R v Lawrence, decided by a court over which Diplock LJ presided, lend support to the appellant's contention. The appellant in R v Lawrence had been charged with shop breaking. Evidence had been given of incriminating property being found in a police car in which he had been taken to the police station after being arrested. After the jury had been considering their verdict for some time, they sent a message to the judge saying they would like to see the car. Counsel for the appellant told the judge that he thought it would probably be to his client's advantage for the jury to see the car but also drew the judge's attention to R v Gearing, in which, he said, it had been held that there was a strict rule of procedure that no further evidence should be introduced in a trial after the jury had retired and if any further evidence were adduced at that stage, the conviction would be quashed. The judge thought that if the jury were to look at the car that would not be the introduction of further evidence. The car was then brought outside the court and the jury, counsel and judge had a look at it. Diplock LJ in giving the court's decision said the case could not be distinguished from R v Gearing and that the rule in that case must be applied. The court quashed the

conviction.

However, despite the apparently absolute terms of the rule laid down in R v Lawrence there are other English decisions which support a less absolute approach, which must, in my opinion, represent the true position. The earlier cases in the line of authority commencing with R v Browne carry with them the idea that it is for the Crown to prove its case in full before the beginning of the case for the accused. Exceptions to that are to be kept strictly under control. By the time the summing-up to the jury has been completed and the jury have retired the Crown should have no further opportunity of putting evidence before the jury. If by that stage the Crown case is insufficient to prove the accused's guilt beyond reasonable doubt then ordinarily the Crown is to be given no further chance to improve its position. The basis of the rule is thus one concerned with safeguarding the fairness of the trial from the point of view of the accused.

In my view it would be consistent with this approach, if there existed a discretion in the court to permit the introduction of evidence at any stage of the trial before verdict, if that were necessary to avoid a miscarriage of justice. It would not usually be regarded as a miscarriage of justice if the Crown, having  failed at the proper time to produce all necessary evidence, were later shut out from doing so; the court would ordinarily take the view such further evidence would not be permitted at a stage so far past the proper time for proof of the Crown case, one reason being that to permit it then to be done would give a foothold for the development of a practice with a potential to make trials quite disorderly. Another reason would be fairness to the accused. From the point of view of an accused however, if for instance evidence previously unavailable and of a decisive kind came to hand before verdict, it is hard to see there would be a miscarriage by its being allowed to be put to the jury even at that stage. If this required further addresses by counsel and further summing-up by the judge, that would be a more appropriate course to follow than to leave it to the Court of Criminal Appeal later to set aside the verdict and order a new trial.

At 37

In the present case, the submission for the appellant rested on the proposition that the rule was an absolute one. It seems to me that the ground of appeal must fail once it is recognised that the rule is discretionary and not absolute, since it was appellant's counsel at the trial who invited the holding of the view after the summing-up was completed. Having invited the court to exercise discretion, it is difficult to see that any miscarriage of the trial could result to the party on whose behalf the request was made. In any event, it seems to me that in the circumstances of the case, there was no error by the trial judge in the exercise of his discretion.

Loveday J

At 40

I agree with Priestley JA.

Sully J

At 40

I agree with Priestley JA.

Gummow and Hayne JJ (who held the demonstration was not relevant, and that the proviso should not have been applied at the Court of Criminal Appeal)

1. In February 2002, security cameras photographed an armed man robbing persons of money. The offender was wearing overalls, sunglasses, and a balaclava which covered all of his face except eyes and mouth. After the robbery, a baseball cap and a tissue were found on the floor near where the robber had stood. The security photographs, taken at intervals, show where these items were found. The photographs tendered in evidence were not very clear. In some of the photographs something that could be a cap can be seen on the floor; in other earlier photographs that item cannot be seen.

…

4. In the District Court of New South Wales, the appellant was charged with, and convicted of, two counts of armed robbery and one count of assault with intent to rob whilst armed with an offensive weapon.

5. The appellant appealed to the Court of Criminal Appeal of New South Wales against his conviction. He advanced several grounds of appeal and the Court of Criminal Appeal (James, Hidden and Hoeben JJ) held that two of the grounds were made out.

6. The first concerned the appellant being required, in the course of cross-examination by the prosecutor, to put on not only the balaclava and overalls that had been found at his house but also a pair of sunglasses which were not in evidence but were produced by the prosecutor. The Court concluded that although there was no error in requiring the appellant to put on the balaclava and overalls, he should not have been asked to put on sunglasses that were not in evidence.

…

8. The Court of Criminal Appeal concluded that neither of the errors it had identified was significant, and that "the evidence properly admitted at the trial proved the guilt of the appellant beyond reasonable doubt". Accordingly, the Court of Criminal Appeal applied the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) and dismissed the appellant's appeal to that Court. By special leave, he appeals to this Court. The appeal should be allowed.

…

17. Other aspects of the use made at trial of the balaclava and overalls present more fundamental questions. In his notice of appeal, the appellant alleged that the Court of Criminal Appeal should have held that "the prosecutor should not have been permitted to require the [appellant]" to put on these items, walk up and down in front of the jury and say words which it was alleged that the robber had used. The grounds gave no particulars of why the prosecutor should not have been permitted to make these requirements but the respondent, correctly, understood the ground as challenging both the relevance and the admissibility of what was done. The respondent's written submissions sought to demonstrate that the relevance of what was done "lay in the comparison of what the jury saw and heard with the descriptions of the witnesses" and the respondent amplified that proposition in those submissions in a number of ways. The appellant, in his written submissions in reply, joined issue with the respondent's analysis.

…

24. Showing the jury what the appellant looked like when wearing the balaclava and overalls that were in evidence (with or without the addition of sunglasses that had not been received in evidence) could not "rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding". The central issue at the appellant's trial was whether he was the robber. There was no dispute that there had been a robbery. There was no dispute that the robber had been wearing a balaclava, overalls and sunglasses.

25. No one asserted, however, that the person wearing the disguise of balaclava, overalls and sunglasses could be identified by looking at that person during the robbery or could be identified by looking at the security photographs. None of the witnesses, not even the witness who had seen the robber without the balaclava pulled down over his face, said that they could recognise the man who was thus attired. None of the witnesses, and neither trial counsel, asserted that the person depicted in the security photographs could be identified.

26. Looking at the appellant wearing the balaclava and overalls (with or without sunglasses) enabled a comparison between no more than the items he put on and what was depicted in the security photographs. But that comparison could be drawn without the appellant being asked to put them on. Dressing the appellant in the items provided no information to the jury that could rationally affect, directly or indirectly, the determination of any fact in issue because it revealed nothing about the wearer and nothing about the appellant that was not already apparent to the jury observing him in the dock.

27. Requiring the appellant to put on the balaclava, overalls and sunglasses may be contrasted with requiring him to walk in front of the jury and requiring him to speak certain words. Observing how the appellant walked and how he spoke certain words might bear upon the jury's decision whether he was the man the witnesses had described. The jury could observe for itself these matters concerning the appellant; the jury could compare its observations with what the witnesses had said about the robber. This stands in sharp contrast with the balaclava, overalls and sunglasses, where the focus necessarily fell only upon the disguise and said nothing about who had worn it. Deciding who had worn the disguise was not assisted by having the appellant put on the items he was asked to put on.

28. It follows that dressing the appellant in the balaclava and overalls (and producing a pair of sunglasses for him to wear) proffered no relevant evidence for consideration of the jury. It should not have been done. It is, then, not necessary to consider how Pt 2.3 of the Act would apply to this use of these items.

…

30. For the reasons given by Heydon J, neither the appellant being asked to walk in front of the jury nor his being asked to say certain words was a "demonstration, experiment or inspection" to which s 53 of the Act applied. As the reasons of Heydon J demonstrate, that section is engaged in respect of demonstrations, experiments or inspections which are conducted outside the courtroom and which are to constitute a part of the evidence adduced at trial. Again, as Heydon J demonstrates, such matters as experiments undertaken out of court by an expert witness for the purposes of forming an opinion which is proffered in evidence do not come within the section. (Experiments of that kind are not undertaken by order; they are undertaken to enable formation of an opinion which will be tendered in evidence.)

Kirby J (declined to resolve the issues of the relevance of the demonstration as it had not been properly raised, but found the evidence was unfairly prejudicial, and that Court of Criminal Appeal should not have applied the proviso)

54. I agree with the conclusion expressed by Gummow and Hayne JJ ("the joint reasons") that the application of the "proviso" was erroneous. The Court of Criminal Appeal ought to have ordered a retrial. That is the order that this Court should now make.

…

59. The other reasons clarify the issues that now fall to be decided. Those issues are the ones expressed in the appellant's several grounds of appeal to this Court which are helpfully set out in the reasons of Heydon J. So presented, the controversies that this Court is asked to resolve may be summarised as follows:

…

(2) The demonstration issue: Whether the Court of Criminal Appeal erred in concluding that s 53 of the Evidence Act did not apply to an in-court demonstration in which the prosecutor required the appellant to perform by dressing up in a balaclava and overalls, walking in front of the jury and saying words attributed to the offender by one witness ("the demonstration"). If s 53 of that Act did not apply to the demonstration, did any residual rules of the common law apply to render such questioning and conduct impermissible? Whether, otherwise, such evidence was inadmissible as prejudicial and unfair, or as involving the splitting of the prosecution case, or as condoning improper conduct on the part of the prosecutor, in respect of which the Court of Criminal Appeal should have provided redress to the appellant?

…

63. In-court demonstrations: So far as the submissions on the second issue are concerned, it is convenient to isolate three subordinate submissions regarding which I do not demur from the conclusion reached in other reasons. Thus, alike with the joint reasons, I accept the conclusion reached by Heydon J that s 53 of the Evidence Act does not apply to an in-court "demonstration, experiment or inspection". The section is not therefore applicable to the demonstration conducted in court pursuant to the prosecutor's request that the appellant dress up in overalls and a balaclava; wear them whilst seated in the dock; walk in the courtroom in front of the jury; and say words in their presence which had earlier been attributed to the offender.

64. Although there are arguments both ways (and the resulting gap in the application of the Evidence Act in respect of in-court demonstrations is awkward and arguably unintended), the powerful examination by Heydon J of the statutory text, the preceding common law and the reports of the Australian Law Reform Commission, bring me with a certain reluctance to the same conclusion as his Honour has reached. This is that s 53 of the Evidence Act is confined to demonstrations out of court. The section did not apply to such activities undertaken in court, necessarily in the presence of the judge and jury.

…

82. Rejection of irrelevance: There are several reasons why, in my view, this Court should not adopt the analysis embraced in the joint reasons.

83. First, it is not an argument that is raised in any of the appellant's grounds of appeal before this Court…

…

87. Secondly, a question of procedural fairness is presented by the course taken in the joint reasons. Because the issue of relevance was not raised in the grounds of appeal, it was not addressed in the written submissions of the parties…

…

91. Thirdly, the fact that, despite the many experienced minds that have been brought to bear on the controversies of this case, no one previously has seen fit to raise an objection to the demonstration evidence on the grounds of relevance, is (or should be) reason enough for this Court to pause before embracing such a new approach for itself.

….

94. Fourthly, the postulate of the "logically anterior question" embraced in the joint reasons does not appear convincing when it is remembered that the test of "relevance", expressed in the Evidence Act, is an extremely broad one…

…

101. Fifthly, when one reflects on whether the evidence that the prosecutor was seeking to adduce could "rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding", one such fact was clearly whether the appellant was the offender who had committed the crimes alleged. Relevant to that question was (to put it broadly) whether, when dressed in overalls and a balaclava; when walking in front of the jury; and when saying words ascribed to the offender at the scene, there were apparent similarities, in the jury's view, between the appearance and conduct of the appellant and the earlier evidence and descriptions given (or viewed on videotape) concerning the offender.

…

107. With due respect to Heydon J, who has reached the opposite conclusion, it is my opinion that what the prosecutor required the appellant to do was a "demonstration" so far as the common law rules applying to in-court demonstrations are concerned. The prosecutor obliged him to dress up; to walk before the jury; and to say particular words. She did so for the manifest purpose of allowing the jury to draw their own comparisons between what they saw and heard for themselves and other available evidence relevant to the identity of the offender.

108. It is not correct to dismiss the prejudice to the appellant as insubstantial because of the fact that he was obliged to sit in the witness box for a relatively short time, measured against the duration of the entire trial, during part of which the jury's attention would have been distracted and focused on the objections being voiced by the appellant's trial counsel. Counsel protested that what was happening was "totally improper" and "patently unfair". The duration of the demonstration is not the essence of the appellant's complaint. The complaint is that the prosecutor's questions made him sit, in the jury's presence, in a garb often associated with armed robberies; inescapably similar to the appearance of the offender shown on the video film and photographic stills; and necessarily looking sinister and criminal-like. Even if glanced at for a moment, such an image (like images of hijackers, terrorists and murderers in well-remembered films, documentaries and news broadcasts) would etch an eidetic imprint on the jury's collective mind. It is an image unfairly prejudicial to the appellant.

There have been cases where witnesses have been requested to engage in in-court demonstrations by revealing a particular part of the body, otherwise clothed; providing a sample of handwriting; wearing a hat or where they have otherwise been tested on some idiosyncratic spoken or written reproduction of particular words. However, never in my experience has conduct in which the accused person has been asked to engage come close to the serious prejudice to which the appellant was subjected by the questioning by the prosecutor and the demonstration that she led him to perform in his trial.

…

113. No one suggested that the generality of the exclusionary language of ss 135 and 137 of the Evidence Act did not apply where the source of the governing rule lay in the common law rather than the Evidence Act itself. It follows that the Court of Criminal Appeal erred in failing to hold that any probative value of the evidence which the prosecutor sought to adduce by way of the demonstration was outweighed by the danger that the evidence might be unfairly prejudicial to the accused. On this ground, the trial judge should have declined to admit the evidence adduced by the prosecutor. She should have excluded that evidence and stopped the demonstration.

…

121. Approaching the final issue in this way, alike with the joint reasons, I would conclude that the exercise by the Court of Criminal Appeal of the powers reposed in it by the Criminal Appeal Act, and specifically the "proviso", miscarried. That Court erred in failing to uphold the appellant's submission that the trial judge had erred in law in admitting evidence of the demonstration. That error being established, either this Court must, for its own part, re-exercise the powers reposed in the Court of Criminal Appeal, or it must remit that exercise to be performed by that Court correctly and in accordance with law. No party argued for remitter. There is no reason why this Court should not reach, and give effect to, its own view in disposing of this appeal.

Heydon J (held the demonstration was relevant and not unfairly prejudicial)

171. The balaclava and the sunglasses. The first event complained of related to Ex M (the balaclava) and some sunglasses. First, the accused was asked to place the balaclava over his face. After a defence objection was overruled, the accused complied. Prosecution counsel then began to make a statement about what those in the courtroom could see, to which defence counsel objected. In the presence of the jury, debate about that objection proceeded over more than two pages (which in this Court counsel for the accused contended took 10 minutes and which certainly took some minutes). The debate concluded with prosecution counsel withdrawing her question and the trial judge saying she would not interfere. At that point prosecution counsel asked the accused to remove the balaclava. She then asked him to take a pair of sunglasses. Defence counsel objected, and prosecution counsel made it plain that she wanted the jury to compare the appearance of the accused wearing the sunglasses and the balaclava with what they saw on the video and the photographs taken during the crime. After a debate about admissibility in the absence of the jury, the trial judge permitted the course proposed by prosecution counsel to take place. The essence of counsel's objection was that it was "blatant unfairness" to dress the accused up so as to make him look like a robber. After putting on the sunglasses and the balaclava, the accused complied with requests to face the jury and turn side-on to the jury.

172. The Court of Criminal Appeal held that the trial judge erred in asking the accused "to put on sunglasses which had not been admitted into evidence, which had not been shown to any witness and which were produced for the first time when the prosecutor asked the [accused] to put them on". That conclusion was not challenged by the prosecution on this appeal.

173. "Give me the serious cash." The second event complained of followed soon after the accused had removed the sunglasses and the balaclava. Prosecution counsel asked the accused to say: "Give me the serious cash." A strongly-put defence objection was rejected. The accused then said, at the request of prosecution counsel, "Give me the serious cash" and "I want the serious cash". It will be remembered that Mrs Gleeson had suggested that the offender may have pronounced "serious" as "sherious".

174. Walking in overalls before the jury. The third event took place when prosecution counsel asked the accused to put on the overalls (Ex O). Defence counsel objected unsuccessfully. The court adjourned so that the accused could remove his outer clothing and put on the overalls. When the court resumed, prosecution counsel asked him to walk in front of the jury.

…

177. Counsel for the accused in this Court submitted that the appearance of the accused in a balaclava which was not asserted to be the balaclava worn by the offender was irrelevant on the ground that it could not "rationally affect ... the assessment of the probability of the existence of a fact in issue", namely the identity of the offender. That is incorrect. If, attired in the balaclava, the accused had looked very different from the descriptions given by the eyewitnesses, that would have been material capable of raising a reasonable doubt. If, so attired, he had looked similar to the descriptions, it would, taken with other evidence, have been material capable of supporting a conclusion of identity. The relevance of evidence does not depend on its capacity by itself to prove the prosecution case on a particular issue, or to raise a reasonable doubt in favour of the defence on that issue. The effect on assessing probability which is to be looked for is the effect of the contested evidence taken with other evidence either admitted by the time the controversial evidence is tendered, or to be called.

178. The relevance of saying "serious". The accused's objection to the relevance of the sentences he was asked to repeat centred on the contention that the eyewitnesses gave different accounts of what was said, and the accent, tone and volume with which it was said; only four of the seven eyewitnesses said that the offender used the word "serious"; only Mrs Gleeson referred to the peculiar pronunciation; and she merely said that when the offender said: "'This is serious', it almost came over as, 'sherious', or something like that". It was submitted that this did not amount to a demonstration of a speech idiosyncrasy by the offender; that the words which counsel asked the accused to say were not those recalled by Mrs Gleeson ("This is serious, give me the money"); and that the accused was not asked to repeat the words attributed to the offender by other witnesses, but only something similar to what they said. Counsel also noted that the jury asked to hear a tape of the accused's evidence, noted that they asked for the written transcript of the accused saying, "Give me your serious cash", and noted that there was no voice recording of the offender's voice with which the jury could compare the accused's voice.

…

183. The relevance of walking in overalls. Counsel for the accused submitted that a "demonstration" of what the accused looked like in overalls not asserted to have been worn by the offender was not relevant. That submission must be rejected. There was evidence of similarity as well as dissimilarity between what the offender wore and Ex O. There was evidence of many physical similarities between the offender and the accused. According to prosecution counsel's submission to the jury, there was a similarity between the way the accused walked in the overalls before the jury (and indeed in the way he walked between the dock and the witness box) and the gait which Mrs Gleeson observed. The evidence was that the offender was wearing a shirt or t-shirt under the overalls, and that the overalls looked baggy. According to prosecution counsel's final address, so did the overalls worn by the accused. And defence counsel said that the accused looked like "a Michelin man" in them. Prosecution counsel was careful to ensure, after the accused had expressed willingness to put the overalls on over what he was already wearing, that the accused remove his outer garments first. She was thus attempting to bring the conditions before the jury as close to the conditions described by the witnesses as possible.

184. The appearance of the accused walking in overalls in front of the jury was capable of making an impression on the jury which was favourable to the accused (as his counsel submitted in final address) as much as it was capable of causing an impression adverse to him (as prosecution counsel submitted). Either way the evidence was relevant.

185. Exclusion under s 137. Should the three events have been excluded under s 137? Save in one way, there was no respect in which those events created any danger of "unfair prejudice to the accused" - that is, prejudice over and above the damage to his position caused by the probative value of the evidence. The exception was the period during which the accused sat wearing the balaclava in the presence of the jury, until prosecution counsel told him to remove it, while debate took place about whether it was legitimate for prosecution counsel to describe what the accused looked like. If prosecution counsel was entitled to ask him to wear the balaclava, it was only necessary that he do it for a brief period, while the jury observed the accused. For the accused to sit with the balaclava on for some minutes during the debate should not have happened and was irregular. If this irregularity constituted a miscarriage of justice, it was not a serious one, for the following reasons. Defence counsel, who had objected to the balaclava being donned, failed to apply for it to be removed, his concentration being apparently absorbed by a fiery debate about the correctness of prosecution counsel's course. The vigorous character of that debate may have riveted the attention of the jurors on the exchanges between counsel and judge, and thus distracted them from gazing at the accused. The debate did not last long. Viewed in the context of the case as a whole, which lasted 10 days, the incident was brief and insignificant. It will, however, be returned to in relation to the application of the proviso.

…

195. The true construction of s 53. Section 53 does not apply to what happens in the courtroom at the trial, for the following reasons.

…

223. This argument of prosecution counsel is correct. The evidence of the eyewitnesses about what they saw and heard, and the video film and photographs, were admitted without objection. In evaluating it (and counsel for the accused was correct to submit that the video film and photographs were of very poor quality), the jury were entitled to look at the accused in the dock - noting his age, the colour of his hair and skin, his build. When he walked from the dock to the witness box they could take note of his style of walking. The evidence elicited by prosecution counsel about his age, hair colour, skin colour and build was admissible and not objected to. As he answered questions the jury could compare his voice with the descriptions given by eyewitnesses of the offender's voice. All these matters could be taken into account because the "events that occur in the presence of a jury in the regular course of a trial are material which the jury can - as it no doubt does - take into account in the finding of contested facts". The three events to which exception is taken were nothing more than techniques for highlighting particular features of resemblance which the accused may or may not have had with the offender. They did not involve him demonstrating anything about what happened; they simply involved him revealing particular features of his appearance, gait and pronunciation, as revealed in sentences similar to those the offender was said to have uttered. Even if s 53 applies to in court conduct, they were not "demonstrations" designed, in the language of s 53(3)(d), to "reproduce the conduct or event to be demonstrated".

Crennan J (Agreed with Heydon J)

266. I agree with Heydon J that the appeal should be dismissed and I agree with his Honour's reasons.

McClellan CJ at CL

1. I agree with Hidden J.

Hidden J

2. The appellant, Saleh Mahmoud Jamal, was alleged to have been one of seven men involved in a drive-by shooting at Lakemba Police Station in the early hours of 1 November 1998. A number of shots were fired at the police station from a slowly moving car. There were at least sixteen shots, and they were later established by ballistics evidence to have been discharged from four, possibly five, different firearms. Five police officers were in the police station at the time. They promptly took cover and, fortunately, none of them was shot.

..

26. In the course of the hearing of pre-trial issues, the Crown made an application for a view, that is, an inspection under s 53 of the Evidence Act 1995, of the scene of the shooting. This was opposed by defence counsel on the basis, firstly, that it would be of no real benefit to the jury and, secondly, that at such a view the appellant would be shackled and subject to high levels of security. The appellant was in custody at the time and, for reasons which need not concern us, was classified as an "extreme high risk" inmate. Nevertheless, defence counsel told her Honour that, if there was to be a view, the appellant wished to be there and pointed out that he was entitled to be present. The Crown prosecutor said that the appellant would be able to attend and would be held inside a car outside the police station. The police station itself was cramped and, while the jury was inside, the trial judge and the lawyers would remain outside. He confirmed that nothing would be said to the jury during the view.

27. Evidence was subsequently led by a senior police officer that if the appellant attended the view, he would be held within a cage in a secure Corrective Services vehicle. That vehicle would have tinted windows, but the appellant would be visible from outside on a closer viewing. He would be wearing orange overalls and a restraining belt, to which would be attached shackles to his hands and feet. In these circumstances, the trial judge decided that the view should take place in his absence and that there would be no need for him to be there. She observed that he would be represented by his counsel, and that the jury would simply make observations without anything being said by anyone.

28. Trial counsel for the appellant initially responded by saying "I'm not going to cavil with that." However, he put on record that he had "very firm instructions" from the appellant that he wanted to attend. Her Honour repeated her view that there was no necessity for him to be there because he would be represented by counsel. She added that she took into account the question of whether the parties would be present, as required by s 53(3) of the Evidence Act, but affirmed her decision that there was "no necessity for the accused to be present because he will be represented by counsel." Accordingly, during the trial the view took place in the appellant's absence. Ground 3 complains that her Honour fell into error in ordering the view.

…

30. From the terms of subs (2)(a), it is apparent that the appellant had a right to be present at the view. A reasonable opportunity for the parties to be present is a essential requirement for a view to be directed. Both the requirements of subs (2) were described as "mandatory" by Pepper J in Environment Protection Authority v Unomedical Pty Ltd (No 2) [2009] NSWLEC 111 at [7]. Her Honour appears to have seen the question whether the appellant would be present at the view simply as one of the matters to be taken into account under subs (3)(a). That provision, however, does not affect the mandatory prerequisite of subs (2)(a).

31. Of course, what subs (2)(a) requires is a reasonable opportunity for the parties to be present. A party may choose not to be. Early in the life of the Evidence Act, Hunt CJ at CL confirmed that in a criminal trial an accused may elect not to attend: R v Milat (Hunt CJ at CL, unreported 12 April 1996). The Chief Judge, sitting as a trial judge, was considering whether a view should be held, having been informed that the accused did not wished to be present at it.

…

35. The entitlement under subs (2)(a) of an accused to be present at a view is, of course, consistent with longstanding authority affirming that, generally speaking, an accused should be present at every stage of a criminal trial. In Lawrence v The King [1933] AC 699, Lord Atkin, giving the opinion of the Privy Council, said at 708:

"It is an essential principle of our criminal law that the trial for an indictable offence has to be conducted in the presence of the accused: and for this purpose trial means the whole of the proceedings, including sentence."

(His Lordship went on to acknowledge an exception in cases of misdemeanour, as opposed to felony, but that distinction has passed into history.)

…

41. In this court, the Crown prosecutor focused on the discretion conferred by s 53(3) and submitted that, given the manner in which the view was conducted and the fact that the appellant's counsel was present, there had been no miscarriage of justice. The fact remains, however, that the view took place in the absence of the appellant, contrary to the mandatory requirement of subs (2)(a). It was not suggested that the level of security required by the appellant's high risk status bore on the question whether there could be a "reasonable opportunity" for him to be present, within the meaning of that provision. In my opinion, his absence from the view means that the trial was fundamentally flawed. Indeed, in oral argument the Crown prosecutor acknowledged that if the court found this ground established, the trial could not "be saved."

…

46. The conduct of a view in breach of the statutory requirement to provide the accused with a reasonable opportunity to be present constitutes a fundamental flaw in the trial process. This ground is made out and, standing alone, would be sufficient to establish that the conviction must be set aside. However, as there is to be a new trial, it is necessary to consider the remaining ground of appeal which is directed to evidence of a consciousness of guilt.

Rothman J

61. I agree with Hidden J.

Basten JA

1. On 2 December 2009, after a trial running for more than 20 days, the applicant was convicted by a jury on a charge of murder. The crime resulted from the shooting of the deceased, one Solomon Penitani, at Churchill's Sports Bar in Kingsford on 26 April 2008.

…

4. It was evident that the jury might well be assisted by a view of the premises. One purpose of the view was to identify the locations of the various CCTV cameras, in order to understand what was shown on the available footage. A view took place on the fourth day of the trial. The applicant did not attend.

5. The short point at the heart of the appeal was whether the trial judge, Buddin J, caused a miscarriage of justice by proceeding to a view with the jury in the absence of the accused. It was not in doubt that the view could take place in the absence of the accused, who was represented by his solicitor and senior counsel. Rather, the basis of the appeal was that the accused was entitled as a matter of law to attend if he wished to do so and, although counsel told the judge that the accused agreed to the view proceeding in his absence, he said he was induced to take that position as a result of an erroneous statement by the trial judge, confirmed by counsel, that he had no entitlement to be present.

…

Right of accused to attend view - legal principles

20. The starting point for the applicant was the "essential principle of our criminal law that the trial for an indictable offence has to be conducted in the presence of the accused": Lawrence v The King [1933] AC 699 at 708 (Lord Atkin). The principle was further described as an "inviolable" rule in respect of a trial for a felony: ibid. The distinction between felonies and misdemeanours no longer exists in New South Wales and the "inviolable" rule has given way to practical considerations. Lord Atkin envisaged a possible exception in the case where "the violent conduct of the accused himself intended to make trial impossible renders it lawful to continue in his absence." Similarly, where the accused deliberately absconds the trial may proceed in his or her absence. In modern parlance, it is the principle of procedural fairness which requires that an accused must be given every reasonable opportunity to attend his or her trial. However, it is a right and not an obligation: if the accused refuses to attend he or she cannot later demand that a conviction be quashed on the ground of his or her absence: Karamat v The Queen [1956] AC 256 at 265 (PC, Lord Goddard CJ); cf R v Hallocoglu (1991) 29 NSWLR 67 at 72 (Hunt CJ at CL).

…

24. The potential importance of a view cannot reasonably be gainsaid. Similarly, the potential importance of the presence of the accused is also beyond contradiction. A view is often undertaken with a "shower", that is someone who points out particular features of the premises to the judge and members of the jury. There is undoubtedly room for mistakes, misunderstandings and the possibility that changes have occurred since the events in question, which the accused may be aware of but which are not identified to the jury. The simple proposition that the accused has a right or entitlement to be present during a view should be accepted as a fundamental element of procedural fairness in a criminal trial.

25. The entitlement is for the benefit of the accused: it is not an obligation which can be imposed on the accused at the potential cost of causing prejudice. It is not uncommonly the case, especially in relation to serious crime where the accused has been refused bail, that significant security steps may be taken to ensure that he or she does not abscond. Thus, the jury are likely to see the accused shackled, in prison uniform and with guards in attendance. In one case, the accused was taken to the view in a prison van: R v Crossman [2011] QCA 126; [2011] 2 Qd R 435 at [22]. In applying relevant provisions of the Queensland statutes, the Court in that case (Chesterman JA, Fraser JA and Cullinane J agreeing) held that "the trial judge could not compel the appellant to attend the view and the order that he do so was made without power so the making of it was an error of law": at [32].

…

33. That passage was said to involve a clear indication from the trial judge that the accused had no right to attend the view and that it was not normal for the accused to be present. However, the passage, read as a whole, is by no means unequivocal. Although it commenced with the judge saying that "it", apparently referring to the attendance of the accused at a view, did not necessarily happen as of right, in the final passage he also appeared to assume that if the accused wished to be present then that wish would be accommodated.

…

37. It is sufficient for present purposes to note that neither provision in its terms confers a right on an accused to be present at a view. Further, the requirement in s 53 that the judge be satisfied that the accused "will be given a reasonable opportunity to be present", in contrast to the position of the judge and jury who will be present, assumes that there is no obligation for the accused to attend.

…

42. If it were necessary to determine which of the accounts given by the applicant and senior counsel was more likely to be correct, I would prefer the evidence of senior counsel. There was no suggestion that his understanding of the law or practice in criminal trials was deficient in any respect. The decision-making process he recounted was entirely plausible. On the other hand, the applicant, in an affidavit sworn in October 2013, was giving evidence of events and beliefs formed at the very beginning of his trial, in October 2009. Further, although in colloquial terms one may understand why a person says that he "reluctantly" agrees to forego something to which he has not right, it is more likely that his reluctant agreement was to forego a right for practical reasons.

Fullerton J

45. I agree with Basten JA.

Davies J

46. I agree with Basten JA.

Maxwell P

1. I have had the advantage of reading in draft the reasons for judgment of Priest JA. His Honour’s discussion of the procedures to be adopted when a jury is taken for a view will provide invaluable guidance for trial judges. For the reasons which his Honour gives, I too would refuse both applications for leave to appeal.

Weinberg JA

2. I agree with Priest JA that leave to appeal against both conviction and sentence should be refused. I would add only this. I particularly endorse his Honour’s observations regarding the importance of a record of some sort being made of what transpired during the course of a view.

3. This was perhaps less critical before the enactment of the Evidence Act 2008. As s 54 makes clear, a view in a criminal trial is no longer merely a mechanism for enabling the jury to better understand the evidence that is to be, or has been, led. A view is now itself a separate and distinct source of evidence. For that reason, it is desirable that some record of what the jury saw, and any questions that they raised, be maintained.

4. If it is the case, as I understand it to be, that some trial judges regard this process as a pointless formality, they should perhaps reflect upon the need for an appellate court to have available to it as much information as can reasonably be gathered regarding the material upon which the jury may have based their verdict.

Priest JA

5. Following a trial in the County Court, on 7 February 2014 the jury found the applicant guilty of eight charges of indecent assault. On 20 March 2014, the trial judge sentenced him to a total effective sentence of four (4) years’ imprisonment, upon which she fixed a non-parole period of two (2) years.

6. The applicant sought leave to appeal against both conviction and sentence. So far as conviction is concerned, the applicant relied on two grounds:

The Learned Trial Judge ordered an inspection of the pharmacy premises. Following the inspection, the Learned Trial Judge erred in that:

The Learned Trial Judge failed to adequately place the inspection on the record and failed at all to place the inspection on the record in the presence of the jury; and

The Learned Trial Judge failed to give the Jury directions at all following the view.

The verdicts of the Jury are unsafe and unsatisfactory; and in particular, a properly instructed and reasonable Jury ought to have entertained a reasonable doubt as to the Applicant’s guilt on each count.

…

10. The applicant, a pharmacist, operated a pharmacy in Cranbourne. At the time of the offending he was aged 50 years. The complainant, PS, was aged 14 years.

11. On 10 April 2012, the complainant and her mother went to the applicant’s pharmacy to make a purchase. During that visit, the complainant accepted the applicant’s offer to work at the pharmacy.

12. A little over a week later, on 18 April 2012, the complainant worked her fourth shift at the pharmacy. During the shift, whilst purporting to take PS’s measurements, the applicant touched her in and around her vaginal area and breasts, sucked her left nipple and kissed and licked her neck.

…

15. An application by defence counsel that there be a view of the pharmacy premises was granted. It took place after the prosecutor’s opening to the jury and defence counsel’s response, but before any evidence was called.

…

18. When the Court next resumed following the view, the prosecutor alerted the trial judge to the ‘Bench notes’ on views, which indicate that there should be a summary provided of what took place. The judge indicated that in her experience as a barrister and judge she had not done what is suggested in the Bench notes; expressed the view that ‘there is some danger attached to it’; and said that she could not see the point of doing so. In response, the prosecutor reminded the judge that, ‘A question was asked about boxes, [and] Your Honour indicated that they wait for the evidence as well’. When again her Honour said that she could not see the point of summarising what occurred, the prosecutor submitted that, ‘it’s something that, as I read [it can] assist an appellate court to know what took place at the view’, and said, ‘the only way that an appellate court could look at what took place on the view would be if it was placed on the record here‘. Somewhat grudgingly, it seems, the trial judge then said:

Well I’m sorry, but — all right, for the purposes of an appellate court if it ever went there. ... Your Honours, we went out to the pharmacy to have a look at the inside — interior so that the — inside and the layout of the pharmacy was better understood and — I must say I actually think it’s — that is nonsense and that’s all I’m prepared to do, all right.

19 Defence counsel did not demur from what the judge had said — either as to her Honour’s lament concerning the perceived pointlessness of the exercise, or as to the content of her summary of what occurred at the view — and sought no further directions. He neither asked the trial judge to supplement her summary of what had occurred at the view, nor sought any further directions to the jury as to the manner in which they should treat the view. The following exchange encapsulates defence counsel’s attitude:[4]

HER HONOUR: Yes but if I start talking about it, it becomes — the chances of me giving evidence about — or directing the jury about what they actually saw, it’s none of my business. It’s a matter for them what they saw on the view.

[DEFENCE COUNSE]: That’s right, the only time you’d interfere would be if you felt something had gone wrong or contrary to law and then ---

HER HONOUR: Nothing’s gone wrong ---

[DEFENCE COUNSE]: No we — I agree, nothing went wrong.

HER HONOUR: So my talking to the jury about what happened on a view, is in my view, as I said, I think it’s nonsense and I think it’s dangerous.

[DEFENCE COUNSE]: No I have nothing further to add Your Honour              

20. With respect, her Honour’s experience as to what should occur following a view does not accord with my own, which is more in line with the second sentence of the ‘Bench Notes: Views’ to which reference was made. The Bench Note is in the following terms:

Historically, one argument against using views as evidence was that there was no way for the results of the view to be transmitted to an appellate court. To overcome this problem, upon returning to court, judges should sum up (in the presence of the jury) what transpired, so that there is an accurate record of what occurred on the transcript (see, e.g., R v FD (2006) 160 A Crim R 392).

21. I should pause to remark that her Honour gave no reason why she thought that there was some ‘danger’ attached to providing a summary. What the danger might be in providing a summary is somewhat baffling. Judges provide summaries daily in other contexts. Thus, by way of example, if a witness manually indicates height, width or length, the unvarying practice is for the judge — with the assistance of counsel — to translate that into words so that it might be recorded on the transcript. Similarly, if a witness provides a demonstration of a punch or blow or other physical action, the judge ensures that an adequate description is made for the purposes of the transcript. I am unable to guess what ‘danger’ her Honour had in mind, since, as I have said, she did not articulate it. But it seems to me that it should be within the capacity of a trial judge, with a helping hand from counsel, to provide an adequate summary of what occurred on a view without that exercise being accompanied by any particular danger. Ordinarily, the giving of an adequate summary would not be a very onerous exercise.

22. Counsel for the applicant submitted that the failure of the trial judge to provide a summary of what occurred at the view led to a miscarriage of justice because of a risk that the jury acted upon something that was not present. He submitted that, absent such a summary, some unknown extraneous material might be used by the jury. Counsel pointed out that the jury had, on one reading of the transcript, asked more than one question; and that, at the very least, the transcript showed that the jury had asked a question ‘about boxes’, the precise nature of which was not revealed by the submissions made by counsel or the judge’s remarks. A critical piece of evidence in the case concerned the visibility of the complainant to customers of the pharmacy or the medical centre while she was in a state of undress. She had said that she was in her underpants for at least ten minutes, and described a number of cardboard boxes stacked up in a way that allowed her to be unseen. Thus, so it was submitted, the size of the pharmacy and its layout were of great importance to the case. Without a summary by the judge it was impossible to know what the jury were capable of seeing. This Court was deprived of the opportunity of exercising its jurisdiction, because the Court was unable to assess what inferences might have been open to the jury from their view of the premises.

…

25 The section permits a jury to draw inferences from what it sees, hears or notices during an inspection (or view). Thus, the inspection or view itself constitutes the evidence from which inferences may be drawn. In the same way that a jury might examine photographs or plans, or inspect an exhibit which is a piece of real evidence (such as a knife or other object), and draw inferences of fact, a jury is entitled to use what they saw, heard or noticed as evidence during an inspection or view, and draw inferences of fact. In this case, the jury, having viewed the pharmacy, would have been entitled to draw inferences from what they saw or noticed. Thus, by way of example, there being controversy at trial as to what customers within the pharmacy might have been capable of seeing of the rear area, the jury would have been capable of drawing their own conclusions about that aspect from the court-ordered view.

26. Where an inspection or view differs from other evidence, however, is that — unlike a photograph or a plan or a physical exhibit which are available to an appellate court to scrutinise — absent some record having been made of the inspection or view, the appellate court is deprived of knowing precisely what the jury observed (and the manner in which they observed it). In some cases — this not being one — the absence of a record may make it impossible to say, for example, whether a particular inference was properly open to the jury. In other cases, it might make it difficult to say whether the inspection or view was attended by any impropriety.

27. As I have said, counsel for the applicant submitted that, without a summary of the view by the judge, it was impossible to know what the jury were capable of seeing. In my view, however, this Court is able to make an adequate judgment about that from the tendered photographs, so that counsel’s submission on that aspect is not persuasive.

28. More troubling is the failure to record questions asked by the jury. Such record that does exist, however, indicates that a juror, or jurors, asked a question about boxes, and the judge told the jury to wait for the evidence. It would have been better if an adequate record had been made of the question or questions, and the judge’s response, but in the circumstances I cannot see that justice has miscarried. Indeed, I would not be prepared to infer any error or impropriety in the face of defence counsel’s assertion that ‘nothing went wrong’. Further, given counsel’s remark, I would not be prepared to act on the submission made in this Court that, absent such a summary, some unknown extraneous material might have been used by the jury.

29. As I earlier observed, the judge indicated that in her experience as a barrister and judge she had not done what is suggested in the Bench notes and provided a summary of the view. Her Honour’s experience, it must be said, does not accord with my experience. It is a common practice, in my experience, to record, in some fashion, what has occurred on a view. That has been achieved in a number of ways. Thus, there have been occasions in the past when a shorthand writer has accompanied the judge, jury, counsel, accused, court staff and selected others, and the judge has provided a narrative as the view unfolded which, when the trial resumed, was read into the trial transcript. On other occasions, when there has not been a contemporaneous shorthand or other note made, shortly following the view the judge has, in the courtroom, provided a summary — with the assistance of counsel — for the purposes of the transcript. There have been occasions, in my own experience, when evidence has been taken in the course of the view, so that a witness has been able to indicate salient features of a place or thing as part of his or her evidence in the course of the view. (There was, of course, a record made of the evidence as it was given.)

30. In my opinion, there should have been some record made of the view, whether by a summary from the judge read into the transcript, or by other means. The trial judge’s description that ‘we went out to the pharmacy to have a look at the ... interior so that the ... inside and the layout of the pharmacy was better understood’ was, with respect, inadequate. For the reasons discussed, however, its inadequacies have not led to a miscarriage of justice.

31. I should not leave this topic, however, without providing some guidance for future cases. Where a judge in a criminal trial is satisfied in accordance with s 53 of the Evidence Act 2008 that there ought be a view of a premises, place or thing, it may be desirable to swear a ‘shewer’ (or ‘shower’) to show the jury the place or thing to be inspected. (Indeed, it has been this Court’s experience that it is a common, although not invariable, practice to swear or affirm a shower; and, in any event, jury keepers have always been sworn for the purpose of the view.) It will be necessary, of course, for the judge and jury to be present, and for the parties be given a reasonable opportunity to be present; and it will be desirable for the jury to be accompanied by a keeper or keepers. A record of what occurred should be kept. This may be achieved by arranging for a video to be made by an appropriate person (without, of course, identifying the jurors); or 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. (This is particularly important, of course, if the view involves a witness giving evidence of some matter whilst the view is conducted.) At the very least, the judge, upon returning to court, should — with any necessary input from counsel — describe what occurred with moderate detail. The degree of detail will, of course, be dictated by the particular circumstances.

32. The judge’s summary must, of necessity, be confined to what took place — where the jury were taken, which places or things they inspected and from what vantage points. In contradistinction to the position in a trial by judge alone, it will not be necessary for the judge to include any of his or her own conclusions as to what was observable. (One reason for the judge’s reluctance in the present case was a proper concern not to be ‘directing the jury about what they actually saw’.) The summary should also include any questions of substance asked by jurors in the course of the view, together with the judge’s answers. Preferably, the procedure for dealing with such questions should be discussed with counsel before the view commences. And as with other questions asked by the jury in the course of the trial, it may be necessary to invite submissions from counsel before providing an answer.

Bellew J

1. Roger Caleb Rogerson and Glen Patrick McNamara have each pleaded not guilty to an indictment alleging:

(i) the murder of Jamie Gao (“the deceased”) on 20 May 2014; and

(ii) the supply, on the same day, of a prohibited drug, namely 2.78 kilograms of methylamphetamine, being an amount not less than the large commercial quantity applicable to that drug.

2. By notice of motion dated 31 July 2015 the Crown has made application that in the course of the trial of the two accused a view be held, pursuant to s. 53 of the Evidence Act 1995 (NSW) (“the Act”), of various locations where, on the Crown case, relevant events took place. The notice of motion is supported by an affidavit Karl Robert Prince, a solicitor employed by the NSW Director of Public Prosecutions. Mr Prince is instructing the Crown Prosecutor in the trial.

…

8. Before making an order that a view take place, I must firstly be satisfied of each of the matters set out in s. 53(2). In that respect, I am satisfied that each of the accused will be represented by counsel at the view. I will also be present, along with the jury.

9. In determining whether to make an order that a view be held I am also required to take into account (to the extent that they apply to a view, as opposed to a demonstration or experiment) the matters in s. 53(3)(c) to (e) inclusive.

…

15. In light of these matters, I am satisfied that it is appropriate to conduct the view.

16. In the circumstances, and for the purposes of the conduct of the view, I propose to adopt the guidelines set out by Priest JA (with whom Maxwell P and Weinberg JA agreed) in Ha v R [2014] VSCA 335 at [31]- [34]…

…

17. I note that the parties have previously been referred to this decision and that the Crown has submitted the guidelines set out by Priest JA ought be followed. No contrary submission has been advanced by counsel for either of the accused.