It is often helpful to view the place where an offence is alleged to have occurred or to inspect items of real evidence that may be entered into evidence. In preparation for a murder trial, not too long ago, the defence lawyer had a videotape prepared from inside the house in which the killing took place. The victim had feared for her life for several months prior to her death. She had boarded up all the windows with plywood and drawn all the drapes.
The accused insisted that she had asked him “to watch out for her” whenever he was in the neighbourhood to protect her in case anyone was around. The accused testified that one night he saw broken glass in the driveway and knocked on the door to satisfy himself that she was safe. When no one answered he opened the door, closed it behind him and entered. Suddenly, he said, he was set upon and clubbed. In the utter blackness of the room, he could see neither the assailant nor the instrument with which he was being clubbed. Later, the police found a baseball bat stained at the large end with the accused’s blood and lying under the kitchen table. The police found the victim, too, in the kitchen. She lay dead on the floor with multiple stab wounds.
The defence produced a videotape of the interior of the house at precisely the same time of day as the alleged offence. The purpose was to show that the boarded-up windows and the drawn curtains had cast the entire residence into complete and utter darkness. In the blind chaos of that setting, the accused said, he stumbled away from the attack, groped blindly in a drawer, felt the handle of what proved to be a knife, and then turned the weapon upon his attacker believing the assailant to be a person who might have harmed or wished to harm the deceased. As the videotape played, the Judge watched intently, then blurted in full range of the jury, “Well you can’t see anything.” Precisely. Nor could the accused have seen anything. Only an inspection of the place at the time of the alleged crime could have led to the decision to demonstrate for the jury the conditions or circumstances within which the alleged offence was committed.
Section 652 of the Code provides that a Judge may, where it appears to be in the interest of Justice, at any time after the jury has been sworn and before it gives its verdict, direct the jury to have a view of any place, thing or person, and shall give directions respecting the manner in which, and the persons by whom, the place, thing or person shall be shown to the jury. By virtue of section 572, this section is also applicable to non-jury cases and a Provincial Court Judge has the power to order the taking of a view.1