R v Cameron Flynn Tully (No 2)
[2014] ACTSC 118
•19 May 2014
R v CAMERON FLYNN TULLY (No 2)
[2014] ACTSC 118 (19 May 2014)
CRIMINAL LAW – EVIDENCE – jury trial – alleged offences occurred on property outside of Canberra – view: s 53 Evidence Act 2011 (ACT) – delay between dates of alleged offences and present time
Evidence Act 2011 (ACT), s 53
EX TEMPORE JUDGMENT
No. SCC 192 of 2012
Judge: Burns J
Supreme Court of the ACT
Date: 19 May 2014
IN THE SUPREME COURT OF THE ) No. SCC 192 of 2012
)
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: REGINA
v
AND:CAMERON FLYNN TULLY
ORDER
Judge:Burns J
Date:19 May 2014
Place:Canberra
THE COURT ORDERS THAT:
The application for a view is refused.
The accused in this matter is charged with sexual offences that are alleged to have occurred in certain buildings on a farm outside Canberra. Counsel for the accused has made an application for a view of the farm pursuant to s 53 Evidence Act 2011 (ACT).
I undoubtedly have discretion under s 53 to order a view of the premises where these offences are alleged to have taken place. Section 53(3) provides matters which I may take into account in deciding whether to make such an order. The matters which are set out in s 53(3) are not exclusive and I may take into account any matters that appear to me to be relevant.
It is of significance, in my view, that quite a long period of time has passed between the dates when these offences are alleged to have occurred and the present date. Some changes have admittedly been made in the structures on the premises such that it cannot be said that any view of the property today will show precisely the same circumstances as existed at the time of these alleged offences.
It is suggested by Mr Livingston, counsel for the accused, that a number of the structures which feature prominently in the allegations against the accused are still in the same form that they were essentially when these alleged offences are said to have occurred and that the jury may be assisted in understanding the evidence by seeing those structures.
The Crown has available floor plans with respect to those structures and also photographs, as I understand, are available at least of the property itself from an aerial view. In the course of taking evidence in the usual way, witnesses may be asked to prepare maps or diagrams or plans which will be available before the jury.
In my opinion, bearing in mind the period of time that has passed since these alleged offences, there is potential for confusion in conducting a view as suggested by the accused. I see no reason why evidence taken in the usual way, including if it is thought desirable, the preparation of diagrams or plans by appropriate witnesses, cannot adequately describe the scene of these alleged offences.
I am not persuaded at the present time that a view is necessary in the interests of justice and as such I decline at this point to order a view.
The application may be renewed at a later time if it becomes appropriate.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 12 June 2014
Counsel for the Applicant: Mr R Livingston
Solicitor for the Applicant: David Lander & Associates
Counsel for the Respondent: Mr J Lundy with Mr T Hickey
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of Hearing: 19 May 2014
Date of Judgment: 19 May 2014
0
0
1