R v Martin (No 3)

[2017] NSWSC 1251

Supreme Court

New South Wales

Medium Neutral Citation:	R v Martin (No 3) [2017] NSWSC 1251
Hearing dates:	5 September 2017
Date of orders:	05 September 2017
Decision date:	05 September 2017
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	Order that an inspection of the scene of the crime be conducted. Order that the jury not be invited to ascend and descend the stairs of the premises.
Catchwords:	CRIMINAL LAW – evidence – whether inspection of premises should be conducted – view – statutory criteria – whether jury should be invited to ascend and descend staircase – where at least one member of the jury unlikely to be able to ascend staircase – whether view from above provided better perspective for the purpose of drawing inferences – where Crown alleges accused “staged” falling down the stairs – where Crown says injuries not consistent with fall – vertigo
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52
Category:	Procedural and other rulings
Parties:	Regina Michael Phillip Martin
Representation:	Counsel: Mr B G Campbell (Crown) Mr G D Wendler (M P Martin)   Solicitors: Director of Public Prosecutions (Crown) Stuart Percy & Associates (M P Martin)
File Number(s):	2015/00078236; 2015/00120687
Publication restriction:	No publication until conclusion of trial

Judgment

1. Prior to the jury being empanelled in the trial, counsel for the accused made an application that the jury be taken on a view of five or six locations in the vicinity of premises at 18-20 Quarry Road, South Murwillumbah. The Crown did not oppose the conduct of a view of those scenes and suggested that the jury also be shown a couple of other locations in the same vicinity. The parties generally agreed as to the places and things that the jury should be shown but disagreed whether the jury should be invited or directed to ascend and descend a particular set of stairs located at those premises.

2. Pursuant to s 53 Evidence Act 1995 (NSW) I ordered that a view (“inspection”) be conducted of the agreed locations and things. However, I declined the Crown’s application that the jury be invited to ascend and descend the staircase. These are my reasons for those rulings.

3. Section 53 of the Evidence Act 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. As to the prohibition in subs (2), the accused elected not to be present on the view but indicated that both his extremely experienced counsel and his solicitor would be present. Even though the accused is in custody, there was no suggestion that it was not possible for suitable arrangements to be made to allow him to attend on the view.

5. The accused is charged with serious crimes arising out of two separate incidents. Both incidents occurred within the same premises at 18-20 Quarry Road, South Murwillumbah. There are a number of eye-witnesses to the movement of people and things in and around those premises. There is also CCTV footage obtained from premises diagonally across the road from the premises. Further, the parties will invite the jury to draw certain inferences from the direct evidence and from the surroundings in which the events giving rise to both counts unfolded.

6. I formed the opinion that the jury would obtain a greater understanding of the reliability and significance of the eye-witness evidence if they were able to see precisely where the witnesses were when they made their observations, where they said the things were which they observed, and the distances and point of view from which the CCTV footage was taken. While there is a body of photographic evidence, this is no substitute (in the circumstances of the present case) to actually seeing the site, and understanding the distances and perspectives of the witnesses and video footage.

7. The criteria in sub-s (3) militated in favour of a view being conducted. There was evidence (given after the inspection was ordered) that there was no material alteration to the scene. Neither party suggested the jury needed to enter the premises where, it is assumed, there have been significant changes made by the new occupants to what is, in essence, a single room apartment with a small adjacent kitchen and bathroom. Where changes had occurred in the vicinity of the proposed inspection (for example, the erection of temporary building behind the premises), those were easily identified for the benefit of the jury. The alterations were not “material” and would not result in the inspection being confusing or misleading.

8. For those reasons, I acceded to what was a joint application for a view (inspection) of various locations identified by the parties.

9. The Crown submitted that the jury should also be invited or directed to ascend and descend the staircase outside of the flat in which the murder (and the earlier offence) took place. The significance of this was identified as follows: [1]

“Your Honour, having walked the stairs, the descent gives an entirely different impression from the view up and as part of the Crown case is that the injuries the accused had are inconsistent with his description that he rolled down the stairs. For that reason, I was asking the jury to examine the nature of the stairs themselves, including their steepness and length.”

1. Transcript p 89.

10. The reference to the injuries suffered by the accused is a reference to the fact that the accused asserted that he fell down the stairs (or tumbled or rolled down them as he escaped the premises), while he was tied up with “gaffer” tape. This occurred, on the accused’s account, after he was a joint victim of the home invasion which led to the death of his father. The Crown case is that the accused was the perpetrator of the home invasion and that he staged his own injuries.

11. A particular problem with conducting this inspection in the present case is that at least one member of the jury raised with the sheriff a difficulty in using the stairs in the Lismore Court House (which are not particularly steep or onerous to ascend). Special arrangements were made to allow that juror (and, now, the rest of the jury) to depart via an exit that involves less stairs. When this was raised in argument, the Crown suggested that the jury could be “invited” to ascend and descend the stairs if they chose. Assuming not all of the jury accepted that invitation, the result would be that some but not all of the jury would have the benefit (if it be a benefit) of looking down the staircase.

12. Further, and more importantly, I was not persuaded that looking down the staircase would provide the jury with a better understanding of the evidence and the inferences it may be invited to draw. On the contrary, undertaking that inspection (or experiment) may be misleading. The perspective from above may – for any member of the jury who suffers from vertigo or had any fear of heights or falling – provide an erroneous or exaggerated impression of the likelihood of injury, or the nature and extent of the likely injury, that would arise if a person fell or tumbled down the subject staircase. The view from the side and below would (and did) allow the jury to gauge the height and width of the staircase as well as see the material of which it is constructed. That is sufficient for the purpose of drawing any rational inference (assuming there is not to be any expert evidence on this subject).

13. The fact that the view from above provided an “entirely different impression” does not mean that it provided a more accurate impression or basis upon which to draw rational inferences.

14. For those reasons, I determined that the jury would not be requested or directed to ascend the staircase.

15. [The view was conducted on 7 September 2017 and the jury was most attentive and engaged throughout the inspection. The conduct of the view confirmed my decision that it was desirable to conduct the view and that what the jury saw of the staircase was sufficient for the purposes of the trial.]

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Endnote

Decision last updated: 27 October 2017