2.1 – Views (Demonstrations, Inspections and
Experiments)1
2.1.1 - Bench Notes
Summary of Uniform Evidence Act Provisions

Section 53 regulates when a judge may order a demonstration,
experiment or inspection (collectively, a “view”).

Section 54 allows the jury to draw any reasonable inference from
what it sees, hears or otherwise notices during a view.

Section 52 preserves the operation of any other laws and rules of
practice that permit evidence to be adduced other than by witnesses
giving evidence or documents being tendered in evidence.
Main Changes Introduced by the Uniform Evidence Act

At common law, the word “view” refers to an inspection, and is
contrasted with a “demonstration”. Under s53 the word “view”
encompasses inspections, demonstrations and experiments.

A judge may only order a view on the application of a party.

A view may be ordered even if one or more of the parties do not
consent.

The circumstances to be demonstrated no longer need to be identical
to the circumstances that existed at the time of the event in
question. Similarity of circumstances (or the extent of any
dissimilarity) is now merely one factor that a judge must consider, in
deciding whether it is appropriate to order a view.

The common law rule that the jury could not use its observations
during a view as evidence in the proceeding has been abolished. The
jury may now draw any reasonable inference from what it observes.
What is a View?
1.
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Under s53 of the Evidence Act 2008, the court may order a
“demonstration, experiment or inspection” (collectively, a “view”).2
This document was last updated on 2 March 2015.
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
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2.
These terms are not defined in the Evidence Act 2008. Based on the
common law and the conventional meaning of the terms:

An inspection involves the court travelling to view a location or
an object that could not be brought into the courtroom;

A demonstration builds on an inspection by allowing a witness
to explain the incident in question, demonstrate the operation of
a machine or other object, or attempt to recreate an event;

An experiment involves the jury watching a person carry out a
test or trial for the purpose of discovering something or testing
a principle or hypothesis (Evans v R (2007) 235 CLR 521).
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:

The parties will be given a reasonable opportunity to be
present; and

The judge and jury will be present (Evidence Act 2008 s53).
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.
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).
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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:

Whether the parties will be present;

Whether the view will assist the court to resolve issues of fact or
understand the evidence;

The danger that the view might be unfairly prejudicial, might be
misleading or confusing, or might cause or result in undue
waste of time;

In the case of a demonstration, the extent to which it will
properly reproduce the conduct or event to be demonstrated;

In the case of an inspection, the extent to which the place or
thing being inspected has been materially altered (Evidence Act
2008 s53).
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).
Directions on Views
16. The judge should instruct the jury that inspections and experiments
are only allowed under the strict control of the court. Jurors must not
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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: Bench Notes for further information).
17. Before conducting a view, the judge should explain its purpose and
how the jury may use the view in the circumstances of the case.
18. 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).3
Placing the View on the Record
19. 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] VSCA 335; R v FD (2006) 160 A Crim R 392).
20. 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] VSCA 335).
21. A view may be facilitated by a sworn ‘shower’ who points out what
are said to be relevant features on the view.
22. A summary may be compiled through:

Recording a video of the view (provided it does not disclose the
identity of the jurors). If a view is recorded, the judge should
ensure that any questions from the jury are also recorded by
reading the question out himself or herself;

A shorthand writer keeping a summary of the view while it
takes place;

The judge making a summary on the return to court. Some
judges invite counsel to prepare an agreed summary, which the
judge will then settle (see Ha v R [2014] VSCA 335).
23. 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] VSCA 335).
Witnesses should not accompany the jury unless conducting a demonstration or
experiment.
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24. 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] VSCA 335).
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