The State of Western Australia v Glasfurd [No 5]
[2023] WASC 25
•9 FEBRUARY 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- GLASFURD [No 5] [2023] WASC 25
CORAM: MCGRATH J
HEARD: 3 FEBRUARY 2023
DELIVERED : 9 FEBRUARY 2023
FILE NO/S: INS 3 of 2022
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
JAMIE ERIC GLASFURD
Accused
Catchwords:
Criminal law - Practice and procedure - Application for jury view at crime scene
Legislation:
Criminal Procedure Act 2004 (WA), s 109
Result:
Application for jury view dismissed
Category: B
Representation:
Counsel:
| Prosecution | : | Mr B E F Tooker |
| Accused | : | Mr S D Freitag SC |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused | : | Smiddy-Brown Legal |
Case(s) referred to in decision(s):
Agapis v The State of Western Australia [2012] WASCA 132
R v Alexander [1979] VR 615
Scott v Numurkah Corporation (1954) 91 CLR 300
The State of Western Australia v Sharp [2021] WASC 258
Whitsed v The Queen [2005] WASCA 208
MCGRATH J:
The accused, Mr Glasfurd, is charged with one count of manslaughter contrary to s 280 of the Criminal Code (WA), one count of dangerous driving of a motor vehicle that was involved in an incident occasioning grievous bodily harm to another in circumstances of aggravation contrary to s 59(1)(b) of the Road Traffic Act 1974 (WA) and four counts of dangerous driving of a motor vehicle that was involved in an incident occasioning bodily harm to another in circumstances of aggravation contrary to s 59A(1)(b) of the Road Traffic Act.
Mr Glasfurd has pleaded not guilty to the six counts and will appear for his trial in February 2023.
By application dated 18 January 2023, the State applies for an order that the jury conduct a view of the scene of the vehicle incident, namely the streetscape and roadway in Pier street, Perth. The accused opposes the application for a jury view of the incident scene.
I am not satisfied that this is an appropriate case to order a jury view. Accordingly, the application for a jury view is not granted and therefore, the application is dismissed.
The State's case
The State's case is summarised in the amended statement of material facts in the following terms:
On Friday 20 August 2021 the accused, Jamie Eric Glasfurd, drove into the city and parked at the City of Perth multi-story car park on Pier Street. He arrived at about 12:30pm and parked his vehicle, a supercharged V8 Range Rover SUV registration number 1FAX947, on Level 7. He spent the afternoon in the city.
At 6:17pm that evening the accused returned to the multi-story car park. He had a partly filled beer bottle in his hand. It took him some time to work out how to pay for his ticket using the vending machines. He appeared unsteady on his feet. Eventually he paid for his ticket and caught the lift. He went one level too far (Level 8) and had to walk down to Level 7. He got into his vehicle at 6:25pm. About a minute later he reversed out and started to drive down to the ground level.
As he drove from level to level, his car would slow down for the corners and then rapidly accelerate and lurch forward in the straight sections of the car park. This pattern was repeated for most of the journey down to the ground level.
At 6:30pm the accused exited the multi-story car park in his Range Rover SUV. Initially he turned left and travelled north on Pier Street, but only for a short distance. He then mounted the raised median strip and conducted an illegal u-turn. When he got to the other side of Pier Street he straitened up his vehicle such that he was now facing north. The accused then accelerated heavily. His vehicle lurched forward and raced up the short hill towards the intersection of Pier Street and Murray Street, which is controlled by traffic lights.
The accused crossed through the intersection, narrowly missing a vehicle travelling west in the intersection, and mounted the footpath on the east side of Pier Street. After hitting the raised kerb on the south‑east corner of the intersection his vehicle ploughed into the rear of a Toyota Corolla, registration number 1DFI833, which was parked outside "My Place" (a pub). The Toyota Corolla then crashed heavily into a crowd of people who were sitting and standing outside "My Place".
…
At the time of the collision with the Toyota Corolla it is estimated that the accused's Range Rover was travelling at between 90-96 km/h. The speed limit along this section of Pier Street is 40 km/h.
The accused was arrested at the scene by police and conveyed to Royal Perth Hospital to be treated for the serious injuries he received in the crash. A blood sample was obtained from the accused under the provisions of the Road Traffic Act 1974. Upon analysis it was determined that the accused had 0.05mg/L of methylamphetamine, 0.01mg/L of amphetamine and 0.004 grams of alcohol per 100ml of blood in his system.
Counsel for the State submitted that the 'the battle lines in this trial are clearly drawn' summarising the respective cases in the following terms.[1]
The State's case is that the accused was intoxicated and was driving recklessly on the day in question. Our case is that he deliberately drove up Pier Street towards Murray Street at high speed; that he had to steer left and then right to avoid a vehicle in the intersection of Pier Street and Murray Street; and that he lost control and was not able to successfully manoeuvre his vehicle into the single lane of Pier Street beyond Murray Street. His vehicle then collided with the Toyota Corolla, which ploughed into patrons on the sidewalk. In short, it is our case that he drove at excessive speed and that this was the primary cause of the crash.
The defence argument will be that the accused did not deliberately put his foot down on the accelerator, ie that the depression of the accelerator was not a 'willed act' and was not a grossly negligent act.
[1] State's Written Submissions filed 2 February 2023, [3] - [5].
Relevant legal principles
Section 109 of the Criminal Procedure Act 2004 (WA) provides that the judge may at any time order the jury to view a place or thing and may make orders necessary for the view to take place. Whether a view of an alleged crime scene is required is a matter of discretion for the trial judge.[2]
[2] Whitsed v The Queen [2005] WASCA 208, [119] (Miller AJA); R v Alexander [1979] VR 615; Agapis v The State of Western Australia [2012] WASCA 132, [73] ‑ [74].
The purpose of a jury view is to allow the jury to observe a scene which cannot be adequately represented in court and thereby serves to assist the jury in understanding the evidence led at trial and to facilitate deliberation and adjudication.
In the State of Western Australia v Sharp,[3] I outlined the relevant principles concerning a view of a crime scene by a jury. A viewing by the jury is not evidence. In Scott v Numurkah Corporation,[4] the High Court stated that 'a view is for the purpose of enabling the tribunal to understand the questions that are being raised, to follow the evidence and to apply it, but not to put the result of the view in place of the evidence'.
[3] The State of Western Australia v Sharp [2021] WASC 258, [8] - [17].
[4] Scott v Numurkah Corporation (1954) 91 CLR 300 at 313.
A jury view of a crime scene will be most uncommon. In the vast majority of trials the issues that a jury must resolve will be adequately decided on the evidence led at trial. That is because technology now permits electronic visual recording of the crime scene that will provide the jury with the evidence to adequately show the relevant location and surrounding areas. Further, aerial maps, surveyor's reports and photographs may provide additional evidence that will assist the jury's understanding.
Clearly, the best evidence that will assist the jury in determining factual issues that may arise in respect of the relevant location are electronic visual recordings, photographs and diagrams. There is, ordinarily, a close temporal proximity between the taking of the electronic visual recordings and photographs and the time at which it is alleged the offending occurred. To show the jury the crime scene years later may, on occasions, be positively misleading for the reason that the surrounding area of the crime scene has changed.
In R v Alexander,[5] the Victorian Court of Appeal made the following observations concerning jury views at crime scenes:
Where conditions are static, and the evidence concerning those conditions is either complicated or conflicting, a view may profitably be conducted and utilized (a) to enable the tribunal of fact better to understand the evidence given, (b) to enable the tribunal of fact better to adjudicate upon the worth of the evidence given. It is the evidence given in Court which is to be evaluated.
But where conditions affecting the matters in issue are infinitely variable, or, as in this case, the reliability of observation may depend upon the visual acuity of the observer, the power and amount of light from time to time, the growth of plants, bushes or shrubs, the size and shape of the fences, the state of the weather, the permanence of roads, the phase of the moon, and the depth of cloud (without attempting to exhaust the variables involved), it would be foolhardy, in the absence of any evidence at all that conditions are the same, or anything like the same, to order a view at any particular time.
[5] R v Alexander [1979] VR 615 at 632.
If, prior to trial, the parties consider that there is some conjecture concerning what may be observed in the electronic recording then the appropriate course is for the State to obtain further electronic recordings or photographs, being mindful that the area may have changed since the alleged offending.
A jury view should not take place for the purpose of the mere colouration of the State case at trial.
The court must also be mindful of the logistical challenges involved in transporting a jury with security, and the accused person, to the scene with a police escort. Further, there is often the necessity for police to secure and clear the public space to permit a public viewing by the jury.
Ultimately, though, the jury view must occur if justice requires it. That is, the view is necessary to assist the jury to properly understand the evidence and to deliberate and adjudicate.
The State's submissions
The State submitted that the view will be conducted at the location where the vehicle commenced its acceleration, being in close proximity to the entrance to the Pier Street carpark, to the point where it left the road, being just after the intersection of Pier Street and Murray Street. This is a distance of approximately 100 metres. The State submits that the jury view will not require the jury walking across the intersection of Murray Street and Pier Street and along the pavement of Pier Street where diners will be seated.
The State contends that the view will allow the jury to 'truly appreciate' the distance and gradient from where the vehicle commenced its acceleration to the point where it left the road. The jury will need to understand the distance and gradient, in combination with the other road environment factors. The State contends that main benefit of the view will allow the jury to appreciate the uphill gradient from where the vehicle commenced its acceleration, to the intersection of Pier Street and Murray Street.
At trial the State will rely upon video recordings of the scene undertaken by police officers, photographs of the scene, a surveyed plan of the scene and CCTV footage recording the accused's vehicle travelling along Pier Street immediately prior to the vehicle incident. Two drive through video recordings of the scene were made by Main Roads. The first was conducted during the day on 25 August 2021. The second was conducted at night time on 12 January 2023. The drive through videos commence at the roadway next to the Pier Street carpark and travel along Pier Street towards the point where the vehicle left the roadway. Further, the State will rely upon oral testimony of various officers who will address the evidentiary material at trial.
The State contends that there are limitations with the evidence. First, that the surveyed plan of the scene was limited to Pier Street, south of Murray Street. Accordingly, the State submits that the surveyed plan does not include the roadway from the point where the vehicle commenced accelerating to the intersection of Pier Street and Murray Street. Further, the vast majority of the photographs of the scene were taken south of the Pier Street and Murray Street intersection.
The State submits that given that the trial is being conducted in the District Court Building, the scene of the vehicle incident is very close to the court house. Therefore, jurors may deliberately or inadvertently visit the scene. Accordingly, it is preferable that a properly controlled jury view be conducted with directions.
Defence submissions
The defence opposes the jury view. Counsel submitted that the evidence proposed to be led by the State adequately represents the vehicle incident scene and that therefore, a jury view is not necessary. I have outlined that material when considering the State submissions. The defence accepted that the surveyed plan of the scene is two dimensional and is not a form of visual information that all jurors would be familiar with or use frequently. However, the video and photographs are not two dimensional. The electronic evidentiary material is sufficient to show the jury the roadway and streetscape at the relevant time. A jury view is not necessary for the jury to understand the electronic evidentiary material. Moreover, a real risk arises for the reason that the streetscape and roadway has changed since the vehicle incident.
The defence submitted that the jury would be observing a different streetscape. The view would be conducted during the day whilst the incident occurred at 6.30 pm. The jury would be viewing a street with more diners than when the alleged offences occurred, which would be misleading. Further, there has been physical changes to the streetscape. Primarily, the addition of fixed screens at the front of the My Place bar and restaurant has changed the venue where the persons were sitting. The screens serve to provide protection to the alfresco diners from the roadway. Further, there are alfresco eating areas on Pier Street which were not present at the time of the vehicle incident.
In addition, at the corner of Pier Street and Murray Street the roadway has changed with stop white lines now marked on the roadway and further, white pedestrian line markings. The markings have been drawn on the roadway since the vehicle incident.
The defence submits that the close proximity of the court house to Pier Street and the incident scene, and the likelihood that the jury may be familiar with the scene or may inadvertently view the scene during the trial, may be adequately addressed by direction. Given the changes to the streetscape and roadway, and the very limited benefit of the proposed view given the quality of the electronic evidentiary material, a jury view would involve risk with limited benefit.
Assessment of application
I have decided that a jury view should not be ordered in this case. I have reached that determination for the following reasons.
First, the purpose of the proposed view is to assist the jury to understand the distance and the gradient of the road between the Pier Street car par entrance and the incident scene. I have considered the evidentiary material that is being relied upon by the State at trial. I am of the opinion that the jury will have an understanding of the length and gradient of the roadway given the electronic evidentiary material. In particular, the drive through recordings undertaken by Main Roads. Further, the State will rely upon oral testimony of various officers who will address the evidentiary material at trial. The proposed jury view is of some but limited benefit in assisting the jury to further understand the distance and gradient of the roadway from the carpark in Pier Street to the intersection with Murray Street.
Second, both the State and defence accept that the roadway and streetscape between the entrance of the car park in Pier Street and the incident scene has changed. At the time of the vehicle incident, the redevelopment of the roadways and streetscapes in the Pier Street area had been completed with new tarmac and a medium strip. However, the white stop lines and pedestrian lines on the roadway at the corner of Pier Street and Murray Street had not yet been redrawn. The white stop lines and pedestrian lines have since been drawn on the roadway at the intersection. There has been further change to the My Place bar and restaurant, with screens having now been placed along the pavement between the alfresco diners and the roadway. There are also further alfresco areas in the streetscape.
Third, the State proposes to conduct the inspection of the incident scene roadway and streetscape, commencing at the entrance of the car park in Pier Street to the intersection of Pier Street and Murray Street. However, invariably the jury will, at the intersection of the two streets, observe the location of the vehicle incident scene. It is artificial that the jury attend the intersection for the purpose of understanding the gradient and then ignore the streetscape along Pier Street.
Fourth, I will direct the jury not to conduct their own view of the area. The jury will be directed that there is evidentiary material that will show the streetscape and the roadway as it was at the relevant time. I do not accept that a remedy to the possibility that a jury member may inadvertently walk through the area is to undertake a jury view. That will involve undertaking a jury view that is unnecessary to assist the jury in understanding the evidentiary material with the risk that the jury will be observing a roadway and streetscape that has changed.
Conclusion
Accordingly, I decline to exercise my discretion for a jury view to be conducted pursuant to s 109(1) of the Criminal Procedure Act. The application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Judicial Support Officer
9 FEBRUARY 2023
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