R v Rogerson; R v McNamara (No 10)

Roger Caleb Rogerson and Glen Patrick McNamara have each pleaded not guilty to an indictment alleging:

By notice of motion dated 31 July 2015 the Crown has made application that in the course of the trial of the two accused a view be held, pursuant to s. 53 of the Evidence Act 1995 (NSW) (“the Act”), of various locations where, on the Crown case, relevant events took place. The notice of motion is supported by an affidavit Karl Robert Prince, a solicitor employed by the NSW Director of Public Prosecutions. Mr Prince is instructing the Crown Prosecutor in the trial.

In order to place the application in its proper context it is necessary to set out the relevance, to the Crown case, of those locations which it is proposed will be viewed. In this regard, the Crown case statement filed in the proceedings details the following events on 20 May 2014 which was the day on which it is alleged that the deceased was murdered:

It is proposed that Det. Phillips, the officer in charge of the investigation, be present at the view and that he identify to the jury the following specific locations within the nominated areas:

The proposed attendance by Det Phillips would necessitate the presence of a Court Reporter to record (inter alia) what is said by him in pointing out the various locations to the jury.

The present application is supported by counsel for both accused. Neither Counsel has made application to extend the locations beyond those nominated by the Crown.

Section 53 of the Act is in the following terms:

Before making an order that a view take place, I must firstly be satisfied of each of the matters set out in s. 53(2). In that respect, I am satisfied that each of the accused will be represented by counsel at the view. I will also be present, along with the jury.

In determining whether to make an order that a view be held I am also required to take into account (to the extent that they apply to a view, as opposed to a demonstration or experiment) the matters in s. 53(3)(c) to (e) inclusive.

Firstly, in terms of s. 53(3)(a), the accused will not be present themselves but will be represented by Counsel.

Secondly, in terms of s. 53(3)(b), the significance of the areas which will be viewed will be evident from those passages of the Crown case statement set out at [3] above. I am satisfied that a view of those areas will assist the jury in understanding the evidence of the events which are said to have taken place on the day of the deceased’s death.

Thirdly, in terms of s. 53(3)(c), no submission has been made to me that a view might operate in a way which is unfairly prejudicial to either of the accused, nor has it been suggested that a view might be misleading, confusing or the cause of an undue waste of time.

Fourthly, s. 53(3)(d) is expressed to apply only to a demonstration and is therefore not relevant.

Fifthly, in terms of s. 53(3)(e), although the affidavit of Mr Prince discloses that storage shed 803 is now empty and no longer contains any of the items of furniture that were inside it at the time of relevant events (see in particular the Crown case statement at [36]) it has not been suggested to me that this constitutes a material alteration which would render a view of no assistance or which, worse still, might render a view unfairly prejudicial to one or both of the accused.

In light of these matters, I am satisfied that it is appropriate to conduct the view.

In the circumstances, and for the purposes of the conduct of the view, I propose to adopt the guidelines set out by Priest JA (with whom Maxwell P and Weinberg JA agreed) in Ha v R [2014] VSCA 335 at [31]-[34]:

I note that the parties have previously been referred to this decision and that the Crown has submitted the guidelines set out by Priest JA ought be followed. No contrary submission has been advanced by counsel for either of the accused.

For the forgoing reasons, I order that during the course of the trial, at a time and date agreed upon by the parties, an inspection be conducted pursuant to s. 53 of the Act of those locations set out in Annexure A to the affidavit of Karl Robert Prince affirmed on 31 July 2015.