ATARIKA KUSSASI and Others v. THE REPUBLIC

EXTRACT FORM JUDGMENT:

“The English court of appeal in Salsbury v Woodland drew a distinction between viewing a demonstration and where a judge visited the scene simply in order the better to understand evidence already given, and stated the principle as follows: ‘Generally a view should be held only by appointment with representatives of the parties. There was, however, distinction between viewing a demonstration which the judge should not do without both parties’ representatives and a view in the true sense where the judge visited the scene simply in order the better to understand evidence already given. In the latter case the judge need not be accompanied by the parties, but if he intended to have such a view, he would be well advised to warn the parties of his intention. There might well have been material changes between the date of the accident and that of the trial. But there was nothing improper in what the judge did in the present case. The instant case in my view is of the latter class, where the judge visited the scene simply in order the better to understand evidence already given. Nor can it be said that there might have been material changes in the scene of theft since the alleged date of commission to necessitate the parties being intimated. In my opinion, despite this being a criminal trial, what is material is whether there was a substantial miscarriage of justice as a result of the private view by the learned magistrate.