R v Hutchison, Wilkinson & Greentree (No 2) [2018] NSWSC 1757

Supreme Court New South Wales

Medium Neutral Citation: R v Hutchison, Wilkinson & Greentree (No 2) [2018] NSWSC 1757 Hearing dates: 8, 10 August 2018 Date of orders: 08 October 2018 Decision date: 16 November 2018 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: Order an inspection of certain areas around the Wisemans Ferry vicinity. Catchwords: EVIDENCE – inspection of scene of events giving rise to charge of accessory after the fact – joint application – relevant considerations – no question of principle Legislation Cited: Evidence Act 1995 (NSW) ss 53 and 54 Category: Procedural and other rulings Parties: Regina Raquel Hutchison Paul Wilkinson Daniel Greentree Representation: Counsel: M Cunneen SC (Crown) B Rigg SC & S Beckett (Hutchison) M Ainsworth (Wilkinson) I Todd (Greentree)

Solicitors: Director of Public Prosecutions NSW (Crown) Blair Criminal Lawyers (Hutchison) McGirr Lawyers (Wilkinson) Tully & Chiper Lawyers (Greentree) File Number(s): 2014/00308895 (Hutchison)2014/00308929 (Wilkinson)2014/00319883 (Greentree) Publication restriction: An interim non-publication order is made over the deceased's surname which applies to both the deceased and some of the witnesses.

Ex tempore Judgment (revised) 1. HIS HONOUR: The accused, Daniel Greentree, foreshadowed and made an application pursuant to s 53 of the Evidence Act 1995 (NSW), being an application that there be a view, or to use the parlance of the Evidence Act, an inspection of certain areas around the Wisemans Ferry vicinity. A number of documents and statements were tendered, and counsel for Mr Greentree provided written submissions in relation to that issue. 2. In essence there is a factual dispute between the accused, Mr Greentree, and witnesses to be called by the Crown, specifically one, and perhaps two child witnesses as to: what was done, what was seen, and what was able to be seen at relevant times after, on the Crown case, the co-accused, Ms Hutchison and Mr Wilkinson, murdered Brett Walker (a pseudonym). 3. The material, so tendered, indicated that it would be important for the tribunal of fact, which as it turns out is me, to get a better understanding of the layout of the area where the people were making their observations, and I was encouraged to that view by counsel for each of the parties. 4. The matter was adjourned until today so that all of the evidence could be formally tendered, and in the meantime senior counsel and counsel for Ms Hutchison made a similar application, or really by agreement between all of the parties, the Crown made some modifications to the sites to be visited, the things to be seen and observed, and this morning a number of additional statements have been tendered. 5. In addition to that an affidavit of Ms Hutchison's solicitor, Mr Blair, has been read and indeed marked as Exhibit VD 21. 6. I am satisfied, based on all of the evidence, that attendance on a view of the scene, and an inspection of the various sites agreed upon by the parties will assist in resolving issues of fact, and certainly that it will assist me in understanding the evidence. That is a relevant criterion under s 53(3)(b). 7. Mr Blair's affidavit sets out the extent to which things have changed, or materially altered, to adopt the terminology of the Evidence Act in s 53(3)(e), and it is I think the case that there have been some changes, but that those changes are not significant in an overall sense such that it could not be thought that attendance on a view, and making an inspection of the sites agreed between the parties, might be misleading or confusing. It seems that any relevant changes will be able to be highlighted, either on the view, or in the evidence thereafter, and certainly already in the evidence of Mr Blair in his affidavit. 8. That being so, I am satisfied it is appropriate, taking into account the relevant considerations under s 53, noting that the view will become evidence under s 54, that it is appropriate that an inspection of the scene be undertaken. 9. To a very large degree I am guided by the position taken by the parties in relation to exactly what is to be seen, and certainly Mr Greentree and Ms Hutchison, with the concurrence of the learned Crown Prosecutor and Mr Ainsworth, who appears for the accused Mr Wilkinson, have agreed upon a schedule or timetable of places to visit, being; 1. Meet at the carpark between Wisemans Ferry pub and Wisemans Ferry grocery store, 2. The grocery store, 3. Wisemans Ferry Bowling Club, 4. Ferry transport at Wisemans Ferry, 5. Four signs in Dharug National Park, 6. Oyster Shell Road, 7. The turn off to Mangrove Mountain Road, 8. The location where the deceased's body was found. 1. So I make an order under s 53 that an inspection be held. At this stage, subject to one question I have for counsel, it would seem that the inspection will take place next Tuesday 14 August 2018.