Ground 3 - The View
26In the course of the hearing of pre-trial issues, the Crown made an application for a view, that is, an inspection under s 53 of the Evidence Act 1995, of the scene of the shooting. This was opposed by defence counsel on the basis, firstly, that it would be of no real benefit to the jury and, secondly, that at such a view the appellant would be shackled and subject to high levels of security. The appellant was in custody at the time and, for reasons which need not concern us, was classified as an "extreme high risk" inmate. Nevertheless, defence counsel told her Honour that, if there was to be a view, the appellant wished to be there and pointed out that he was entitled to be present. The Crown prosecutor said that the appellant would be able to attend and would be held inside a car outside the police station. The police station itself was cramped and, while the jury was inside, the trial judge and the lawyers would remain outside. He confirmed that nothing would be said to the jury during the view.
27Evidence was subsequently led by a senior police officer that if the appellant attended the view, he would be held within a cage in a secure Corrective Services vehicle. That vehicle would have tinted windows, but the appellant would be visible from outside on a closer viewing. He would be wearing orange overalls and a restraining belt, to which would be attached shackles to his hands and feet. In these circumstances, the trial judge decided that the view should take place in his absence and that there would be no need for him to be there. She observed that he would be represented by his counsel, and that the jury would simply make observations without anything being said by anyone.
28Trial counsel for the appellant initially responded by saying "I'm not going to cavil with that." However, he put on record that he had "very firm instructions" from the appellant that he wanted to attend. Her Honour repeated her view that there was no necessity for him to be there because he would be represented by counsel. She added that she took into account the question of whether the parties would be present, as required by s 53(3) of the Evidence Act, but affirmed her decision that there was "no necessity for the accused to be present because he will be represented by counsel." Accordingly, during the trial the view took place in the appellant's absence. Ground 3 complains that her Honour fell into error in ordering the view.
29Relevantly, s 53 of the Evidence Act provides:
(1) A judge may, on application, order that a demonstration, experiment or inspection be held.
(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 in deciding whether to make an order, 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 materially altered.
...
30From the terms of subs (2)(a), it is apparent that the appellant had a right to be present at the view. A reasonable opportunity for the parties to be present is a essential requirement for a view to be directed. Both the requirements of subs (2) were described as "mandatory" by Pepper J in Environment Protection Authority v Unomedical Pty Ltd (No 2) [2009] NSWLEC 111 at [7]. Her Honour appears to have seen the question whether the appellant would be present at the view simply as one of the matters to be taken into account under subs (3)(a). That provision, however, does not affect the mandatory prerequisite of subs (2)(a).
31Of course, what subs (2)(a) requires is a reasonable opportunity for the parties to be present. A party may choose not to be. Early in the life of the Evidence Act, Hunt CJ at CL confirmed that in a criminal trial an accused may elect not to attend: R v Milat (Hunt CJ at CL, unreported 12 April 1996). The Chief Judge, sitting as a trial judge, was considering whether a view should be held, having been informed that the accused did not wished to be present at it.
32His Honour saw the accused's stance as a matter to be taken into account under subs (3)(a). He noted that, unlike the common law position, what happens on a view now constitutes evidence because of the provision in s 54 that a jury may draw any reasonable inference from what they see, hear or otherwise notice during it (at p 2). However, in determining that the view should proceed, one of matters he took into account was that it was intended "to be no more than inspection of a static site". There was not to be any demonstration, and he concluded that there was "no real danger that the absence of the accused is likely to lead to that evidence being misused". He noted that the avoidance of that danger was said by the Law Reform Commission to be the reason for the requirement in subs (3)(a) that consideration be given to whether the parties would be present (at p 3).
33As I have said, in the present case her Honour was told that the jury would simply inspect the police station without anything being said and, clearly, nothing in the nature of a demonstration was contemplated. Moreover, her Honour was understandably concerned about the prejudice which the appellant might suffer if he was seen by the jury restrained in the manner which his high security status required. The fact remains that, unlike the accused in Milat, he had made it clear that he wished nonetheless to be present.
34Of course, influential in her Honour's decision was the fact that the appellant's counsel would be at the view. No doubt, where an accused elects not to attend a view, the fact that his or her counsel would be in attendance would be an important factor in exercising the discretion under subs (3). On the other hand, the reference in subs (2)(a) to "the parties" is clearly to the parties themselves, and the right conferred upon them by that provision is not honoured by extending a reasonable opportunity merely to their legal representatives to be present. So much was recognised in Chotiputhsilpa v Waterhouse & Ors [2005] NSWCA 295. That was a motor vehicle personal injury case, in which one of the respondents asked the Court of Appeal to conduct a view of the accident scene. That application was opposed by the appellant (the plaintiff). The court considered the factors in subs (3), and one of the reasons for its refusal of the application was that the appellant would not be present as he had returned to his native Thailand: per Beazley JA, with whom Giles and Ipp JJA agreed at [86] - [89].
35The entitlement under subs (2)(a) of an accused to be present at a view is, of course, consistent with longstanding authority affirming that, generally speaking, an accused should be present at every stage of a criminal trial. In Lawrence v The King [1933] AC 699, Lord Atkin, giving the opinion of the Privy Council, said at 708:
"It is an essential principle of our criminal law that the trial for an indictable offence has to be conducted in the presence of the accused: and for this purpose trial means the whole of the proceedings, including sentence."
(His Lordship went on to acknowledge an exception in cases of misdemeanour, as opposed to felony, but that distinction has passed into history.)
36Subsequent authority has recognised that an accused's own behaviour may provide an exception to that apparently uncompromising statement of principle. In R v McHardie & Danielson [1983] 2 NSWLR 733, one of the respondents absconded from custody while the trial was in progress. The Court of Criminal Appeal (Begg, Lee and Cantor JJ) recognised the discretion of the trial judge in such a case to continue the trial in the accused's absence. The court said (at 739):
"The accused person has no 'right' to be absent from his trial - subject to cases of necessity (such as illness, where the interests of fairness and justice may require the trial either to be delayed or discontinued). Conversely, the accused person has a right to be present at his trial, subject to his conduct. It seems clearly established by authorities (as it is by commonsense) that if the accused person behaves intentionally to make the continuation of the trial impossible, and if such conduct is found by the trial judge to have that effect, he may be removed from the court...
After a great deal of consideration..., we have reached the conclusion that an accused person cannot be heard to say that he has been denied his right to be present at his trial when he voluntarily abandons that right...by escaping from lawful custody in prison, and thus failing to appear at the continuation of his trial."
37Their Honours considered authority on the question at 740-745, concluding (at 745) with an affirmation of "the general principle that at an indictable offence trial before a judge and jury the accused's presence is normally a pre-requisite to a fair trial," but adding that the failure of an accused to appear at trial after it has started through escape from lawful custody could correctly be described as "a waiver of his right to be present at his trial", leaving the trial judge with the discretion whether to continue the trial or discharge the jury.
38I should note that Hunt CJ at CL, presiding in the Court of Criminal Appeal, examined Lawrence and McHardie & Danielson in R v Hallocoglu (1992) 29 NSWLR 67, at 71-2. It is not necessary to refer to what his Honour there said. In that case it was held that a Crown appeal against sentence could be heard in the absence of the respondent, and sentence passed upon him, because he had deliberately left the country to avoid the consequences of a successful appeal. That position has since been put beyond doubt by the insertion of s 14A into the Criminal Appeal Act 1912.
39In the passage from McHardie & Danielson quoted above, the court recognised the power of the trial judge to remove an accused from the court if he or she intentionally behaves in such a way as to make the continuation of the trial impossible. Such a case was Eastman v R (1997) 158 ALR 107, in which the full Federal Court upheld the decision of the trial judge to remove the accused to a separate room with a video facility because of his persistent disruptive behaviour in the courtroom. The court said (at 138):
"The right of an accused to be present on his or her trial to hear the evidence and confront his or her accuser, while a paramount consideration, is not without qualification and the means by which it is exercised is subject to the control of the trial judge."
Their Honours referred to the passage in McHardie & Danielson which I have quoted, as well as to a passage affirming the same principle in R v Vernell [1953] VLR 590.
40In Milat (at p 3), Hunt CJ at CL said:
"The voluntary absence of the accused certainly does not render the evidence created by the view inadmissible. Moreover, although what happens on a view now constitutes evidence, it remains sufficiently distinct from the trial itself as not to require... the presence of the accused at that view in order for the trial to be effective."
Again, of course, these observations flowed from the choice of that accused not to attend the view.
41In this court, the Crown prosecutor focused on the discretion conferred by s 53(3) and submitted that, given the manner in which the view was conducted and the fact that the appellant's counsel was present, there had been no miscarriage of justice. The fact remains, however, that the view took place in the absence of the appellant, contrary to the mandatory requirement of subs (2)(a). It was not suggested that the level of security required by the appellant's high risk status bore on the question whether there could be a "reasonable opportunity" for him to be present, within the meaning of that provision. In my opinion, his absence from the view means that the trial was fundamentally flawed. Indeed, in oral argument the Crown prosecutor acknowledged that if the court found this ground established, the trial could not "be saved."
42In large part, the appellant's written submissions on this ground were directed to whether the conviction could be sustained by the application of the proviso to s 6(1) of the Criminal Appeal Act. Of course, there could be no question of the application of the proviso because I have found that ground 1 is made out and the conviction of the first count must be set aside. However, guidance is to be found in authority on whether the proviso can be applied when there has been a fundamental defect in the conduct of a trial.
43In Cesan v The Queen [2008] HCA 52, 236 CLR 358, French CJ said at [87] that there is "support for the proposition that a failure of the judicial process may be so fundamental as to result in a trial which is incurably flawed." The Chief Justice referred to the judgment of Gaudron, Gummow and Callinan JJ in Katsuno v The Queen (1999) 199 CLR 40, in which their Honours referred to Maher v The Queen (1987) 163 CLR 221 and Johns (Roger) v The Queen (1979) 141 CLR 409. In both of those cases convictions were set aside because of significant procedural defects in the trial. In Johns, counsel for the accused had withdrawn a challenge to a prospective juror made by his client without instructions to do so. In Maher, the Crown was allowed to add two counts to an indictment after the accused had pleaded not guilty to the indictment in its original form and the jury had been empanelled.
44In Katsuno, Gaudron, Gummow and Callinan said at [35]:
"At one level, the decisions in Maher and Johns are concerned with failure to comply with mandatory legislative provisions relating to the constitution and authority of the jury. At another, as is clear from the judgment of the court in Maher, they are concerned with 'failure to observe the requirements of the criminal process in a fundamental respect', of which the failure to observe mandatory provisions relating to the constitution and authority of the jury is but an example. A conviction simply cannot stand if the trial process is flawed in a fundamental respect." (Footnotes omitted.)
45In Cesan the Chief Justice, after citing that passage, continued at [88] - [89]:
"[88] If there be a flaw in a fundamental respect such that the appearance of injustice is indelibly stamped on the process and its outcome from the point of view of a reasonable and informed observer, this may be expressed by saying that public confidence would be undermined if the conviction were allowed to stand.
[89] A trial process 'flawed in a fundamental respect' falls into that category. Such deficiencies in process constitute miscarriages of justice. ..."
46The conduct of a view in breach of the statutory requirement to provide the accused with a reasonable opportunity to be present constitutes a fundamental flaw in the trial process. This ground is made out and, standing alone, would be sufficient to establish that the conviction must be set aside. However, as there is to be a new trial, it is necessary to consider the remaining ground of appeal which is directed to evidence of a consciousness of guilt.