| 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.…
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- AGLC
- Director of Public Prosecutions v Andrew Baker (Ruling No 1) [2022] VSC 704
- Case
- [2022] VSC 704
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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