Director of Public Prosecutions v Scriven (Ruling No. 3)
[2015] VSC 219
•12 February 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2013 0181
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WILLIAM SCRIVEN |
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JUDGE: | MAXWELL P |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 February 2015 |
DATE OF RULING: | 12 February 2015 |
CASE MAY BE CITED AS: | DPP v Scriven (Ruling No. 3) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 219 |
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CRIMINAL LAW – Trial – Evidence – Procedure – View – Recording of view – Jury taken to inspect crime scene – View led by sworn shewer – View conducted according to agreed instructions from counsel – Video-recording of view – Jury questions – Questions repeated to camera by trial judge – Counsel elected to stand apart – Whether procedure irregular – Prosecution application for discharge of jury – Application refused – Jury request to see video record of view – Request granted – Ha v The Queen [2014] VSCA 335 applied – Evidence Act 2008 ss 53, 54, Criminal Procedure Act 2009 s 223(1).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M Williams QC with Mr G Hayward | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
| For the Accused | Ms R Shann with Ms A Beech | Leanne Warren & Associates |
MAXWELL P:
The application for a view
At the final directions hearing before the trial in this matter, defence counsel informed the Court that they would be seeking an order that there be a view of the street in which the fatal stabbing occurred.[1] I informed counsel that, if there were to be a view, I would be taking steps to ensure that a proper record was made of what took place on the view, consistently with what was to be said in a forthcoming judgment of the Court of Appeal.
[1]Evidence Act2008 s 53.
There was a further mention in the week before the commencement of the trial. By that time, the Court of Appeal’s decision in Ha v The Queen[2] had been published, and copies were provided to counsel in this matter. At this hearing, I was informed that it was the joint view of the parties that there should be a view and that this should take place at the conclusion of opening addresses.
[2][2014] VSCA 335 (‘Ha’).
I informed counsel that I was considering arranging for there to be a video recording of the view, that being one of the methods referred to by Priest JA in his judgment in Ha (with which Weinberg JA and I agreed). The prosecutor expressed concern that one or more jurors might be filmed and that this might contravene the Juries Act 2000. I said that arrangements would be made to ensure that no juror was identified.
Before I explain what occurred in this case, I will set out in full what Priest JA said in Ha, as it provides the basis for the course which I adopted.
The decision in Ha
In Ha, the jury had been taken on a view of the location of alleged sexual assaults. During the view, jurors asked questions but they were not recorded; and, despite a request from the prosecution, the trial judge declined to record for the transcript what had occurred on the view. The ground of appeal was that these procedural
failings had caused a miscarriage of justice.
Although rejecting the ground of appeal, Priest JA emphasised the importance of a record being made of what occurs during a view. His Honour said:[3]
[3][2014] VSCA 335 [24]–[34] (citations omitted).
Views in criminal cases are now governed by ss 53 and 54 of the Evidence Act 2008. Section 53, headed Views, permits a judge to order that ‘a demonstration, experiment or inspection be held’. Among other things, in deciding whether to order an inspection, s 53(3)(b) requires the judge to take into account ‘whether the demonstration, experiment or inspection will, in the court’s opinion, assist the court in resolving issues of fact or understanding the evidence’. Section 54 permits a jury to draw any reasonable inference from what is observed on a view. It provides:
54 Views to be evidence
The court (including, if there is a jury, the jury) may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection.
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.
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.
…
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 asservation 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.
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.)
…
I should not leave this topic … 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.
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.
There is much to be said for the guidance to be found in the New South Wales Bench Book:[4]
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.
Unless steps are taken to record what occurred during a view or inspection, an appellate court may be deprived of the opportunity of properly exercising the task of appellate review. Whether or not one accepts that the right to appellate review is a feature of the right to a fair trial itself,[5] nonetheless it is the duty of a trial judge to ensure that an adequate record is made of significant events so that this Court is capable of carrying out its functions and powers.
[4]Judicial Commission of New South Wales, Criminal Trial Courts Bench Book, 667 [4-340] (Views and Demonstrations). (Emphasis added.)
[5]Sinanovic v The Queen (1998) 154 ALR 702, 704 [7]–[8] (Kirby J).
The view in the present case
The jury were empaneled on Tuesday 10 February. The opening addresses concluded later that day. Before the adjournment, I informed the jury that they would be travelling to Traralgon the following day and would be shown around the scene of the fatal stabbing.
I informed counsel that an officer of the Victorian Government Reporting Service (VGRS) would be instructed to make a video recording of the view. Arrangements would be made for that person to stand in front of the jury as the person conducting the view — the ‘shewer’ or ‘shewer’ — took the jury around the various locations.
For this purpose, the prosecution had helpfully prepared a list of instructions for the shewer, concurred in by the defence. These instructions would be used to point out to the jury the particular matters to which they should pay particular attention.
In accordance with the usual procedure, two jury keepers were then sworn in, one being the tipstaff who is assisting me in the trial, Mr Dalton, and the other being a member of staff from the Juries Commissioner’s Office. My associate, Michael Williams, was sworn in as the shewer. The VGRS officer who was to do the filming also took an affirmation, based on a modified version of the jury keeper’s oath, that he would not ‘either during the trial or after it has finished, communicate with any juror about any evidence given or issues raised, directly or indirectly, at the trial’.
The procedure adopted
The jury were taken by bus to Thexton St, Traralgon, accompanied by the jury keepers. I travelled separately with my associates. Counsel and their instructing solicitors likewise made their own way to the location.
On arrival, I greeted the jurors and repeated that Mr Williams would be showing them to various locations in the street in accordance with the ‘script’, a copy of which had already been given to them. By this time, it was 12.30pm. As the temperature was already in the 30s, I urged the jurors to stay in the shade as far as possible. I also said to them that, as they were the adjudicators of fact in this trial, they should raise any questions which they might have as the view progressed.
Mr Williams instructed the jury not to have discussions amongst themselves about what they saw during the view. I was subsequently informed that the tipstaff, Mr Dalton, in his capacity as jury keeper had given them the same instruction during the bus trip. He had told the jurors that their discussions about the case should occur only in the jury room.
The jurors were standing outside No 2 Thexton St. Mr Williams then proceeded to direct their attention to the matters specified in the script in relation to that location. Almost immediately, two jurors indicated that they had questions. One juror asked about the state of the street lighting on the night in question. The other juror asked about the state of lighting on the houses on that night.
During this initial period, both prosecution and defence counsel, together with their instructing solicitors, were standing some distance away. Accordingly, when the questions had been asked, I left where the jury were standing and walked to where counsel were standing and repeated the questions. I asked counsel whether answers could be given immediately or whether more time would be required. After brief consultation, counsel informed me that the questions could not be answered immediately.
At this point, I informed counsel that it seemed to me to be impracticable, and inappropriate, for me to act as a go-between each time the jurors asked a question. I therefore suggested to counsel that they should come and stand with me while the view was taking place, so that they could hear the questions as and when they were asked.
Counsel declined my invitation. They said that they were concerned that, if they were in close proximity to the jury, they might hear conversations between jurors which they ought not to hear.
In those circumstances, and given my stated purpose of ensuring a reliable and contemporaneous record of any questions asked (and any answers given), I informed the jury that I would repeat for the camera any question asked by a juror, so that it could be recorded and later transcribed. I informed the jurors that answers could not be given to their questions then and there and that, by this means, all questions would be recorded to enable answers to be provided in due course. I then addressed the camera and repeated the first two questions which had been asked, about the lighting.
This procedure was followed for the remainder of the view. The jurors asked more than 20 questions. On no occasion did the juror asking the question (or any other juror) object that I had not accurately repeated the question for the camera. At all times, it was Mr Williams who gave the jury their instructions as to the viewing positions they should take up, and as to the matters to which they should pay particular attention. I played no part in that process whatsoever.
At one point, a juror asked whether it was possible for jurors to walk away from the group and make their own observations. I spoke with counsel who confirmed that there was no objection to this course and I advised the jury accordingly.
The only other communications I had with the jurors, apart from hearing and repeating their questions, were for the purpose of shepherding them into the shade. I was particularly concerned to ensure that jurors did not suffer heat exhaustion. After an hour, I decided that all concerned needed a break from the heat and I informed the jurors that we would resume after they had had an opportunity to cool down in the bus and have some lunch and a drink. The view resumed at about 2.20pm, after the lunchbreak, and the same procedure was adopted.
Throughout the view, the cameraman recorded the giving of instructions by Mr Williams and also recorded the various aspects of the scene as viewed from the agreed positions.
Overnight, the VGRS prepared a transcript of the jury questions, as recorded by me. The transcript was provided to counsel the following morning. The questions and answers were subsequently incorporated into the trial transcript. The DVD of the view was also made part of the record of the trial. (As appears from the concluding section of this ruling, I subsequently provided the DVD to the jury, at their request, under s 223 of the Criminal Procedure Act 2009 (‘The Act’).)
There was no conversation in my presence between any of the jurors regarding the case or their observations of the location.
The discharge application
On the resumption the following day, in the absence of the jury, the prosecution applied for a discharge. The basis of the application was what were said to be irregularities in the conduct of the view. Defence counsel said that they also considered the view to have been irregular but did not join in the discharge application.
The prosecution identified two aspects of what had happened which were said to be irregular. The first was that there had been ‘a lot of communication’ of the jury to me without counsel being present. Counsel were aware that I had been recording the jury questions but, according to the submission, it had become apparent that ‘what was being recorded was not all of what was taking place’. The second, and related, objection was that the language in which I had repeated jury questions for the camera was not a record of the actual words used by the jurors in asking their questions. It was said to be a ‘fundamental error’, which could not be cured, that neither the prosecution nor the defence could know the precise terms in which the jurors had asked their questions.
Counsel submitted that I should not have taken part in the view at all. Instead, when a juror asked a question, the question should have been recorded as asked by the juror, in his/her own voice. Alternatively, it was said, the juror could have written the question down on a piece of paper, which could have been retained.
When I asked what unfairness the procedure had occasioned to the prosecution (there being no defence submission that there had been unfairness to the accused), senior counsel contended that the unfairness consisted in the Crown ‘being deprived of knowing exactly what [the jurors] were asking.’ It was submitted that ‘all the parties are entitled to be present and know precisely what has happened. There should not be any conversation with the jury in our absence.’.
As noted earlier, no juror objected to the language in which I contemporaneously recorded that juror’s question. Obviously enough, the jurors were satisfied in every instance that the relevant substance of the question had been accurately recorded. Naturally, I did not attempt to use the precise words which the juror had used but I endeavoured to replicate the question as nearly as possible in the terms in which it had been asked. Unsurprisingly, the questions were all concerned with factual matters relating to such things as lighting, vegetation, and lines of sight.
It was also submitted that, if the trial were to continue and the accused were to be convicted, it would be ‘a walk up start’ for an appeal. I pointed out that this might be thought improbable, given that the defence were making no submission that the conduct of the view had created any risk of a miscarriage of justice for the accused. (In Ha,[6] the absence of complaint from counsel about the conduct of the view was material to the Court of Appeal’s conclusion that what occurred there had not caused a miscarriage of justice.[7])
[6][2014] VSCA 335.
[7]Ibid [28].
No risk of miscarriage
I refused the discharge application and said I would deliver my reasons subsequently. These are those reasons.
Essentially, I was quite satisfied that the procedure adopted for the purposes of ensuring a proper record of what occurred — that is, of what the jurors saw and of the questions they asked — had not crossed any of the boundaries which properly exist between judge and jury. Nor had the procedure deprived counsel of any material information to which they should properly have been privy.
As to the first, the trial judge has, of necessity, a supervisory role in relation to the conduct of a view, just as he/she has a supervisory role in relation to what goes on in the court room. Since the observations of jurors in the course of a view are part of the evidence,[8] and since the conduct of the view is part of the trial, it is for the judge to ensure that what occurs is entirely proper and fair. Moreover, it is for the judge to ensure that jurors are given a proper opportunity to make any observations they wish to make and to ask any questions they wish to ask.
[8]Evidence Act 2008 s 54.
Plainly enough, in the discharge of these responsibilities the judge must be careful to ensure that he/she engages in no communication with jurors about the facts of the case and is not placed in a position of inadvertently overhearing any conversation between jurors about the facts of the case. As noted earlier, the precaution taken in this respect involved both the tipstaff and the shewer instructing the jury not to discuss the case with each other during the course of the view. As I have said, I did not hear any such conversation in the course of the view.
As for the recording of the questions, I considered that I had an additional responsibility because of the novelty of the procedure. Until the judgment in Ha, it has not been the practice to make a video recording of a view. I therefore had the additional responsibility of ensuring that this new procedure functioned properly and fairly.
As already noted, one of the prosecution’s concerns was to ensure that there was no identification of any juror on the film. It followed, in my view, that it would not have been appropriate to have had individual jurors recorded asking their questions. That needed to be done by a third party. In the circumstances, I performed that function myself. It could just as easily have been done by the shewer but the difference is, in my opinion, immaterial. It was perfectly plain to the jury and to counsel what I was doing, and why.
As already noted, counsel elected to stay out of earshot. I understand that practice varies in this regard but, in my respectful opinion, this reflected a misplaced anxiety on counsels’ part. The instruction to the jury not to speak amongst themselves could have been repeated in the presence of counsel and I have no doubt that it would have been complied with.
As it turned out, counsel chose to exclude themselves from what was taking place. That seems to me to be an undesirable course, given that — like the judge — counsel need to ensure that what is going on is both fair and effective. Moreover, having counsel at hand enables the judge to deal much more quickly and efficiently with any procedural question which might arise.
In the circumstances, any distinction between the actual words used by a juror in asking a question and the words used by me in repeating the question for the camera was immaterial. If in the course of a view a juror asked a question concerning a topic of particular sensitivity, it might be appropriate to have it written down or else repeated for the camera verbatim. But, as I have said, none of the questions asked by this jury was in that category. They simply enquired after matters of fact.
The discharge submission relied on the Court of Appeal decision in HM v The Queen.[9] In that case, a note from the jury to the judge revealed the state of the voting numbers in the jurors’ deliberations. The judge informed counsel about the note but did not disclose the numerical breakdown. Self-evidently, there is no parallel between that case and this.
[9]HM v The Queen [2013] VSCA 100.
Jury request for access to video of view
During the first full day of deliberation, I received a request from the jury for access to the video of the view. Having heard submissions from counsel, I granted the request. These are the reasons I gave at the time.
It seems to me that to provide the video is wholly consistent with the manifest intention of s 223(1) of the Act, which was the successor to s 19 of the Crimes (Criminal Trials) Act. Like the former Act, the present Act gives the trial judge power — ‘[f]or the purpose of helping the jury to understand the issues or the evidence’ — to order at any time during the trial that copies of any document be given to the jury, in any form that the trial judge considers appropriate.
It seems clear — and, with respect, it is perfectly understandable — that Parliament intended jurors to be given maximum assistance to understand the issues and the evidence. To that end, the trial judge is given a very wide power (subject of course to any contrary arguments from the parties) to provide documents which the judge considers appropriate and likely to help the jury.
More particularly, it seems to me, there is a direct analogy between this video and the material which has already been provided to the jury. I refer specifically to the photographs and video of the crime scene taken on the morning after the stabbing; the transcript of the evidence; and the transcript of the 000 call.
Now, the photographs and the video of the crime scene do not correspond with observations which any juror made because, of course, they were not there. Nevertheless, these items are properly relied on to provide a visual indication of the scene in the immediate aftermath.
Likewise, the transcripts of the evidence and of the 000 call are not themselves evidence but it is accepted and understood that it is proper for jurors to have those transcripts in order to refresh their memories of the evidence. In short, it is uncontroversial that jurors should have access to documents which can help refresh their memory about the evidence.
The video of the view recorded the instructions given by the shewer, Mr Williams, to the jury, those being the agreed instructions, and then filmed the view lines prescribed in the instructions. This occurred under my overall supervision and I was satisfied at the time that, as far as was practicable, the person doing the filming filmed what the jurors were instructed to view. Naturally, since all of the jurors were standing in slightly different positions, it would be a coincidence if the person filming were standing precisely where any of those jurors had been standing.
As noted earlier, the observations which jurors make on a view are part of the evidence in the trial. As s 54 of the Evidence Act 2008 says, a juror may draw any reasonable inference from what she ‘sees, hears or otherwise notices’ in the course of a view. Self-evidently — and this is accepted by senior counsel for the prosecution — access to the video will assist to refresh the memories of the jurors of what they saw or otherwise noticed. That is to say, it will remind them of the evidence which in this unusual case consists in their own observations.
In this way, the film record of the view is of a like kind to other documents which have, without dispute, been given to the jurors.
It is unnecessary therefore to decide whether this video falls exactly within 223(1)(i) of the CPA as being an ‘audio visual recording of evidence’. It might be said that it is a recording of evidence in the sense that it records the places which the jurors were invited to inspect. Plainly enough, however, it is not — and no film could ever be — a recording of what the juror ‘observed’ or ‘noticed’, that being a mental event, not an act of filming.
At all events, for the reasons I have given, I consider it appropriate (within the meaning of s 223(1)(l)) of the CPA that this document be provided. It seems to me that it will help the jury understand the evidence and, to that end, refresh their memories as to the observations they made during the view.
I should record for completeness that Ms Williams concedes — properly, in my view — that access to the video of the view will occasion no prejudice to the prosecution case. She concedes — again, properly, in my view — the breadth of the power under s 223. Nevertheless, it should be recorded that the Crown expressed concerns about making it available.
For the reasons I have given, I am satisfied that this serves a proper purpose and does not have any risk of distracting or diverting the jury from matters they should be properly attending to.
In providing the video to the jury, I will remind them, as the prosecutor has asked me to, that this is a recording made by someone else and it does not purport to be a view from precisely where any individual juror was standing. It is an approximation and, in the circumstances, the best approximation that is available.
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