Bufton v The Queen - [2019] VSCA 96

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0082

JANICE JOY BUFTON	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, KAYE and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 May 2019
DATE OF JUDGMENT:	1 May 2019
DATE OF REASONS:	2 May 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 96
JUDGMENT APPEALED FROM:	R v Bufton (Ruling No 1) [2019] VSC 232

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CRIMINAL LAW – Appeal – Interlocutory appeal – Evidence – Admissibility – Murder – Applicant struck deceased with motor vehicle – Prosecution reliance on hearsay representations of deceased eyewitness – Witness gave statement and participated in a video-recorded ‘walk-through’ re-enactment – Whether trial judge erred in ruling representations admissible – Whether representations made in circumstances that make it likely they are reliable – Whether probative value of evidence outweighs the danger of unfair prejudice to the accused – Leave to appeal refused – Evidence Act 2008 ss 59, 62, 65(2)(b) and (c) – Sio v The Queen (2016) 259 CLR 47; DPP v Asling (Ruling No 2) [2017] VSC 38 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Danos	Irwin & Irwin Law
For the Respondents	Mr K Armstrong	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA
KAYE JA
NIALL JA:

Introduction

At about 12.50 pm on Monday, 30 October 2017, Colin Snooks suffered fatal injuries when run over by a Holden utility motor vehicle driven by the applicant. When struck by the vehicle, Mr Snooks was walking towards Fyans Road, along the driveway of the applicant’s rural property situated at 221 Fyans Road, Fyans Creek.

The prosecution alleges that the applicant murdered Mr Snooks, having deliberately driven the utility at him intending either to kill him or cause him really serious injury. According to the applicant, the collision was an accident. She has pleaded not guilty to murder (although a jury is yet to be empanelled).

Benjamin Weston witnessed the collision. He made a statement to police on the day of the fatal incident, and the next day took part in a video-recorded ‘walk-through’ and interview with police at the scene. Mr Weston died, however, on 8 October 2018, before a committal hearing was held. Thus, the applicant was denied the opportunity of testing Mr Weston’s evidence by cross-examination.

Relying on ss 65(2)(b) and (c) of the Evidence Act 2008 (‘the Act’), the prosecution has served a hearsay notice on the applicant pursuant to s 67 of the Act, with respect to previous representations made by Mr Weston in his statement to police on 30 October 2017 and the ‘video re-enactment’ on 31 October 2017. The substance of the previous representations are:[1]

a.   As to observations of the [applicant] when she attended at Green Hill Lake Reserve at Ararat;
b.   As to the termination of a telephone conversation with Colin Snooks on 29 October 2017; and
c.   As to the events of 30 October 2017 prior to and during his attendance at 221 Fyans Rd., Fyans Creek.

[1]See [26]…

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: Janice Joy Bufton v The Queen [2019] VSCA 96
Case: [2019] VSCA 96
Decision Date: 1 May 2019

CaseChat Overview and Summary

The applicant, Bufton, sought an interlocutory appeal against a ruling that certain evidence was admissible in a trial for murder. Bufton was accused of striking the deceased with his motor vehicle. The prosecution sought to rely on hearsay representations made by the deceased, who was an eyewitness, prior to his death. The deceased had given a statement to police and participated in a video-recorded re-enactment of the incident. The High Court was asked to determine whether the trial judge erred in admitting this evidence, whether the representations were made in circumstances that make it likely they are reliable, and whether the probative value of the evidence outweighs the danger of unfair prejudice to Bufton.

The court examined the statutory provisions of the Evidence Act 2008 and the principles established in Sio v The Queen and DPP v Asling (Ruling No 2). The High Court found that the trial judge correctly exercised their discretion in admitting the evidence. The court held that the representations were made in circumstances that made it likely they were reliable, as they were consistent and corroborated by other evidence. The probative value of the evidence was considered to outweigh any danger of unfair prejudice to Bufton. The High Court found no error in the trial judge's ruling and refused leave to appeal.

The court's reasoning was based on the specific circumstances of the case and the principles established in previous cases. The High Court found that the representations were reliable and consistent, and that the probative value of the evidence outweighed any potential prejudice to Bufton. The High Court's decision reinforces the importance of considering the specific circumstances of each case when determining the admissibility of hearsay evidence. The court's decision also highlights the importance of ensuring that the probative value of evidence outweighs any potential prejudice to the accused.

Orders