R v Briggs (No 2) [2014] NSWSC 851

Supreme Court New South Wales

Medium Neutral Citation: R v Briggs (No 2) [2014] NSWSC 851 Hearing dates: 2 June 2014 Decision date: 03 June 2014 Jurisdiction: Common Law - Criminal Before: Button J Decision: The joint application for an inspection in the form of a view in Armidale is granted. Catchwords: CRIMINAL LAW - joint application for a view pursuant to s 53 of Evidence Act 1995 - consideration of statutory factors Legislation Cited: Evidence Act 1995 (NSW), s 53 Cases Cited: R v Jamal [2012] NSWCCA 198 Category: Interlocutory applications Parties: Regina Cecil Paul Briggs Representation: Counsel: Mr J McLennan (Crown) Mr C Bruce SC (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid NSW (Accused) File Number(s): 2012/399846

Judgment 1A joint application has been made by the parties for a view to be conducted in the course of this trial for murder. Having heard brief submissions, I have come to consider that it would be appropriate to approve such a course. 2The background is that the accused is facing a single count of murder said to have been committed on 26 December 2012. The Crown case is that, on Christmas Eve of that year, the accused attended at the home of the deceased and inflicted a severe beating upon him that included the use of a baseball bat. The deceased died two days later. Two witnesses, a Mr Costin and a Mr Ryan, were outside and heard and saw something of what was occurring. In their statements, they have provided a description of the general layout of the streetscape. They have also provided evidence identifying the voice of the accused as being the same voice as was heard to say a number of potentially inculpatory things from within the apartment block. 3Accordingly, the facts in issue are whether the accused voluntarily did an act that caused the death of the deceased with one of the two requisite intentions for murder. I have been informed by the parties that it is not expected that there will be a dispute about whether the accused voluntarily did an act that caused the death of the deceased. It seems that the real issues in the trial will be whether the Crown has proven one of the two necessary mental elements of murder, and whether the Crown has disproven self-defence. 4In support of the application, defence counsel submitted that an appreciation of the size of the apartment is important to his case. That is because, he explained, the apartment is really quite small, and the various photographs and plans that will be tendered in the Crown case do not permit one fully to appreciate that fact. He explained that part of his case will be the proposition that some of the injuries seen to the body of the deceased could have been caused by the deceased coming into contact with structures and items within that confined space, rather than by the direct infliction of violence by the accused. 5The Crown Prosecutor did not gainsay the validity of that submission. Furthermore, he submitted that it is important for the jury to understand the layout of the streetscape in general. As well as that, if there is to be an attack on the voice identification evidence, it will be important for the jury to have an appreciation of distances and any obstacles to hearing. 6Furthermore, the Crown Prosecutor informed me that, other than furniture, the scene has changed little. 7Finally, he expressed his confidence that the jury would be able to be comfortably insulated by way of the work of the police and the sheriff's officers. 8Turning to analyse s 53 of the Evidence Act 1995 (NSW), I propose to review briefly the subsections in the order in which they appear in the statute. 9As for s 53(1), an application has been made for an inspection by both parties. Each party accepted, of course, that it remains a matter for my discretion. 10As for s 53(2)(a), both the Crown and the accused will be given a reasonable opportunity to be present. To be clear, the accused is perfectly entitled to be present and, if he wishes to be present and yet is absent, the view will not take place: see R v Jamal [2012] NSWCCA 198. I am told by his counsel that he does not wish to be present. 11As for s 53(2)(b), of course the jury and I will be present at the view. 12I have taken the following matters into account. 13As for s 53(3)(a), the Crown Prosecutor and defence counsel and their solicitors will be present. The accused will not be, on current indications. There are sound reasons why an accused person who is in custody may choose not to be present, and to leave the conduct of the view to his solicitor and counsel. His absence by choice, in those circumstances, does not lead me to consider that the view should not be granted. 14As for s 53(3)(b), in my opinion the view will assist the jury to resolve issues of fact and to understand the evidence. I refer to the three matters raised by the parties above. Quite apart from those matters, in my experience as counsel and as a judge, attendance at an alleged crime scene very much assists one to comprehend the plethora of evidence about that scene that I expect will be led in the trial, and to appreciate the scene as a whole. 15As for s 53(3)(c), neither party submitted that the view could be unfairly prejudicial, misleading or confusing, or could cause or result in undue waste of time. 16As for the latter, I am told that the proposed location is a drive of five minutes from the courthouse. 17As for the view being misleading, I am told that the scene is little changed. I do not doubt that the parties, if necessary, will formally lead evidence of, and explain in address, any difference between the scene as it is today and as it was in December 2012. (I have taken that into account with regard to s 53(3)(e) as well.) 18I see no basis for fear of unfair prejudice. 19In short, in light of the foreshadowed issues in the trial, including the elements of murder that will truly be in dispute, I consider that the conduct of a view will soundly assist the jury in discharging its function as the tribunal of fact. 20It is for those reasons that I accede to the joint application of the parties. 21My order then is that the joint application for an inspection in the form of a view in Armidale is granted. 22The parties may liaise with my Associate informally with regard to logistical aspects of the preparation for the conduct of the view.