Evans v The Queen [2007] HCA 59 (13 December 2007)

[2007] HCA 59

Criminal law – Evidence – Admissibility of in court demonstrations – An armed man wearing overalls, balaclava and sunglasses committed a robbery – During the trial the appellant was required to wear overalls and a balaclava found at his residence and sunglasses not in evidence as well as walk before the jury and say words attributed to the robber (“the in court demonstration”) – Whether the in court demonstration was relevant – Whether the in court demonstration was unfairly prejudicial – Relevance of distinction between demonstrations, experiments, inspections, reconstructions and views – Whether s 53 of the  Evidence Act 1995   (NSW) (“the Act”) applied to in court demonstrations – Whether requiring the appellant to perform the in court demonstration was permitted either by s 53 of the Act or at common law.

Criminal law – Evidence – Admissibility – Whether showing witnesses the overalls and balaclava found at the appellant’s residence was relevant – Whether showing witnesses the overalls and balaclava was unfairly prejudicial.

Criminal law – Appeals – Application of the proviso- Whether the trial judge’s error in not admitting alibi evidence which the appellant proposed to call denied the application of the proviso – Whether the failure of the trial judge to give adequate reasons for rulings made during trial was a miscarriage of justice – Whether the judicial warnings to the jury were adequate – Whether the in court demonstration was so prejudicial as to deny the application of the proviso – Whether the trial so departed from the fundamental assumptions underpinning a fair trial that the proviso could not or should not be engaged.

Words and phrases – “demonstration”, “experiment”, “inspection”, “unfairly prejudicial”, “reconstruction”, “relevance”, “view”.

Evidence Act 1995  (NSW), ss 53, 55, 137.