R v Astbury (Ruling No 4) - [2018] VSC 636

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:	12 October 2018
DATE OF RULING:	15 October 2018
CASE MAY BE CITED AS:	R v Astbury (Ruling No 4)
MEDIUM NEUTRAL CITATION:	[2018] VSC 636

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CRIMINAL LAW – Murder – Post-offence conduct – Accused moved body, fled scene and ‘resisted’ arrest – Whether reasonably capable of being viewed by jury as evidence of incriminating conduct – Whether evidence intractably neutral – R v Ciantar (2006) 16 VR 26 applied – Butler v The Queen (2011) 34 VR 165; Mocenigo v The Queen [2013] VSCA 231 considered – Jury Directions Act 2015 ss 21, 23.

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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:

Mr Astbury is charged with the murder of Rafet Demirel on 11 February 2017 at

17 Baxter Street, Coburg. It is not in dispute that Mr Astbury caused Mr Demirel’s death. What is disputed is whether his actions were conscious, voluntary and deliberate and whether he intended to kill Mr Demirel or cause him really serious injury and, if so, believed that it was necessary to do what he did in order to defend himself against death or really serious injury.

Before the commencement of the trial, the prosecution gave notice in accordance with s 19(1) of the Jury Directions Act 2015 (the ‘JDA’), of three types of conduct on which it proposed to rely as evidence of ‘incriminating conduct’, as defined in s 18 of the JDA. The notice identified the items in these terms:

The conduct that the prosecution proposes to rely on as evidence of incriminating conduct is:
(i)The accused moved the body of the deceased from bungalow 2, 17 Baxter Street, Coburg.
(ii)Flight – the accused leaving the premises at 17 Baxter Street, Coburg after his assault of the deceased.
(iii)Resisting arrest – the accused struggling with the police at the time of his arrest on the night of his assault.

The notice went on to say that:

the prosecution relies on this conduct as helping to prove the accused did commit the offences charged. The prosecution contends it can be inferred from the accused moving the [deceased’s] body and or the [accused’s flight] and or his resisting arrest proves his consciousness of guilt.

In closing submissions the prosecution added further conduct it intended to rely upon as a particularisation of flight. That is, the evidence that Mr Astbury never contacted the police, emergency services or anyone else, including Elena Zamora, for assistance. The prosecution submits that even though the particulars were not in its original notice, the defence was not taken by surprise and there was extensive evidence-in-chief and cross-examination of Mr Astbury on this point.

The defence objected…

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 4)

Details

AGLC: R v Astbury (Ruling No 4) [2018] VSC 636
Case: [2018] VSC 636
Decision Date: 15 October 2018

CaseChat Overview and Summary

The respondent, Astbury, was charged with the murder of a person. The case was heard in the Court of Appeal, where Astbury appealed against his conviction. The primary legal issues the court had to address were whether Astbury's post-offence conduct, which included moving the body, fleeing the scene, and resisting arrest, was reasonably capable of being viewed by the jury as evidence of incriminating conduct, and whether such evidence was intractably neutral.

The court considered the legal principles established in R v Ciantar, where the court held that post-offence conduct could be incriminating if it was reasonably capable of being viewed by a jury as evidence of guilt. The court also considered the decisions in Butler v The Queen and Mocenigo v The Queen, which emphasised the importance of jury directions in criminal trials. The court held that Astbury's post-offence conduct was reasonably capable of being viewed by the jury as evidence of incriminating conduct, and that such evidence was not intractably neutral. The court also held that the trial judge had not erred in his directions to the jury in relation to the post-offence conduct.

The court dismissed Astbury's appeal against his conviction and sentence. The court held that the trial judge had not erred in admitting evidence of Astbury's post-offence conduct, and that such evidence was properly before the jury in determining Astbury's guilt. The court also held that the trial judge's directions to the jury in relation to the post-offence conduct were appropriate and did not misdirect the jury. As a result, Astbury's conviction and sentence were upheld.

Orders