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 1Application 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. 2There 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. 3Secondly, 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. 4Thirdly, 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. 5Fourthly, 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. 6Fifthly, the count in the indictment is exceptionally serious. 7Sixthly, the issue in the trial is whether the accused was the shooter or, rather, another man who escaped the scene was the shooter. In order to judge whether the Crown has disproved the latter hypothesis beyond reasonable doubt, it could be said that the jury would be assisted by closely examining the layout of the scene and such details as, for example, the height of surrounding fences. 8Seventhly, I have been told from the Bar table by the learned Crown Prosecutor that the relevant scenes have not changed very much at all. 9Against those seven factors are the expense and general difficulty in getting the jury and the court as a whole 400 kilometres from Sydney to Tamworth. I had a particular concern as to whether or not the jury could be properly insulated from the public and from members of the court party if a commercial flight were to be used. 10Today I have been told by the Crown Prosecutor that the proposed arrangements are as follows: the twelve jurors and two sworn officers would travel to and from Tamworth by charter aircraft in the course of a single day. The cost of that charter would be in the vicinity of $10,000. Allowing for all other costs pertaining to the travel of the court party, I think it is appropriate to be on the safe side and to consider that that would be in the vicinity of $2,500. In other words, what is under discussion is a sum of $12,500. 11That sum is not to be dismissed as small. On the other hand, in the scheme of things, and with particular regard to the cost of the trial as a whole (including the cost of the trial being conducted in Sydney), and the cost of the operation of the criminal justice system as a whole, the sum of $12,500 is not enormous. 12The proposed use of a charter plane puts my fears at rest about the jury not being able to be properly insulated from members of the public. 13Mr Hoyle SC has indicated that the accused wishes to be at the view. He raised his own concern as to the logistics of the accused getting there in circumstances whereby the accused would not be, for example, exhausted. He indicated that in his experience the trip takes about five hours by car, and no doubt it would take more by prison van. The Crown Prosecutor mentioned today from the Bar table in response to the raising of that concern the fact that the accused is subject to a special escort when he arrives at and leaves court each day, and the Crown Prosecutor, or those who instruct him, have been informed that a special escort would be arranged for the accused either by way of plane or car. 14Speaking for myself, I am respectfully confident that the Department of Corrective Services would be able to ensure the presence of the accused in a reasonably practical way. 15Mr Hoyle SC also raised the question of whether or not the defence would be in a position to point out relevant features of sites in Tamworth. I respectfully agree that, of course, if we are to undertake a view to that town, it would be most desirable that, at the time, the wish of defence counsel as to the inspection of any sites that could be of assistance to his case should be accommodated. With regard to that, I would be open to suggestions as to how defence counsel before the view, or perhaps someone acting on his behalf, could inspect the scenes beforehand in order to ensure that a desire by defence counsel to inspect them and to have the jury inspect them is soundly based. 16Finally, Mr Hoyle SC queried whether the jury may misuse the view. In other words, despite the fact that what the jury perceives on any view does indeed become evidence, nevertheless the jury may, in his submission, place undue weight on what they have seen or otherwise perceived, and improperly discount the evidence given in the witness box by witnesses, and perhaps by way of real evidence that has become exhibits. I consider that there is some truth in that proposition, but I would have thought that careful direction, cross-examination, addresses and, if necessary, having the show-er at the view make clear how things such as layout, weather, and traffic are different from what pertained on 2 March 2012, would substantially ameliorate that problem. 17To my mind there are factors mitigating against the granting of a view. If the charge were any less serious than it is, I would not be open to conducting a view in Tamworth, 400 kilometres away from Sydney, that would involve the arrangements and expense and time taken that I have described. 18However, on reflection, I consider that in order to ensure that both parties are able to present evidence as clearly and as effectively as possible, a view should be conducted. I have come to that view even taking into account the considerations helpfully raised by defence counsel. 19I turn then to the matters that I am required to consider by way of s 53 of the Evidence Act. 20I am satisfied that the parties will be given a reasonable opportunity to be present, and of course funds should be available to permit Mr Hoyle SC's presence if the matter is legally aided. I would have thought it is highly desirable that both instructing solicitors be present as well. 21The accused of course may be present if he wishes to be. If so, it is clear that the Department of Corrective Services needs to make arrangements to have him there in good time and in good order. As the recent decision of the New South Wales Court of Criminal Appeal of Jamal v R [2012] NSWCCA 198 makes clear, the view is part of the trial and, if he wishes, the accused may most certainly be present. 22The jury will of course be there. That is the whole point of the exercise. 23As for the factors enumerated in s 53(3) of the Evidence Act, at the least the Crown Prosecutor and defence counsel will be there and, as I have said, I have been told that the accused wishes to be there as well, and if that remains the case he will be there. To be clear about it, the view will not be conducted in the absence of the accused if he wishes to be present. 24I am affirmatively satisfied that the view will assist the jury in resolving issues of fact and especially in understanding the evidence. 25To my mind there is little to suggest that the view would be prejudicial. The scene has changed, I am told, but the jury can receive evidence of that and make their own assessment. As I have said, the jury can also be directed not to let their own impressions gained during the view overwhelm the other evidence in the trial presented in the courtroom. It is not suggested that anything will be seen whilst the jury is on the view that reflects badly on the accused's character. Nor of course will any members of the public accompany the jury or the court party on the view. 26Nor to my mind will the view be misleading. As I have said, if there have been changes to scenes, they can be identified. 27Far from the view being confusing, I consider that it will be an aid to clarity of understanding. 28The view will indeed take time but, in all the circumstances, the time that will need to be taken for travel, arrangements, lunch and so forth will not, to my mind, be "an undue waste of time", to use the words of the section. 29Finally, completing my analysis of the mandatory considerations in s 53, as I have said, I am told that the various scenes have not changed very much at all since 2 March 2012. 30In all the circumstances, I consider that the application that a view be conducted should be granted. Because there is a possibility that the day of the view will start earlier and end later than normal, I propose to give the jury two or three possible dates, and ask them to decide collectively which date suits them best. 31My order then is that the application for a view in the form of an inspection of various sites in Tamworth is granted.