Supreme Court Grants Accused Person’s Request to View Murder Location in Prison

The Supreme Court of New South Wales granted an application for a view of the location where a murder allegedly took place in prison. The court considered the importance of ensuring the defence case could be presented fairly to the jury and concluded that a view would provide some utility not fully captured by video evidence.

Supreme Court New South Wales

Medium Neutral Citation: R v [NAME] [2020] NSWSC 536 Hearing dates: 20 November 2019 Date of orders: 20 November 2019 Decision date: 20 November 2019 Jurisdiction: Common Law Before: Rothman J Decision: Application for view granted. Catchwords: CRIME – accused application for view of alleged murder location – murder in prison – availability of video evidence – view of some utility – application granted Category: Procedural and other rulings Parties: Regina (Crown) [NAME] (Accused) Representation: Counsel: [redacted] [NAME] (Accused)

Solicitors: [redacted] [NAME] (Accused) File Number(s): 2017/242644 Publication restriction: Not to be published until the conclusion of the trial

EX TEMPORE Judgment 1. HIS HONOUR: Before the Court is an application for a view of the [NAME] or those parts of it that are relevant to these proceedings. The application is made on behalf of the accused for the purpose of allowing the jury to understand what the accused says is some, at least, of the difficulties associated with evidence that is to be adduced from some of the prisoner witnesses and their view of the relevant areas.

2. I have expressed, during the course of the relatively informal discussion between counsel and myself relating to this issue, that I was not keen on the idea of over 20 people marching through the [NAME], if it were avoidable.

3. I also expressed the view, to which I adhere, that it is important for the trial to be conducted in a manner which ensures that the defence case can be put fairly and appropriately to the jury. I have been shown video recordings of the area, and I frankly started with the proposition that there was little that could not be shown on a video that you would gain from an inspection.

4. The inspection, if it were to occur, will occur in a prison and the prisoners in the particular area would be in lockdown. The prison cell in which the incident is said to have occurred would be empty as would the relevant yard area from which at least one of the witnesses or proposed witnesses is said to have viewed some relevant conduct.

5. It is not optimal for the jury to be walking through a prison system where prisoners are present, even if they are in lockdown. That affects the administration of justice, an issue which is uppermost in my mind in dealing with the application that is before me. I have seen the video, and I am most grateful to the Crown for providing it, and showing it, during the course of this preliminary hearing so that I can ascertain whether any use can be made from an inspection or view.

6. The difficulty with camera work is that cameras can be more precise and show a clearer view than a person might have had. There are some aspects of the camera work and the video that I consider to be extremely helpful and probably would suffice.

7. However, there are some other areas to be seen at the view and understandings to be gleaned that, frankly, I do not think are covered in the video. In those circumstances, it seems to me in order for the trial to be truly fair I need to order that the view take place.

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 May 2020