R v AB & Baker (Ruling no 2) - [2008] VSC 107

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1545 of 2006

THE QUEEN

AB & BAKER

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	26, 27, & 31 March 2008, 01 April 2008
DATE OF RULING:	2 April 2008
CASE MAY BE CITED AS:	R v AB & Baker (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2008] VSC 107

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EVIDENCE - Admissibility - Connected events – res gestae.
EVIDENCE – Admissibility - Murder charge after death in fist fight – Relevance of accused’s boxing prowess.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P. N. Rose SC and Mr Lewis	Office of Public Prosecutions
For the Accused AB	Mr W. Stuart	Victoria Legal Aid
For the Accused Baker	Mr J. F. Desmond	Doogue & O’Brien

HIS HONOUR:

Having earlier made a ruling severing the presentment, the two accused in this matter now face trial on a single charge. [1] The charge is that on 29 November 2005 they murdered Albert Dudley Snowball.
[1]R v AB & Baker (Ruling No 1) [2008] VSC 106T

The Crown case is that the two accused and other associates attended a party in a converted warehouse in Brunswick on Sunday 27 November 2005; that fights broke out inside the area of the warehouse where the party was taking place which involved, amongst other people, the two accused; and that shortly afterwards a fight occurred in a stairwell just outside the party area, which involved the deceased and the two accused. The deceased went through a window and fell to the ground below. He later died. The Crown case is that the two accused and another person had reached an agreement (albeit perhaps unspoken) to assault and cause really serious injury to persons at the party. In the course of fulfilling that agreement the Crown says they assaulted people inside the party, and the two accused assaulted the deceased in the stairway causing him to go through the window and fall to the street below. The Crown foreshadows reliance upon the concepts of common purpose, aiding and abetting, and perhaps extended common purpose.

I have heard argument prior to empanelment on a number of issues. From that argument, and from a reading of the transcript of the committals, it becomes apparent that a number of issues will be raised at trial. Whilst it will not be an issue that the two accused were present in the area of the warehouse where the party was conducted, and in the stairway, when the fighting occurred, there will be an issue as to identity, in the sense of what person performed what actions. The issue of intention will be important. The two accused will contend that the prosecution cannot prove beyond reasonable doubt a relevant intention to kill or cause really serious injury to the deceased. All of the issues concerning accessorial liability will be controversial. The issues of self defence and accident have been foreshadowed. Counsel for both…

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 R v AB & Baker (Ruling no 2)

Details

AGLC: R v AB and Baker (Ruling no 2) [2008] VSC 107
Case: [2008] VSC 107
Decision Date: 2 April 2008

CaseChat Overview and Summary

In the case of R v AB & Baker, the defendants were charged with murder following the death of a third party during a fistfight. The matter was heard in the Supreme Court of a state in Australia. The primary issue before the court was whether evidence of the accused's boxing prowess was admissible in establishing the cause of death and whether the actions of the accused were part of the res gestae, the connected events of the incident.

The court needed to determine whether the accused's previous boxing experience and prowess was relevant and admissible in establishing the cause of death and whether the events were part of the res gestae. This included examining whether the accused's actions, including his boxing ability, contributed to the circumstances leading up to the death. The court also needed to consider whether the evidence was relevant to the circumstances of the case and whether it assisted in establishing the facts of the matter.

The court ruled that the evidence of the accused's boxing prowess was admissible as it was relevant to the circumstances of the incident and could assist in establishing the cause of death. The court found that the accused's actions were part of the res gestae, the connected events of the incident, and therefore admissible. The court held that the evidence was relevant to the circumstances of the case and assisted in establishing the facts of the matter. The court found that the accused's boxing prowess was relevant to the circumstances of the incident, including the cause of death, and therefore admissible.

The court ordered that the evidence of the accused's boxing prowess be admitted as evidence in the trial. The court also ordered that the matter proceed to trial on the murder charge. The court held that the evidence was relevant to the circumstances of the case and assisted in establishing the facts of the matter. The court found that the accused's actions were part of the res gestae, the connected events of the incident, and therefore admissible. The court held that the evidence was relevant to the circumstances of the case and assisted in establishing the facts of the matter.

Orders