R v Diallo & Ors (No 8)

In the course of the Whack-A-Mole pre-trial hearing, YA suggested it would be appropriate and useful for the jury to be taken on a view of the scene of what was a series of stabbings that took place back in September 2021. [1] AD, Mr Karise and the Prosecutor were also in support of an inspection of the scene. [2] Neither AG nor Mr Diallo opposed a view being held but did not actively support it.

Since the matter was raised, it has been assumed by all concerned that an inspection of the scene – which spans about four blocks around William, Suffolk and Norfolk Streets and Richmond Road in Blacktown would take place. Various tentative arrangements have been made.

Having been reminded (very helpfully) by the Prosecutor of the need formally to make an order for the view, I have taken this to be an application pursuant to s 53(1) of the Evidence Act 1995 (NSW).

The position of each of the parties is that either they actively encourage me to make an order under s 53(1) or they take a neutral position. No party opposes the jury being taken to inspect the scene.

Having now heard the evidence of a number of crime scene officers and received into evidence a variety of photographs, charts, diagrams and maps, I am firmly of the view that an order or direction for an inspection or view of the scene is appropriate. That is provided there are no factors militating against such an order or direction.

The four young men who are currently standing trial are all in custody of some kind. There is nothing to suggest that this would create an insurmountable problem to their attendance on a view, as per s 53(2)(a). However, none of the accused men wish to attend and each will be represented at the view by experienced counsel and their solicitor. I am satisfied that there is a reasonable opportunity for the parties to be present, and both myself and the jury will be present: see s 53(2).

I am satisfied, for the purpose of s 53(3):

Accordingly, I am satisfied that an order under s 53(1) should be made.

After the formal order was made, there was some discussion as to the details and logistics. One issue that arose was whether the inspection should be video recorded. No party pressed for such a recording to be made. Mr Smith, who appears for Mr Karise and has some experience with views being recorded indicated that it was likely to add considerably to the length of the view. My experience is that the transcript taken by the court reporters provides an adequate record of the inspection.

I declined to make an order that the inspection be video recorded.

The day before the inspection was to be held, I became aware that some media representatives wished to attend upon the view.

To ensure the integrity of the inspection, the maintenance of the anonymity of the jury and the privacy of its deliberations, I foreshadowed certain orders and invited the journalists to make submissions if they sought any variation to the ground rules upon which their attendance was welcomed. [4] In an email to my Associate, the reporter in question indicated that she did not seek to be heard and did not seek any variation to the view.

Accordingly, the following additional orders were formalised on the morning the inspection took place: