DPP v Esso Australia Pty Ltd

[2001] VSC 297

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1484 of 2000

DIRECTOR OF PUBLIC PROSECUTIONS

v

ESSO AUSTRALIA PTY LTD

R U L I N GNo. 15

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF RULING:	15 June 2001
CASE MAY BE CITED AS:	DPP v Esso Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2001] VSC 297

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Criminal law – evidence – exhibit tendered – experiment by jury prohibited.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	R. Richter QC with N. Clelland	Office of Public Prosecutions
For the Accused	M. Titshall QC with M. Hennessy	Middletons Moore & Bevins

R U L I N GNo. 15

HIS HONOUR:

1. I am persuaded by Mr Titshall that exhibit 50 should have removed from it the bicycle pump and the later dial.  Both the bicycle pump and the later dial have been the subject of evidence and the jury will be reminded of that evidence bearing upon whether the exhibit was or was not working at the time of the rupture on 25 September 1998.  That is a historical fact as to which evidence has been led.

1. I think it is incorrect in law and undesirable in fact that the jury has the opportunity in its jury room of conducting its own experiments.  They would, of course, have been given directions by me not to conduct experiments, but I think a fine line exists between, on the one hand, in the jury room conducting that which is permissible, such as running a finger along the knife to see if it is sharp or pulling the trigger to see the tension, and on the other hand doing that which is not permissible, namely an experiment.  In the first category would be using the bicycle pump to see whether the dial went around, and in the second category would be to see whether there is any interference in the operation of the indicator gauge on release.  Accordingly it seems to me that it would be certainly prudent for the jury not to have it, and I think also as a matter of law the jury should not have it under the general principles of non-experimentation such as Scott v. Numurkah Corporation and like cases.

1. Accordingly I will have the bicycle pump provided to my Associate who can use it on his bike.  I will remind the jury of the evidence both as to the pump and as to the dial which was later added to it.  The exhibit will go to the jury as it was as at 25 September 1998, but not in its later manifestations.

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