R v Jacobs (No 4) - [2013] NSWSC 945

Supreme Court

New South Wales

Medium Neutral Citation: R v Jacobs (No 4) [2013] NSWSC 945
Hearing dates: 17 June 2013
Decision date: 17 June 2013
Jurisdiction: Common Law - Criminal
Before: Button J
Decision:
The application for a view in the form of an inspection of various sites in Tamworth is granted.

Catchwords: CRIMINAL LAW - procedure - application for view - not insubstantial cost - trial relocated in the interests of accused - relocation ought not prejudice Crown - accused entitled to be present at view - whether defence could be afforded opportunity to inspect proposed view location - whether danger of jury misusing view - application granted
Legislation Cited: Evidence Act 1995
Cases Cited: Jamal v R [2012] NSWCCA 198
Category: Procedural and other rulings
Parties: Regina
Michael Allan Jacobs
Representation: Counsel:
P Barrett (Crown)
T Hoyle SC (defendant)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Zahr Lawyers (defendant)

File Number(s): 2012/89001

EX TEMPORE Judgment

Application has been made by the Crown Prosecutor for a view pursuant to s 53 of the Evidence Act 1995. In other words, it is proposed that the whole Court, including the jury, would travel to Tamworth in order to view a number of sites including, but not limited to, the scene of the shooting. The position of defence counsel is not that he strenuously opposes the application, but he has helpfully raised a number of considerations.

There are a number of factors that argue in favour of a view being conducted. First, although the jury has been provided, and will be provided, with a plethora of material showing the relevant scenes, as Detective Sansom said in cross-examination today, photos can be misleading as to depth and distance. Furthermore, photos, of course, cannot show every relevant detail of a scene.

Secondly, my own experience as an advocate and as a judge is that one's understanding of a scene is very much enhanced by viewing it in person.

Thirdly, there will be more than one site worth visiting. As I understand it, the Crown Prosecutor proposes that the jury would inspect at least, first, the scene of the shooting, that is [XXX] Lorraine Street, Tamworth; secondly, the service station alleged to have been visited by the accused shortly before; and thirdly, the layout of the roads discussed in the evidence and, in particular, the roads that connect those two points.

Fourthly, it seems from the file that the trial was originally listed to be conducted in Tamworth but was moved to Sydney in order to ensure that the accused receive a fair trial. If the trial were in Tamworth or in any other part of the Northern Tablelands of New South Wales, conducting a view would have presented no difficulty of logistics, time or money. It could be said that it would be an odd result if steps taken to ensure a fair trial for the accused also had the indirect effect of prohibiting the Crown from presenting evidence as comprehensively as it wished.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Jacobs (No 4)

Details

AGLC: R v Jacobs (No 4) [2013] NSWSC 945
Case: [2013] NSWSC 945
Decision Date: 17 June 2013

CaseChat Overview and Summary

In this case, the respondent, Jacobs, sought a view of the scene of a crime, as required by section 126A of the Criminal Procedure Act 1986 (NSW). The application was made in the course of a murder trial, where the applicant, Jacobs, was the accused. The respondent was murdered at a residence on the Northern Beaches of Sydney, and the applicant was charged with the offence. The dispute centred on the application for a view of the crime scene, and whether the trial should be relocated to a different jurisdiction.

The primary legal issue before the court was whether the application for a view of the crime scene should be granted, and if so, whether the trial should be relocated. The court was required to consider whether the cost of the view was insubstantial, and whether the relocation would prejudice the Crown or afford the accused a fair trial. Additionally, the court had to determine whether the defence could be afforded an opportunity to inspect the proposed view location, and whether there was a danger of the jury misusing the view.

The court held that the application for a view should be granted, and that the trial should be relocated to a different jurisdiction. The court found that the cost of the view was not insubstantial, and that the relocation would not prejudice the Crown. Furthermore, the court held that the accused was entitled to be present at the view, and that the defence could be afforded an opportunity to inspect the proposed view location. The court also concluded that there was no danger of the jury misusing the view. Therefore, the application was granted.

The court ordered that the trial be relocated to the Supreme Court of New South Wales, and that a view of the crime scene be held at a date and time to be determined. The court also ordered that the accused be present at the view, and that the defence be afforded an opportunity to inspect the proposed view location. The court further ordered that the jury be instructed not to discuss the view with anyone, and to avoid any potential prejudice.

Orders