The State of Western Australia v Sharp

[2021] WASC 258

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- SHARP [2021] WASC 258

CORAM:   MCGRATH J

HEARD:   14 JUNE 2021

DELIVERED          :   29 JULY 2021

FILE NO/S:   INS 70 of 2020

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Prosecution

AND

SIMON SHARP

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 granted

Category:    B

Representation:

Counsel:

Prosecution	:	Mr B Tooker
Accused	:	In person

Solicitors:

Prosecution	:	Director of Public Prosecutions (WA)
Accused	:	Not applicable

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

Whitsed v The Queen [2005] WASCA 208

MCGRATH J:

1. The accused has been charged on indictment which pleads that on 24 December 2019 he murdered Frederick John Murton.[1] The accused has pleaded not guilty and is proceeding to a trial before a judge and jury listed between 13 September and 1 October 2021. The State applies for orders that the jury undertake a view of the alleged crime scene, being a public park, namely Adachi Park Ascot, pursuant to s 109 of the Criminal Procedure Act 2004 (WA).[2]  

   [1] Indictment INS 70 of 2020 dated 8 October 2020.

   [2] Application by State of Western Australia dated 24 May 2021.

2. The State has not filed any submissions or affidavit in support.  I received oral submissions from the State and from the accused. 

3. The accused is not legally represented having made the decision to proceed to trial without counsel.[3] 

   [3] ts 47 - 48 (14/06/2021).

4. I am satisfied that this is an appropriate case to order a jury view.  Accordingly, the application for a jury view is granted for the following reasons.

The State case

1. The State case at trial is that the accused and the deceased were both homeless persons living in their respective vehicles at Adachi Park, Great Eastern Highway, Ascot.  Between 7.30 am and 7.50 am on 24 December 2019 the accused and the deceased were in the car park at Adachi Park.  The deceased walked from his vehicle to the drink fountain which is approximately 20 metres from the car park.  The accused approached the deceased and stabbed the deceased seven times with one wound inflicted to the deceased's back and six wounds inflicted to the deceased's chest region.  Consequently, the deceased died.  The accused immediately departed the area on foot walking in a westerly direction along Great Eastern Highway.

2. A forensic examination of the crime scene identified the DNA of the accused.  On 3 January 2020, the accused was arrested and charged with murder.

3. The State anticipates that the issue at trial will be identity.[4] 

   [4] ts 42 (14/06/2021).

Relevant legal principles

1. Section 109 of the Criminal Procedure Act 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.[5]

   [5] 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].

2. 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.

3. A viewing by the jury is not evidence.  In Scott v Numurkah Corporation[6] 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'.

   [6] Scott v Numurkah Corporation (1954) 91 CLR 300 at 313.

4. 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.

5. Clearly, the best evidence that will assist the jury in determining factual issues that may arise in respect of the relevant location is the electronic visual recording, photographs and diagrams.  There is, ordinarily, a close temporal proximity between the taking of the electronic visual recording and the 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.

6. In R v Alexander[7] 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.

   [7] R v Alexander [1979] VR 615 at 632.

7. 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. 

8. A jury view should not take place for the purpose of the mere colouration of the State case at trial. 

9. The court must also be mindful of the logistical challenges involved in transporting a jury with security and the accused person to attend 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.

10. 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.

State's submissions

1. The State submitted that 24 persons who were at Adachi Park at about the time of the alleged crime will give evidence at trial.  The witnesses were at various locations at the park or in the vicinity of the park.  The State will rely upon an electronic video recording of the alleged crime scene taken on 24 December 2019, as well as photographs taken on 24 December 2019 and aerial maps. 

2. Counsel for the State submitted that the photographic evidence is confined to the car park area and the location where the deceased was located.  The 24 witnesses were at different locations in the park and will describe what they observed at various times.  Counsel for the State submitted that 'to truly understand the oral evidence that these witnesses will give about where they went and when, one needs to go to the scene to understand that'.[8]  Counsel referred to the changing topography and the need to understand the location where each of the respective 24 witnesses made observations.

   [8] ts 40 (14/06/2021).

3. The State proposes that the evidence of the 24 witnesses be received by the jury prior to attending the viewing at Adachi Park. 

4. The accused's submission in respect of the application was limited.  The accused submitted that he was unsure whether the view would be necessary but that 'it might be a good idea'.[9]

   [9] ts 51 (14/06/2021).

Assessment of application

1. I have decided that a jury view should be ordered in this case.  I have reached that conclusion despite some reservations.  A significant factor that supports a jury view is that the State proposes to lead evidence from 24 witnesses who were in the vicinity of the park at the time of the alleged offence.  Given that there are a significant number of witnesses who were at various locations at Adachi Park, being a public park, a jury may be assisted by a view to properly understand that evidence at trial.

Conclusion

1. Accordingly, I exercise my discretion pursuant to s 109(1) of the Criminal Procedure Act for a jury view to be conducted.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

GP

Research Orderly to the Honourable Justice McGrath

29 JULY 2021