R v Basham (Ruling No 3) - [2022] VSC 109

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:	18 February 2022
DATE OF RULING:	7 March 2022
CASE MAY BE CITED AS:	R v Basham (Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2022] VSC 109

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CRIMINAL LAW - Accused charged with murder – Deceased was the estranged wife of the accused – Accused charged with rape of deceased and facing committal hearing at time of death – Crown argue pending rape charges as motive to kill.

EVIDENCE – Accused made alleged admission to rape in joint counselling session – Whether it is reasonably open to find that the accused made the admission – Whether danger of unfair prejudice outweighs probative effect of the alleged admission – Evidence excluded – Evidence Act 2008 (Vic), ss 81, 88, 137.

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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 on 23 July 2018.[1]
[1]The Crown allegations are summarised elsewhere and are not here repeated.

The jury will hear evidence of the relationship between the accused and deceased, both at the time of her death and in the years prior. They first separated in about January 2017, there was then a brief reconciliation before they separated again (and permanently) at Easter 2017.

Subsequent to that separation the deceased obtained a Family Violence Intervention Order (‘FVIO’) to which the accused was the respondent. She also swore two police statements in July 2017 that detailed allegations of rape during the marriage. The accused was charged with rape in August 2017. He was facing a contested committal hearing with respect to those charges on 30 July 2018.

The jury will hear of the fact of the rape charges and the committal date. By agreement between the Crown and defence, the jury will also hear a description of the conduct of each of the three rape charges as well as the fact that the deceased spoke to others – family members, friends, police and health professionals - about rape in the marriage and the dates on which she did so.

The Crown seeks to lead evidence from Terence Melvin of an alleged admission by the accused to ‘the first rape’ made during a counselling session on 21 April 2017. It is contended that the admission is of high probative value as it increases the strength of the accused’s motive to kill the deceased a week prior to the committal hearing.

The defence objects to the admission of the evidence on four bases. First, that it is not relevant. Second, that if relevant it does not fall within the exception to the hearsay rule in s 81 of the Evidence Act 2008 (Vic) (‘EA’).…

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 3)

Details

AGLC: R v Basham (Ruling No 3) [2022] VSC 109
Case: [2022] VSC 109
Decision Date: 7 March 2022

CaseChat Overview and Summary

In the case of R v Basham, the accused was charged with the murder of his estranged wife. The Crown argued that the pending rape charges against the accused provided a motive for the killing. The accused was facing a committal hearing for the rape charges at the time of the deceased's death. The trial took place in a Victorian court.

The primary legal issue before the court was whether the accused made an admission to the crime of rape during a joint counselling session, and if so, whether the probative value of this alleged admission outweighed the danger of unfair prejudice. The court had to determine whether the evidence was reasonably open to the conclusion that the accused made the admission and whether it should be excluded under the Evidence Act 2008 (Vic), sections 81, 88, and 137.

The court concluded that it was not reasonably open to find that the accused made the alleged admission to the crime of rape. Furthermore, the court found that the danger of unfair prejudice to the accused outweighed the probative effect of the alleged admission. Consequently, the evidence was excluded. The court's reasoning was based on the lack of clear and convincing evidence to support the alleged admission, and the potential for the evidence to unfairly prejudice the accused's right to a fair trial.

No final orders were made in this ruling, as it pertained to an interlocutory matter. The case continues, with the excluded evidence not being considered in the determination of the accused's guilt or innocence in relation to the murder charge.

Orders