R v Astbury (Ruling No 2) - [2018] VSC 592

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:	5 October 2018
DATE OF RULING:	8 October 2018
CASE MAY BE CITED AS:	R v Astbury (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2018] VSC 592

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CRIMINAL LAW – Murder – Evidence – Character evidence – Admissibility – Accused seeking limited good character direction – Evidence confined to lack of prior convictions for violent offending – Crown proposing to call evidence in rebuttal – Evidence that accused ‘pushed’ partner on night before homicide – Whether evidence relevant – Whether probative value outweighed by danger of unfair prejudice – Evidence Act 2008 ss 55, 110, 135, 136 and 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:

Alexander David Astbury is charged with murdering Rafet Demirel on 11 February 2017 at 17 Baxter St, Coburg, Victoria. Mr Astbury admits that he assaulted Mr Demirel and thereby caused his death. However, he denies that he intended to kill or cause really serious injury to Mr Demirel, and he claims that he acted in self-defence.

At the close of the fourth day of the trial the defence foreshadowed that it would be seeking a limited direction as to good character evidence. The evidence it proposes to lead is as to Mr Demirel’s lack of prior convictions for offences involving violence. The Crown indicated that it would seek to lead evidence in rebuttal. The thrust of that evidence is that, on the night before the homicide, Mr Astbury was seen to ‘push’ his then partner, ‘with his hand to her shoulder’, causing her to ‘stagger back a bit’.

The defence object to this evidence and seek an advance ruling on its admissibility pursuant to s 192A of the Evidence Act 2008 (‘the Act’). The submissions proceeded by way of ss 55, 110, 135, 136 and 137 of the Act.

The disputed evidence

As I have said, the defence seeks a limited direction as to good character evidence, relating to the fact that Mr Astbury does not have any prior convictions for violent offending. Mr Astbury has a limited criminal history. He has been sentenced three times with respect to dishonesty offences in the early 1990s and on one occasion with respect to a minor drug offence for which he received a fine. He has not appeared or been convicted in relation to any offence since 2003.

The defence seeks a specific character direction from the Court. The direction is sought on the basis that the evidence is relevant to Mr Astbury’s credibility, and that the evidence was relevant to his likelihood of having committed the offence. The defence relies on the following evidence in support of the specific character direction:

(a) the…

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 Astbury (Ruling No 2)

Details

AGLC: R v Astbury (Ruling No 2) [2018] VSC 592
Case: [2018] VSC 592
Decision Date: 8 October 2018

CaseChat Overview and Summary

The case of R v Astbury (Ruling No 2) involved the accused, Astbury, facing charges of murder. The dispute centred on the admissibility of character evidence, specifically whether the Crown could present evidence that Astbury had pushed his partner the night before the homicide. The court was required to determine whether this evidence was relevant and whether its probative value outweighed any potential prejudice to the accused. The matter was heard in the Supreme Court of Victoria.

The primary legal issue was the interpretation and application of the Evidence Act 2008 provisions, specifically sections 55, 110, 135, 136, and 137. The court had to assess whether the evidence regarding the prior incident between Astbury and his partner was relevant to the charge of murder and whether its probative value outweighed the risk of unfair prejudice. The court also considered whether the Crown’s evidence in rebuttal was permissible under the Act.

The court found that the evidence of Astbury pushing his partner the night before the homicide was relevant as it bore on the issue of Astbury's propensity to commit violent acts, which was pertinent to the murder charge. However, the court also recognised the potential for unfair prejudice, particularly given the close temporal proximity to the homicide. The court balanced these considerations under the Evidence Act 2008, ultimately determining that the probative value of the evidence did not significantly outweigh the danger of unfair prejudice. Consequently, the Crown's evidence was deemed inadmissible.

The court’s ruling concluded that the Crown could not present the evidence of Astbury pushing his partner as it did not meet the criteria for admissibility under the Evidence Act 2008. This decision underscored the importance of balancing the relevance of character evidence with the risk of unfair prejudice in criminal trials.

Orders