R v Coss (No 1)

[2022] NSWSC 530

Supreme Court

New South Wales

Medium Neutral Citation:	R v Coss (No 1) [2022] NSWSC 530
Hearing dates:	On the papers
Date of orders:	25 March 2022
Decision date:	28 April 2022
Jurisdiction:	Common Law - Criminal
Before:	Dhanji J
Decision:	Orders sought made.
Catchwords:	CRIMINAL PROCEDURE – murder – view – Crown application for view of various locations – town of Bingara – not opposed – orders made – reasons
Legislation Cited:	Evidence Act 1995 (NSW)
Category:	Procedural rulings
Parties:	Regina (Crown) Bruce Anthony Coss (Accused)
Representation:	Counsel: L Shaw (Crown) M P King (Accused) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Legal Aid NSW (Accused)
File Number(s):	2019/336236
Publication restriction:	Nil

EX TEMPORE Judgment (REVISED)

1. HIS HONOUR: On 25 March this year, I made orders that there be a view in this matter. The orders were in the following terms:

“1. Pursuant to s 53(1) of the Evidence Act 1995 (NSW), and on satisfaction that the parties will have a reasonable opportunity to be present and that myself and the jury will be present, I order an inspection be held of the following locations:

•   The outside of 6 Bassett St, Bingara.

•   The outside of 8 Bassett St, Bingara.

•   The Sportsman’s Hotel, 31 Maitland St, Bingara.

•   Gwydir River crossing, downstream from the East Street bridge.

2.   The Court notes that Detective Senior Constable Brendan Tremain will be the shower for the duration of the inspections.”

2. The orders were made on the basis of an application made by the Crown which was not opposed by the accused.

3. The relevant legislation is s 53 of the Evidence Act 1995 (NSW) which provides:

53    Views

(1)    A judge may, on application, order that a demonstration, experiment or inspection be held.

(2)    A judge is not to make an order unless he or she is 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 is to 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) is not to 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.

4. It was submitted, and I accept, that a view of the locations in the town of Bingara will assist the Court in understanding the evidence with respect to the events which are said to have taken place in the lead-up to, and on the night of, the occasion on which it is alleged the deceased was killed. The location is such that it is not going to take an excessive time in order to attend the scene and conduct the view. Detective Senior Constable Brendan Tremain will be the shower for the duration of the view.

5. In all the circumstances, I was of the view that it was appropriate that the orders sought should be made.

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Decision last updated: 16 June 2022