Director of Public Prosecutions v O'Connell (No 2)
[2023] ACTSC 136
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Director of Public Prosecutions v O’Connell (No 2) |
Citation: | [2023] ACTSC 136 |
Hearing Date: | 30 May 2023 |
DecisionDate: | 2 June 2023 |
Before: | Baker J |
Decision: | (1) There will be a view of the area from Coutts Place, Melba, to the intersection of Alfred Hill Drive and Cade Place pursuant to s 53 of the Evidence Act 2011 (ACT). (2) I direct that there be a full road closure of Coutts Place, Melba, to the intersection of Alfred Hill Drive and Cade Place on 6 June 2023 between 10:45am and 12:45pm. |
Catchwords: | CRIMINAL LAW – CRIMINAL PROCEDURE – application for a view of site of alleged offending – s 53 of the Evidence Act 2011 (ACT) – procedures to be adopted in view |
Legislation Cited: | Evidence Act 2011 (ACT) s 53 Evidence (Miscellaneous Provisions) Act 2011 (ACT) Juries Act 1967 (ACT) s 47 |
Cases Cited: | DPP v O’Connell [2023] ACTSC 131 Ha v R [2014] VSCA 335 Jack William Aston v The Queen [2019] VSCA 225; 90 MVR 62 R v NZ [2005] NSWCCA 278; 63 NSWLR 628 R v Rogerson; R v McNamara (No 10) [2015] NSWSC 1067 Stevenson v The Queen [2022] NSWCCA 133 Tongahai v The Queen [2014] NSWCCA 81; 241 A Crim R 217 |
Texts Cited: | Criminal Trial Courts Bench Book, Judicial Commission of New South Wales (2007) |
Parties: | ACT Director of Public Prosecutions ( DPP) M O’Connell ( Accused) |
Representation: | Counsel M Smith ( DPP) S McLaughlin ( Accused) |
| Solicitors ACT DPP ACT Legal Aid ( Accused) | |
File Number: | SCC 251 of 2022 |
BAKER J:
Introduction
By oral application the prosecution seeks an order pursuant to s 53 of the Evidence Act 2011 (ACT) (“Evidence Act”) that there be a view of the area from Coutts Place to the intersection of Alfred Hill Drive and Cade Place. The accused consents to this application.
I made the order for a view on 30 May 2023. These are my reasons for doing so.
Legislation
Section 53 of the Evidence Act 2011 (ACT) provides as follows:
53 Views
(1) A judge may, on application, order that a demonstration, experiment or inspection be held.
(2) A judge must not make an order unless satisfied that—
(a) the parties will be given a reasonable opportunity to be present; and
(b) the judge and, if there is a jury, the jury will be present.
(3) Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge must take into account the following:
(a) whether the parties will be present;
(b) whether the demonstration, experiment or inspection will, in the court’s opinion, assist the court in resolving issues of fact or understanding the evidence;
(c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time;
(d) in the case of a demonstration—the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated;
(e) in the case of an inspection—the extent to which the place or thing to be inspected has materially altered.
(4) The court (including, if there is a jury, the jury) must not conduct an experiment in the course of its deliberations.
(5) This section does not apply in relation to the inspection of an exhibit by the court or, if there is a jury, by the jury.
Determination
I am satisfied of each of the requirements of s 53 of the Evidence Act.
The parties will be given a reasonable opportunity to be present (s 53(2)(a) of the Evidence Act). The accused is presently in custody, and the accused’s counsel has informed me that the accused does not seek to be present at the view. There is no requirement for the accused to attend: Tongahai v The Queen [2014] NSWCCA 81; 241 A Crim R 217 at [37]. The accused will be represented by his counsel and an instructing solicitor. The prosecution will also be present (s 53(3)(a)). I will also be present, with the jury (s 53(2)(b)).
I summarised the Crown case in DPP v O’Connell [2023] ACTSC 131 at [8]-[20]. For present purposes, it is sufficient to note that the events the subject of the trial concern the movement of a car allegedly driven by the accused on Coutts Place, Melba, and into Alfred Hill Drive to the intersection of Cade Place. The prosecution alleges that the deceased was on the bonnet of the car for the duration of the journey, and that she was fatally injured when she fell from the car.
The jury will receive evidence of maps, as well as video footage, of the area. The issues in the trial will require the jury to make assessments which involve an understanding of distances between points depicted in the maps and video. I am satisfied that a view will assist the jury in resolving issues of fact and in understanding the evidence (s 53(3)(b) of the Evidence Act).
The roads in question have not been materially altered. However, I was informed that there has been a renovation of the address in Coutts place where the deceased lived (s 53(3)(e) of the Evidence Act). I also note that the view is proposed to be conducted during the day, whereas the events in question occurred at night. I am satisfied that each of those matters can be dealt with via evidence given by the informant and other witnesses, and by directions in the summing up. In those circumstances, I am satisfied that the view will not be unfairly prejudicial, that it will not be misleading or confusing, and that it will not result in an undue waste of time (s 53(3)(c) and 53(3)(e) of the Evidence Act). There will be no demonstration at the view (s 53(3)(d) of the Evidence Act).
In light of the above matters, I am satisfied that it is appropriate to conduct the view sought by both parties.
The procedures set out in R v Rogerson; R v McNamara (No 10) [2015] NSWSC 1067 at [16] and Ha v R [2014] VSCA 335 at [31]-[34] will be adopted in the view. These include the following.
First, I will appoint a ‘shower’ to show the jury the place to be inspected (s 47(2)(b) of the Juries Act). The parties have agreed on the specific locations that will be pointed out by the “shower” at the view. Those locations will be physically marked by witches’ hats.
I note that the New South Wales Criminal Trial Courts Bench Book, Judicial Commission of New South Wales, 2007 (“NSW Criminal Trials Bench Book”) indicates at [4.3.7] that the Officer in Charge of the investigation is typically nominated as the ‘shower’. In contrast, in Victoria the ‘shower’ is usually a member of court staff, who has previously undertaken a ‘dry run’ of the view with the assistance of the informant, and it is only in an exceptional case that the informant is sworn as the ‘shower’: Jack William Aston v The Queen [2019] VSCA 225; 90 MVR 62 at [90] – [93].
In the present case, the parties agree that the Officer in Charge is to be appointed as the ‘shower’. I agree that this course is appropriate. There are a number of locations that will need to be pointed out to the jury. This should be done by a person who is well familiar with those exact locations. In my view, there is a risk of miscommunication or misunderstanding if a person unfamiliar with those locations performs the role of the ‘shower’ on the view.
Second, the jury will be accompanied by Sheriff’s Officers (the “jury keepers”) who will be sworn specifically for the purposes of the view (s 47(2)(a) of the Juries Act). The Sheriff’s Officers will ensure that no person communicates with any member of the jury, other than as directed by the judge.
Third, a video will be taken by the Australian Federal Police as a record of the evidence given by the ‘shower’ on the view. An audio recording (made by a court employee) will also be made of that evidence. The video will not record the identity of any juror.
I note that in the NSW Criminal Trials Bench Book (cited in Ha at [33]) it is suggested that the video recording of the view may be admitted into evidence as an exhibit. The parties have agreed that in the present case, the video recording should not be admitted into evidence as an exhibit. I also agree with the parties on this issue. The recordings of other witnesses which have been played as their evidence in the trial are not exhibits, and will not be given to the jury for unsupervised use in the jury room: see ss 52(1)(b) and 62(3)(b) of the Evidence (Miscellaneous Provisions) Act 2011 (ACT) and Stevenson v The Queen [2022] NSWCCA 133 at [62], citing R v NZ [2005] NSWCCA 278; 63 NSWLR 628 at [210]. In my view, it would be incongruous, and potentially confusing to the jury, for the recording of this aspect of the proceedings to be provided to the jury as an exhibit.
However, a transcript of the evidence given on the view will be made (by the Court transcription service from the video and/or the audio recording), including the evidence of the Officer in Charge as a ‘shower’ and any questions asked by the jury and answers given by the shower. That transcript will be provided to the jury together with the transcripts of other witnesses for use in their deliberations. Still photographs may also be taken of the locations shown to the jury. Those photographs may be tendered in evidence and used by the jury to assist in their understanding of the transcripts during the course of their deliberations. The video recording will be kept on the Court file as a record of what occurred during the view.
Fourth, the jury will be directed that any questions they have during the course of the view must be put in writing. Any such questions will then be vetted by the judge, in consultation with counsel, prior to being asked of the shower by the judge.
The prosecution has informed me that the Australian Federal Police has requested that I make a road closure of the roads that will be attended during the view, so as to ensure the safety of the jury and other persons attending the view. I am satisfied that this is appropriate. I will make this order in the exercise of my inherent jurisdiction.
Orders
The orders of the Court are:
(a)There be a view of the area from Coutts Place, Melba to the intersection of Alfred Hill Drive and Cade Place pursuant to s 53 of the Evidence Act 2011 (ACT).
(b)I direct that there be a full road closure of Coutts Place, Melba to the intersection of Alfred Hill Drive and Cade Place on 6 June 2023 between 10:45am and 12:45pm.
| I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: A Bucci Date: 2 June 2023 |
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