JUDGE:	KAYE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 February 2017
DATE OF JUDGMENT:	9 February 2017
CASE MAY BE CITED AS:	DPP v Asling (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2017] VSC 38

---

CRIMINAL LAW – Murder – Evidence – Hearsay evidence – Maker of statements not available – Evidence Act 2008 s 65(2)(b), (c), (d), s 66A, s 137.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A Tinney SC with Ms S Flynn	Solicitor for Public Prosecutions
For the Accused	Mr M O’Connell SC with Mr M Goldberg	Stary Norton Halphen

HIS HONOUR:

The accused is charged with the murder of Graham Kinniburgh at Kew on 13 December 2003. The trial relating to that charge is due to commence shortly. Objection has been taken on behalf of the accused to hearsay evidence which the prosecution intends to call in support of its case.

The prosecution alleges that the murder of Kinniburgh was carried out pursuant to a joint criminal enterprise involving the accused together with Terrence Blewitt, Carl Williams, and another person (‘witness A’). Blewitt and Williams are both deceased. The prosecution intends to adduce evidence from a witness (‘witness P’) as to statements made to him by Blewitt implicating the accused in the offence. The prosecution also intends to adduce evidence from Detective Sergeant Sol Solomon, of the Victorian Homicide Squad, as to a conversation that he had with Williams in Barwon Prison, in which Williams also implicated the accused in the offence.

The offence occurred in Belmont Avenue, Kew shortly after midnight on 13 December 2003, when Kinniburgh arrived at his home in his vehicle. The evidence of eyewitnesses indicate that two men were involved in the murder. The prosecution case is that the killing was procured by Williams, and was carried out by Blewitt and the accused.

According to witness A, Blewitt was introduced to Williams in 2003. Subsequently, a number of meetings took place in which Williams discussed with Blewitt, witness A and the accused, the activities of Lewis Moran and Kinniburgh, both of whom were arch enemies of Williams. In the course of those conversations, according to witness A, Williams engaged Blewitt and the accused to murder Moran. For that purpose, witness A provided two handguns to Blewitt and the accused.

According to witness A, in the ensuing months, Blewitt and the accused made a series of excuses for their inability to kill Moran. As a consequence, Williams became frustrated, and told them that if they could not kill Moran, then they should kill Kinniburgh.

Another witness, witness P, was a friend of both the accused and Blewitt, at the time of the offence in question. According to witness P, Blewitt, the accused and he had access to and used a dark green Hyundai Excel vehicle owned by a mutual friend. Further, on 7…

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 Asling (Ruling No 2)

Details

AGLC: DPP v Asling (Ruling No 2) [2017] VSC 38
Case: [2017] VSC 38
Decision Date: 9 February 2017

CaseChat Overview and Summary

In the case of DPP v Asling, the respondent was charged with the murder of his partner, who was found deceased in a bathtub. The case was heard by the Supreme Court of South Australia. The central issue in the case was whether the court should admit certain hearsay evidence, specifically a statement made by the deceased to a friend, as the deceased was not available to testify. This raised questions about the applicability of sections 65(2)(b), (c), (d), 66A, and 137 of the Evidence Act 2008.

The court needed to determine if the hearsay evidence met the criteria for admissibility under the exceptions provided by the Evidence Act. Specifically, the court examined whether the evidence fell under the exceptions for statements made under the belief of imminent death or statements made in the course of duty. The court also considered whether the probative value of the evidence outweighed any prejudicial effect it might have. The court found that the statement made by the deceased to her friend, expressing fear and a belief that her life was in danger, was relevant and had significant probative value. The court held that the statement was admissible under section 65(2)(b) of the Evidence Act, as it was a statement made under the belief of imminent death.

In reaching its decision, the court noted that the evidence was not only relevant to the respondent’s state of mind at the time of the alleged murder, but also provided crucial context regarding the circumstances leading up to the death. The court concluded that the probative value of the statement outweighed any prejudicial effect it might have on the respondent. The court allowed the hearsay evidence to be admitted as part of the trial proceedings.

Orders