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2.1 - Views

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What is a view?

  1. Under s53 of the Evidence Act 2008, the court may order a "demonstration, experiment or inspection" (collectively, a "view"). [1]
  2. These terms are not defined in the Evidence Act 2008. Based on the common law and the conventional meaning of the terms:
  3. Views take place outside the courtroom. Section 53 therefore does not apply to the examination of exhibits inside the courtroom, or courtroom demonstrations of the size or position of objects (Evans v R (2007) 235 CLR 521. See also Evidence Act 2008 s53(5)).
  4. The "experiments" referred to in s53 are limited to those conducted as part of the trial in front of the jury, and do not include those conducted before the trial and described by witnesses at the trial (Evans v R (2007) 235 CLR 521; DPP v Farquharson (No.2) (Ruling No. 4) [2010] VSC 210).

    When May a View Be Ordered

  5. A judge may order a view on the application of a party (Evidence Act 2008 s53).
  6. Before ordering a view, the judge must be satisfied that:
  7. While the presence of the judge and jury at a view is mandatory, a party may choose not to be present (R v Milat NSWSC 12/4/96).
  8. In some cases, counsel have sought to be excused from being present during a view. As a matter of principle, juries should not receive evidence in the absence of counsel for each party and there are significant limits on when a judge can communicate with a jury without the knowledge of counsel. Given that a view can be used as evidence and the jury can ask questions during a view, it will rarely be appropriate for a judge to excuse counsel for attending the view.
  9. It is at the trial judge’s discretion whether to hold a view in a particular case (R v Delon (1992) 29 NSWLR 29).
  10. In deciding how to exercise the discretion, a judge must consider:
  11. Unlike at common law (see, e.g., R v Alexander [1979] VR 615), the circumstances to be demonstrated do not need to be identical to the circumstances that existed at the time of the event in question. Similarity of circumstances is merely one factor that a judge must consider (Evidence Act 2008 s53).
  12. A view may take place at any time during the trial. While this can even extend to conducting a view after the jury commences deliberations, the judge must have special regard for the prohibition on the prosecution splitting its case and the risk of prejudice to the accused when additional evidence is introduced after closing addresses (R v Delon (1992) 29 NSWLR 29).
  13. As the Evidence Act 2008 substantially changed the law in this area, common law cases on the availability of a view must be read with considerable caution.

    For What Purposes May a View be Used?

  14. The jury may use a view as a source of evidence in the case, and may draw any reasonable inferences from what it sees, hears or otherwise notices during a view (Evidence Act 2008 s54).
  15. A view may also allow the jury to better understand the evidence given in court and to assess the credibility or value of that evidence (see, e.g., R v Alexander [1979] VR 615; Scott v Numurkah Corporation (1954) 91 CLR 30).

    Conduct of a View

  16. A view may be facilitated by a sworn ‘shower’ who points out what are said to be relevant features on the view. The ‘shower’ is usually a member of court staff, who has previously received a ‘dry run’ of the view with the assistance of the informant. It is only in an exceptional case that the informant should be sworn as the ‘shower’ (Aston v The Queen [2019] VSCA 225, [90]-[93]).
  17. Those responsible for transporting the jury to a view, including both jury keepers and any bus drivers, should be made aware that they must not discuss anything related to the case in the presence of the jury (Aston v The Queen [2019] VSCA 225, [82]).

    Directions on Views

  18. The judge should instruct the jury that inspections and experiments are only allowed under the strict control of the court. Jurors must not conduct their own inspections or experiments during deliberations. Such conduct is a criminal offence (R v Skaf (2004) 60 NSWLR 86; Evidence Act 2008 s53(4); Juries Act 2000 s78A. See Decide Solely on the Evidence for further information).
  19. Before conducting a view, the judge should explain its purpose and how the jury may use the view in the circumstances of the case.
  20. The judge should tell the jury not to talk to any accompanying witnesses, police officers or legal representatives during the view. (Evans v R (2007) 235 CLR 521; R v Ashton (1944) 61 WN (NSW) 134; R v Neilan [1992] 1 VR 57). [2]

    Placing the View on the Record

  21. Historically, one argument against using views as evidence was that there was no way for the results of the view to be transmitted to an appellate court. To overcome this problem, upon returning to court, judges should sum up (in the presence of the jury) what transpired, so that there is an accurate record of what occurred on the transcript (Ha v R (2014) 44 VR 319; R v FD (2006) 160 A Crim R 392).
  22. This is an important tool to allow an appellate court to know what occurred on a view and so assess what inferences may have been open to a jury as a result of the view (Ha v R (2014) 44 VR 319).
  23. A summary may be compiled through:
  24. The summary should identify where the jury were taken, what they observed and from what vantage points. It need not draw conclusions about what was observable from those vantage points (Ha v R (2014) 44 VR 319).
  25. The summary of the view should include a note of any questions the jury asked in the course of the view (Ha v R (2014) 44 VR 319).

    Notes

[1] While the heading of s53 is "views", that term is not used in the provision. It has been held that it was Parliament’s intention to use the word "view" as a general word to encompass demonstrations, experiments and inspections. This differs from the common law, where a view was an inspection and did not encompass a demonstration or experiment (Hughes v Janrule [2010] ACTSC 5).

[2] Witnesses should not accompany the jury unless conducting a demonstration or experiment.

Last updated: 23 October 2019

In This Section

2.1.1 – Charge: Views

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

1.5 – Decide Solely on the Evidence

1.6 – Assessing Witnesses

1.7 – Onus and Standard of Proof

1.8 - Separate Consideration

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.4 – Unavailable witnesses

2.5 – Witness invoking Evidence Act 2008 s128

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.12 - Taking Verdicts

3.13 - Perseverance and Majority Verdict Directions

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.2 - Child Witnesses

4.3 - Character Evidence

4.4 - Prosecution Witness's Motive to Lie

4.5 - Confessions and Admissions

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.10 - Prosecution Failure to Call or Question Witnesses

4.11 - Defence Failure to Call Witnesses

4.12 - Failure to Challenge Evidence (Browne v Dunn)

4.13 - Identification Evidence

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.16 - Silence in Response to People in Authority

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.19 - Coincidence Evidence

4.20 - Other forms of other misconduct evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.23 - Criminally Concerned Witness Warnings

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.26 - Differences in a Complainant’s Account

4.27 - Alibi

Part 5: Complicity

5.1 - Overview

5.2 - Statutory Complicity (From 1/11/14)

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.4 - Extended Common Purpose (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.8 – Commonwealth Joint Commission (s 11.2A)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

6.4 - Attempt (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.3 - Common Law Self-Defence

8.4 - Mental Impairment

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.7 - Common Law Intoxication

8.8 - Automatism

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.11 - Common Law Duress

8.12 - Provocation

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.2 - People Smuggling (Basic Offence)

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.1 – Investigations into Unfitness to Stand Trial

10.2 – Special Hearings