JUDGE:	Taylor J
WHERE HELD:	Melbourne
DATES OF HEARING:	9 and 10 December 2020
DATE OF RULING:	18 June 2021
CASE MAY BE CITED AS:	R v Basham (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2021] VSC 349

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CRIMINAL LAW – Accused charged with murder - Deceased was the estranged wife of the accused – Accused charged with three counts of rape of deceased – Rape charges listed for contested committal hearing at time of deceased’s death - Evidence of rape comprised largely of hearsay representations made by deceased in sworn police statements – All charges appear on single indictment.

CRIMINAL LAW – Whether murder charge should be tried separately from rape charges – Whether accused prejudiced by joinder of charges – Whether evidence of all charges is cross-admissible – Application for severance refused – Criminal Procedure Act 2009 (Vic) ss 3(1) and 193 and Rule 5 of Schedule 1.

EVIDENCE – Hearsay evidence – Relationship evidence - Prosecution filed three hearsay notices comprising hearsay representations by the deceased as to her relationship with the accused – Whether relationship evidence probative of the circumstantial case – Whether hearsay representations satisfy any exception to the hearsay rule – Whether relationship evidence should be excluded due to prejudicial effect – Evidence Act 2008 (Vic) ss 55(1), 56, 59, 65(2)(b), 65(2)(c), 66A, 67 and 137 – Jury Directions Act 2015 (Vic) s 26.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms N Rogers SC with Mr L Cameron	Office of Public Prosecutions
For the Accused	Mr A Lewis with Mr S Norton	Stary Norton Halphen Lawyers

HER HONOUR:

Adrian Basham is charged with the murder of his wife, Samantha Joy Fraser, on 23 July 2018. He is also charged with three counts of rape of Ms Fraser in respect of incidents alleged to have occurred in 2014 and 2016.

All four counts appear on a single indictment.

Three separate, but related pre-trial issues arise in this context.

The first is severance. The accused concedes that the joinder of the charges is permitted by the Criminal Procedure Act 2009 (‘CPA’),[1] but argues pursuant to s 193(1) of the CPA that the Court should order that the murder charge be tried separately from the rape charges.
[1]CPA, Rule 5 of Schedule 1 and definition of ‘related offences’ in s 3(1).

The second is the admissibility of ‘relationship evidence’[2] and ‘context evidence’[3] upon which the Crown seeks to rely as demonstrating a pattern of controlling and aggressive behaviour by the accused towards the deceased from which relevant, logical and reasonable inferences as to all four charges may be drawn.
[2]Jury Directions Act 2015 (‘JDA’), s 26(c).
[3]JDA, s 26(d).

The third is the admissibility of hearsay representations made by the deceased to a number of witnesses. The relationship and context evidence is largely comprised of such…

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 Basham (Ruling No 1)

Details

AGLC: R v Basham (Ruling No 1) [2021] VSC 349
Case: [2021] VSC 349
Decision Date: 18 June 2021

CaseChat Overview and Summary

The case of R v Basham involved the defendant who was charged with the murder of his estranged wife and three counts of rape. The deceased had made sworn police statements alleging rape, and these charges were listed for a contested committal hearing at the time of her death. The murder charge and the rape charges were consolidated on a single indictment. The defendant sought a severance of the murder charge from the rape charges, arguing that the joinder would prejudice his right to a fair trial. The court had to determine whether the charges should be tried separately and whether the evidence of the rape charges was cross-admissible in the trial of the murder charge.

The legal issues before the court included whether the joinder of the murder and rape charges would unfairly prejudice the defendant, whether the evidence of the rape charges was cross-admissible in the murder trial, and whether the hearsay evidence of the deceased's relationship with the defendant was admissible and probative. The court had to consider the provisions of the Criminal Procedure Act 2009 (Vic) and the Evidence Act 2008 (Vic), as well as the principles concerning the admissibility of hearsay and the prejudicial effect of evidence. The prosecution had filed three hearsay notices concerning the deceased's relationship with the defendant, and the court needed to determine if these statements satisfied any exceptions to the hearsay rule and whether they should be excluded due to their prejudicial effect.

The court found that the joinder of the charges did not unfairly prejudice the defendant, and the evidence of the rape charges was cross-admissible in the trial of the murder charge. The court also determined that the hearsay evidence of the deceased's relationship with the defendant was admissible and probative. The court found that the hearsay representations made by the deceased in her sworn police statements were relevant to the circumstantial case and satisfied the exceptions to the hearsay rule under the Evidence Act 2008 (Vic). The court held that the probative value of the relationship evidence outweighed any prejudicial effect, and therefore, the evidence should not be excluded. The application for severance was refused, and the charges were consolidated for trial.

The final orders of the court were that the murder and rape charges would be tried together, and the hearsay evidence of the deceased's relationship with the defendant would be admitted as evidence in the trial. The court determined that the joinder of the charges did not unfairly prejudice the defendant and that the cross-admissibility of the evidence was appropriate in the circumstances of the case. The court's decision ensured that the defendant would have a fair trial while also allowing the prosecution to present a complete case to the jury.

Orders