R v Basham (Ruling No 2) - [2022] VSC 107

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2019 0229

THE QUEEN	Crown
v
ADRIAN JAMES BASHAM	Accused

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JUDGE:	Taylor J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 February 2022
DATE OF JUDGMENT:	7 March 2022
CASE MAY BE CITED AS:	R v Basham (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2022] VSC 107

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CRIMINAL LAW – Accused charged with murder – Deceased was the estranged wife of the accused – Deceased found hanged in the garage of the former matrimonial home – Deceased had obtained Family Violence Intervention Order against accused – Accused charged with rape of deceased and facing committal hearing at time of death – Central issue is whether the deceased was murdered or died by suicide.

EVIDENCE – Hearsay evidence – Relationship evidence – Crown 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 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) ss 26 and 27.

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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 Halphen with Ms A Beech	Slades & Parsons Criminal Lawyers

HER HONOUR:

The accused is charged with the murder of his estranged wife.[1]
[1]The Crown allegations are detailed extensively elsewhere and are not here repeated.

The deceased was last seen alive at a café at about 11.00am on 23 July 2018. CCTV footage from a neighbouring address shows her car returning to her home in Cowes at approximately 11.22am. A telephone call made to her mobile telephone at 11.36am went unanswered. She failed to attend an appointment in Wonthaggi at 12.00pm.

Just after 5.00pm on the same day, police found the deceased in the garage of her home hanged from a rope attached to the track of the automatic sectional garage door. The deceased’s vehicle was parked inside the garage. There was apparent blood staining to the rope and in the deceased’s hair. The deceased’s hair was unkempt, having come loose from a ponytail, and there was a clump of apparent hair attached to the rope some distance above her head. The deceased had bruising to her scalp and, upon later post-mortem examination, was found to have sustained a poorly developed focal traumatic axonal injury to the brain. The deceased had an injury to the fingernail on her left little finger. A three-step ladder tipped onto its side was located beside the deceased’s body.

The Crown case is that the accused murdered the deceased and attempted to make it look like suicide.

In the Defence Response to Summary of Prosecution Opening the accused admits to being present at the deceased’s home[2] on 23 July 2018 and doing so in breach of a Family Violence Intervention Order (‘FVIO’). He…

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 2)

Details

AGLC: R v Basham (Ruling No 2) [2022] VSC 107
Case: [2022] VSC 107
Decision Date: 7 March 2022

CaseChat Overview and Summary

The accused, Basham, was charged with the murder of his estranged wife, the deceased, who was found hanged in the garage of their former matrimonial home. The deceased had previously obtained a Family Violence Intervention Order against Basham, and he was facing a committal hearing for the charge of raping the deceased at the time of her death. The central issue before the court was whether the deceased had been murdered or had died by suicide. The court was required to decide on the admissibility of hearsay evidence concerning the relationship between Basham and the deceased, and whether such evidence was probative of the circumstances surrounding her death or would have an unduly prejudicial effect.

The court had to determine whether the hearsay evidence, which comprised representations made by the deceased about her relationship with Basham, was relevant and probative of the circumstances of her death. The court also had to consider the potential prejudicial effect of this evidence under the Evidence Act 2008 (Vic) and the Jury Directions Act 2015 (Vic). The court examined sections 55(1), 56, 59, 65(2)(b), 65(2)(c), 66A, 67, and 137 of the Evidence Act, as well as sections 26 and 27 of the Jury Directions Act, to assess the admissibility of the relationship evidence.

The court found that the hearsay evidence concerning the relationship between Basham and the deceased was relevant and probative of the circumstances of her death, and therefore admissible. The court held that the prejudicial effect of the evidence was not so significant as to exclude it. The court was satisfied that the probative value of the evidence outweighed any prejudicial effect it might have on the jury. The court's decision was based on a careful consideration of the statutory provisions and the principles of evidence law, and the court was satisfied that the evidence was admissible and could be considered by the jury in determining the circumstances of the deceased's death. The court ruled that the hearsay evidence was admissible and could be considered by the jury.

No further orders were made by the court in this ruling.

Orders