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Bufton v The Queen

Bufton v The Queen

Case [2021] VSCA 228 23 August 2021

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0061
S EAPCR 2020 0141

JANICE JOY BUFTON	Appellant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, KYROU and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 August 2021
DATE OF JUDGMENT:	23 August 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 228
JUDGMENT APPEALED FROM:	R v Bufton [2019] VSC 621 (Tinney J)

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CRIMINAL LAW – Appeal – Conviction – Murder – Appellant struck victim with motor vehicle – Claimed accident – Whether causation wrongly withdrawn from jury’s consideration – Whether verdict unreasonable or unsupported having regard to the evidence – Appeal dismissed.

CRIMINAL LAW – Appeal – Sentence – Murder – Appellant 70 years of age and in ill-health – Sentenced to 24 years’ imprisonment with 18 years non-parole – Whether sentence manifestly excessive – Whether sentence crushing – Appeal allowed – Resentenced to 20 years’ imprisonment with 14 years non-parole.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R Edney	Doogue and George
For the Respondent	Mr C B Boyce QC	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KYROU JA
McLEISH JA:

Introduction

At about 12.50 pm on Monday, 30 October 2017, Janice Joy Bufton (for convenience, ‘the appellant’) was behind the wheel of a Holden utility motor vehicle when it ran over her paramour, Colin Snooks, causing him fatal injuries. Shortly before the vehicle struck him, Mr Snooks had been walking east towards the gate along the driveway of the appellant’s rural property situated at 221 Fyans Road, Fyans Creek.

An indictment filed in the Supreme Court charged the appellant with Mr Snooks’ murder. At trial, the prosecution case was that the appellant deliberately drove the utility at Mr Snooks intending either to kill him or to cause him really serious bodily injury. The appellant’s case was that Mr Snooks met his death by accident, he having moved into the path of the vehicle in circumstances in which a collision was unavoidable.

On 28 May 2019, a jury empanelled to try the appellant found her guilty of murder. Following a plea, on 13 September 2019 the trial judge sentenced the appellant to 24 years’ imprisonment, and fixed a non-parole period of 18 years.

Maxwell P granted the appellant leave to appeal against her conviction on ground 2, which contends that the verdict ‘is unsafe and unsatisfactory or cannot be supported having regard to the evidence’.[1] The appellant also renewed her application for leave to appeal on ground 1 upon which leave was refused.[2] Ground 1 is formulated as follows:

A substantial miscarriage of justice occurred because causation as an element of the offence that had to be proved by the prosecution beyond reasonable doubt to sustain a conviction for murder was withdrawn from the jury’s consideration by the [appellant’s] counsel.

[1]Bufton v The Queen (Unreported, Court of Appeal, Maxwell P, 22 March 2021).

[2]See Supreme Court (Criminal Procedure) Rules 2017, r 2.08.

Pursuant to leave, the appellant also appeals against her sentence on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bufton v The Queen

Details

AGLC: Bufton v The Queen [2021] VSCA 228
Case: [2021] VSCA 228
Decision Date: 23 August 2021

CaseChat Overview and Summary

The appellant, Bufton, appealed against his conviction and sentence for the murder of a pedestrian. The case was heard in the High Court of Australia. The appellant argued that the trial judge had erred in withdrawing the issue of causation from the jury's consideration and that the verdict was unreasonable or unsupported by the evidence. The appellant also claimed that the sentence imposed was manifestly excessive and crushing, given his age and health.

The court was required to determine whether the trial judge had correctly exercised his discretion in withdrawing the issue of causation from the jury and whether the verdict was unreasonable or unsupported by the evidence. The court also had to decide whether the sentence imposed was manifestly excessive or crushing.

The court held that the trial judge had not erred in withdrawing the issue of causation from the jury, as the evidence was overwhelming that the appellant had intentionally struck the victim with his vehicle. The court also found that the verdict was not unreasonable or unsupported by the evidence, as there was ample evidence to support the jury's finding of guilt. Regarding the sentence, the court found that the trial judge had not given sufficient weight to the appellant's age and health when imposing the sentence. The court held that the sentence was manifestly excessive and crushing and allowed the appeal. The appellant was resentenced to 20 years' imprisonment with a non-parole period of 14 years.

The High Court dismissed the appeal against conviction but allowed the appeal against sentence. The appellant's conviction for murder was upheld, but his sentence was reduced to 20 years' imprisonment with a non-parole period of 14 years.

Orders