DPP v Andrew Baker (Ruling No 3) - [2022] VSC 706

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 3)
MEDIUM NEUTRAL CITATION:	[2022] VSC 706

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CRIMINAL LAW – Murder – Evidence – Incriminating conduct – Allegation that accused created false trail – Staged phone communications – Evidence of accused’s awareness of violent death – DPP v Zhuang (Ruling) [2014] VSC 276 – Jury Directions Act 2015 (Vic) ss 18, 19, 20, 21, 22, 23.

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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:

Background

The Crown filed a Notice of Incriminating Conduct on 2 August 2021 (‘Crown’s Notice’) which complies with the notice provisions under s 19(1) of the Jury Directions Act 2015 (‘JDA’). The Crown’s Notice is attached to this ruling as Annexure ‘A’.

The Crown’s Notice sets out 14 items that it relies on as incriminating conduct. The Court is only required to rule on two items, being items d) and e), in the Crown’s Notice at this early stage. The questions for the Court are whether, on the whole of the evidence, these items are capable of being viewed by a jury as incriminating conduct, and whether the Crown should be permitted to rely on them in their opening address to the jury on that basis.

The background to the case against the accused has been described in the first of these rulings,[1] which concerned objections to certain hearsay utterances by the deceased, S Gatt.
[1]DPP v Andrew Baker (Ruling No 1) [2022] VSC 704 (‘Ruling No 1’).

Division 1 of the JDA regulates the admission and use of evidence of incriminating conduct. The relevant provisions are set out as follows: s 18 defines key terms; s 19 concerns notice requirements; s 20 sets out the test for admissibility of incriminating conduct evidence; s 21 concerns mandatory directions to be given to a jury if the prosecution relies on evidence of incriminating conduct; and ss 22 and 23 address certain additional directions that may be given. The focus of this ruling concerns ss 18 and 20.[2]
[2]There is no dispute that appropriate notice has been given under s 19 of the Jury Directions Act 2015 (‘JDA’). At this preliminary stage, I need not decide what specific jury directions may be required regarding each item of evidence relied on by the Crown as incriminating conduct.

Regarding item e) of the Crown’s Notice, the Defence have already addressed arguments concerning the admissibility of the letters and notes found at the Mountfield St premises.[3] However, the Defence seek to further agitate that those letters are not admissible as evidence of incriminating conduct, and they submit…

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 3)

Details

AGLC: Director of Public Prosecutions v Andrew Baker (Ruling No 3) [2022] VSC 706
Case: [2022] VSC 706
Decision Date: 21 November 2022

CaseChat Overview and Summary

The case of DPP v Andrew Baker (Ruling No 3) involved a significant criminal dispute before the Supreme Court of Victoria. The accused, Andrew Baker, was facing charges related to the murder of an individual. The prosecution's case included allegations that Baker had engaged in incriminating conduct, specifically creating a false trail by staging phone communications and demonstrating awareness of the violent death. The case hinged on whether this evidence was admissible and whether it could be used to establish the accused's guilt.

The legal issues central to this case revolved around the admissibility of the accused's staged communications and his awareness of the violent death. The court had to determine if these actions constituted incriminating conduct under the Jury Directions Act 2015 (Vic) and if they could be admitted as evidence against Baker. The ruling also examined whether such evidence was relevant to proving Baker's knowledge and intent in relation to the murder.

In reaching its decision, the court considered the principles outlined in DPP v Zhuang (Ruling) [2014] VSC 276, which provided guidance on the admissibility of incriminating conduct. The court held that the staged phone communications and Baker's awareness of the violent death were relevant to his state of mind and could be admitted as evidence. This evidence was deemed sufficient to establish a prima facie case for the jury to consider. The court's ruling thus allowed the prosecution to proceed with the incriminating conduct evidence against Baker.

The final orders of the court permitted the prosecution to use the incriminating conduct evidence in the trial against Andrew Baker. This decision set the stage for the jury to consider this evidence in determining the accused's guilt. The ruling clarified the legal standards for admitting such evidence and reinforced the importance of the accused's state of mind in criminal cases involving staged communications and awareness of violent death.

Orders