R v Martin

HIS HONOUR: Nicholas Martin (‘the accused’) is on trial for the murder of Shahn Baker (‘the deceased’), it being alleged that on 3 February 2022 he stabbed the deceased, intending to kill him or cause him grievous bodily harm.

The accused does not dispute that he stabbed the deceased with a knife and that the stab wound to the chest perforated the deceased’s heart causing his death, but argues that he acted in self-defence in acting as he did.

The stabbing occurred in a unit complex in Erina, New South Wales – specifically in the communal driveway of that complex.

The Crown, pursuant to s 53 of the Evidence Act 1995 (NSW), applies for a view of the alleged crime scene. The accused supports the application. In the event a view is ordered, the accused has elected not to attend.

The power to order a view is contained in s 53 of the Evidence Act, and the evidentiary effect in s 54. Section 53 provides:

There is no issue about the matters in ss 53(2)(a) and (b). I am satisfied about each of those matters. Section 53(3) provides non-exhaustive mandatory matters to be considered when determining whether to make an order that a view be held. I deal with each of them in what follows.

The parties will be present: s 53(3)(a). Although, as I have earlier noted, the accused has elected not to be present, he will be represented by counsel and his instructing solicitor. The Crown will also be represented.

I am satisfied that the view will assist in resolving issues of fact and in understanding the evidence: s 53(3)(b). It is sufficient to make reference to the following matters to illustrate why I consider that to be so. First, as the Crown submitted, a number of witnesses resided in the complex, each of which are anticipated to give evidence about what they saw and heard on the night of the alleged murder. What these witnesses say about what they saw and heard, and where they were positioned from the event at the time that they saw and heard them, will be of significance to a range of facts in issue. Secondly, there is evidence that both the accused and another witness told police that they first saw the deceased fall on the communal driveway in the process of taking rubbish out to the bins outside. The location of these bins are submitted to be, and I accept, of significance to the determination of facts in issue. More generally, I am satisfied that the capacity of the jury to comprehend the evidence of the witnesses as they explain what they saw and heard will be improved, potentially significantly so.

I do not consider that there is any danger that the view might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time and neither party suggested as much: s 53(3)(c).

The consideration in s 53(3)(d) relates only to a demonstration; it is thus not relevant to the present application.

There is no suggestion that the complex, or the driveway area in particular, has been altered in any way: s 53(3)(e).

Having considered these matters, I am satisfied that it is appropriate to conduct the view as sought. That is particularly where, as here, it is an application made by the Crown that is supported by the accused.

For completeness, it should be noted that I propose to follow, when conducting the view, the procedures set out in Ha v R (2014) 44 VR 319; [2014] VSCA 335 at [31]-[34] and adopted in R v Rogerson; R v McNamara (No 10) [2015] NSWSC 1067 at [16].

For the above reasons, I make the following orders: