DPP v Andrew Baker (Ruling No 1) - [2022] VSC 704

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2021 0094

DIRECTOR OF PUBLIC PROSECUTIONS	Crown
v
ANDREW BAKER	Accused

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JUDGE:	Jane Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	14–21 June 2022
DATE OF RULING:	21 November 2022
CASE MAY BE CITED AS:	DPP v Andrew Baker (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2022] VSC 704

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CRIMINAL LAW – Murder – Evidence – Hearsay – Relevance – Whether probative value of disputed hearsay representations outweighed by danger of unfair prejudice – Disputed hearsay representations arising out of six alleged incidents – Evidence Act 2008 (Vic) ss 65, 66, 135, 137 – Azizi v The Queen [2012] VSCA 205 – SIO v The Queen (2016) 259 CLR 47 – DPP v Thomas [2021] VSCA 269 – DPP v Lo (Ruling No 2) [2018] VSC 148.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J Dickie with Ms N Deltondo	Office of Public Prosecutions
For the Accused	Mr J Saunders with Ms S Thomas	Tait Lawyers

HER HONOUR:

Introduction

This ruling concerns a large number of disputed items of evidence under the hearsay provisions in the Evidence Act 2008 (Vic) (‘EA’).

The accused is charged with murder and his trial is scheduled to take place in early 2023.

The indictment alleges that the accused at Kensington murdered Sarah Jane Gatt (‘S Gatt’) sometime between 19 and 23 April 2017.

Background facts

The facts alleged by the Crown in the Summary of Prosecution Opening (‘SPO’)[1] and the way the Crown puts its case are complex. The key factual allegations are as follows.
[1]Amended Summary of Prosecution Opening, dated 13 December 2021. I received submissions from parties at various times during the preliminary argument, including Defence Pre-trial Submissions dated 29 April 2022 (document dated 29 April 2020); Crown Submissions, dated 6 June 2022; Defence Submissions in Reply dated 21 June 2022.

The deceased, S Gatt, was 39 years old at the time of her death. She suffered from longstanding mental health and substance abuse issues. She had been residing for many years in a public housing premises at 2/57 Lambeth Street, Kensington (‘the Lambeth St premises’).

The accused is a 55 year old man. He was arrested for S Gatt’s murder on 15 December 2019 and has been remanded in custody since that date.

The accused and S Gatt had been in an intermittent relationship from about 2014, having originally met through a mutual friend, Justin Gabriele. The accused man’s relationship with S Gatt was turbulent, and she had made several reports to police about his violence towards her. Those prior incidents, and representations made by S Gatt in the context of those incidents, are the subject of this ruling. I will go into more detail about those incidents below.

Prior to her death, S Gatt was residing at the Lambeth St premises. Between 2014-2017, the accused regularly resided with her there, the most recent period being between 3 October 2016 and 9 February 2017.…

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 DPP v Andrew Baker (Ruling No 1)

Details

AGLC: Director of Public Prosecutions v Andrew Baker (Ruling No 1) [2022] VSC 704
Case: [2022] VSC 704
Decision Date: 21 November 2022

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus Andrew Baker, the defendant was charged with the murder of a person. The case was heard in the Supreme Court of Victoria. The primary issue before the court was whether the probative value of hearsay evidence, which the prosecution sought to introduce, outweighed the risk of unfair prejudice to the defendant. This hearsay evidence comprised statements made by the defendant during six separate incidents, which the prosecution claimed were relevant to the murder charge.

The court had to determine whether the hearsay evidence, which the prosecution intended to introduce, met the criteria outlined in sections 65 and 66 of the Evidence Act 2008 (Vic). The court also considered the discretionary exclusion under section 135, and the weight to be given to the evidence under section 137, in light of previous case law such as Azizi v The Queen, SIO v The Queen, DPP v Thomas, and DPP v Lo (Ruling No 2). The court examined the probative value of the evidence in relation to the murder charge, the risk of unfair prejudice, and whether the evidence was necessary for a just determination of the proceeding.

The court found that the probative value of the hearsay evidence was outweighed by the danger of unfair prejudice to the defendant. The court emphasised the importance of protecting the rights of the accused, and the potential for the evidence to confuse the issues or mislead the jury. The court held that the hearsay evidence did not meet the criteria for admissibility under the Evidence Act and was therefore inadmissible. The court also noted that the evidence was not necessary for a just determination of the proceeding.

The court ruled that the hearsay evidence would be excluded from the trial. The court further ordered that the prosecution was not to refer to the hearsay evidence in their opening address or during the trial, and that the jury was to be directed to disregard any inadvertent references to the hearsay evidence.

Orders