Adducing Evidence - Real
Adducing of other evidence not affected s52
This Act (other than this Part) does not affect the operation of any Australian law or rule of practice so far as it permits evidence to be adduced in a way other than by witnesses giving evidence or documents being tendered in evidence.
Views
s53
(1) A judge may, on application, order that a demonstration, experiment or inspection be held.
(There must be an application for an experiment: 2 applications are required for an out of court experiment. One for the out of court locus, and the other for leave to conduct and experiment)
(2) A judge is not to make an order unless he or she is satisfied that:
(a) the parties will be given a reasonable opportunity to be present; and
(b) the judge and, if there is a jury, the jury will be present.
(3) Without limiting the matters that the judge may take into account the judge is to take into account the following:
(a) whether the parties will be present;
(b) whether the demonstration, experiment or inspection will, in the court's opinion, assist the court in resolving issues of fact or understanding the evidence;
(c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time;
(d) in the case of a demonstration - the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated;
(e) in the case of an inspection - the extent to which the place or thing to be inspected has been materially altered.
(4) The court (including, if there is a jury, the jury) is not to conduct an experiment in the course of its deliberations.
(5) This section does not apply in relation to the inspection of an exhibit by the court or, if there is a jury, by the jury.
View to be evidence s54
The court (including the jury if there is a jury) may draw any reasonable inference from what it sees, hears or otherwise during a demonstration, experiment or inspection.
R v Milat NSWSC 1996 unreported (Accused did not attend view but still ok. Significance of s53.)
Facts: An application was made to view the Belangalo state forest where the bodies were found Defendant did not object.
Held: Court considered various items in s53 of EA and ordered view to take place.
• s53 requires parties to have reasonable opportunity to be present which was satisfied despite Milat declaring he would not attend.
• As long as accused is given reasonable opportunity to be present at view, he need not be present Milat did not want to attend (presence of the accused is not required under s53(3)(a)).
• Physical changes also occurred to the forest (trails had been worn away by the use of vehicles, and other trails had become overgrown with vegetation), but his honour ruled that they would not affect the probative value of the proposed inspection (see s53(3)(e)).
R v Neilan (1991) (Jury taking a view; use of experiments)
Facts: Husband accused of killing his wife said he was attacked by 3 men who he saw through the window of his house when no exterior light was on.
• Police sought to establish using experiments that he couldn’t have seen this because of the lack of light - evidence of the tests were given at the trial.
• An attempt was made to have this evidence excluded due to inconsistencies resulting from moonlight, time of day etc.
• Also on appeal was the conduct of a view the jury had been left alone in the accused’s house while counsel, keepers and the judge went outside.
Held: Appeal dismissed
Re the experiment
• The court should ask ‘were the tests probative?’ evidence of an out of court test is admissible if it was made under conditions and circumstances similar to those prevailing at the time in issue (need not be identical, just similar.)
• Minor variations go to weight of the evidence, rather than its admissibility but if conditions are different the court will not allow the evidence in.
• In this case the tests were wrongly admitted but their unsatisfactory level of similarity was explained to the jury so there was no miscarriage of justice.
Re the view
• The purpose of the view is to understand the questions being raised and to apply and follow the evidence not to put the observations of the view in place of the evidence.
• It would have been a problem if someone else had been in the house with the jury when the judge left it (eg a witness) - but it was not a miscarriage of justice merely because the judge couldn’t see the jury at all times.
Kozul v The Queen (1981) (Simple experimentation only no comprehensive experimentation. Precursor to 53(4))
Facts: The defence claimed that the discharge of a gun occurred accidentally when Kozul's hand in which he was holding the gun was struck during a struggle.
• The trial judge invited the jury to examine the alleged murder weapon in the jury room and experiment with striking their hand whilst gripping the gun this was clearly a direction to recreate the incident as described by the defence.
Held: Gibbs CJ (with Mason and Wilson JJ) held that the invitation was improper.
• Whilst it was permissible to ‘engage in a limited amount of simple experimentation' (such as pulling the trigger) it must be limited to doing no more `than using their own senses to assess the weight and value of the evidence'.
• When the experiments conducted by the jury go beyond a mere examination and testing of the evidence, and become a means of supplying new evidence, they become impermissible.
• Stephen J (with whom Murphy J agreed) delivered a strong dissent His Honour felt that the jury should be given a freer rein in their deliberations he stated that juries must be free to use in their deliberations the qualities of judgment and of common sense which they bring into the jury room'.