R v Astbury (Ruling No 1) - [2018] VSC 577

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0290

THE QUEEN

ALEXANDER DAVID ASTBURY

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JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 October 2018
DATE OF RULING:	2 October 2018
CASE MAY BE CITED AS:	R v Astbury (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2018] VSC 577

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CRIMINAL LAW – Murder – Evidence – Witnesses’ observations of accused in days before alleged murder – Observations suggestive of a ‘dislocated emotional state’ – Whether observations relevant – Relevant to intention and to self-defence – Whether probative value outweighed by danger of unfair prejudice – Risk of prejudice manageable with curial directions – Evidence Act 2008 ss 55, 135, 137.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B Walmsley QC with Mr S Devlin	Mr J Cain, Solicitor for Public Prosecutions
For the Accused	Mr T Marsh with Ms E Ramsay	Victoria Legal Aid

HER HONOUR:

Introduction

Alexander David Astbury (‘the accused’) is charged with having murdered Rafet Demirel (‘the deceased’) on 11 February 2017 at 17 Baxter Street, Coburg, Victoria. One part of the Crown case is that, on the previous day, the accused and the deceased had talked about the former’s ongoing conflict with his partner, which had attracted the attention of several neighbours.

On 11 February 2017, the accused attended at the deceased’s home, which was the second bungalow out the back of 17 Baxter Street. During that meeting he assaulted the deceased. The accused admits that this struggle occurred and, further, that it caused the deceased’s death. There is therefore no issue as to causation in this trial.

The central issue at trial will be whether the prosecution can prove beyond reasonable doubt that the accused intended to kill or cause really serious injury to the deceased. Another issue will be whether the accused killed the deceased in self-defence.

The Crown have indicated that they will rely on a combination of circumstantial evidence to prove the accused had the requisite intention for murder. This includes post-mortem evidence from a pathologist and blood pattern analysis. The Crown also seeks to rely on evidence from four lay witnesses who observed the actions of the accused in the days before and, in particular, the day of the homicide.

The defence objects to some of the evidence of the abovementioned four lay witnesses. The objection, as I understand it, is that the evidence is not relevant and, even if it were, its probative value is outweighed by the risk of unfair prejudice to the accused. The submissions were couched in the terms of ss 55, 135 and 137 of the Evidence Act 2008 (‘the Act’).

The disputed evidence

It is necessary to set out in some detail the evidence that is in dispute. As I have said, the defence objects to the observations made by four witnesses of the accused in the days prior and, in particular, on the day of the homicide. The observations include, among other things,…

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.

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Details

Case: [2018] VSC 577
Decision Date: 2 October 2018

CaseChat Overview and Summary

In the case of R v Astbury, the respondent was charged with murder, and the prosecution sought to introduce evidence of witnesses' observations of the respondent in the days before the alleged murder. These observations suggested that the respondent was in a dislocated emotional state. The court had to determine whether this evidence was relevant to the issues of the respondent's intention and self-defence, and if so, whether its probative value outweighed the danger of unfair prejudice. The court considered provisions from the Evidence Act 2008, including sections 55, 135, and 137, which address relevance, prejudicial effect, and the discretion of the court to exclude evidence.

The court identified that the observations might be relevant to the respondent's state of mind at the time of the alleged murder, potentially affecting both intention and the claim of self-defence. The primary legal issue was whether the probative value of this evidence was sufficient to justify its admission, despite the risk of unfair prejudice. The court noted that the prejudicial effect could be managed through appropriate directions to the jury, ensuring they understood the limited purpose for which the evidence was being introduced. The court assessed the potential prejudice against the importance of the evidence in determining the facts of the case.

Upon weighing these considerations, the court ruled that the evidence of the respondent's emotional state was relevant and that its probative value was not substantially outweighed by the danger of unfair prejudice. The court determined that the risk of prejudice could be effectively managed by issuing clear directions to the jury, which would help them understand the limited purpose of the evidence. Consequently, the court admitted the evidence, subject to the specified curial directions.

The court ordered that the evidence of the respondent's emotional state, as observed by the witnesses, be admitted into the trial. This evidence was to be presented with explicit directions to the jury regarding its limited purpose, aiming to mitigate the risk of unfair prejudice while allowing for its probative value to inform the jury's decision on the respondent's intention and self-defence claims.

Orders