R v Basham (Ruling No 4) - [2022] VSC 108

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 RULING:	7 March 2022
CASE MAY BE CITED AS:	R v Basham (Ruling No 4)
MEDIUM NEUTRAL CITATION:	[2022] VSC 108

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CRIMINAL LAW – Evidence – Accused charged with murder – Deceased was the estranged wife of the accused – Deceased found hanged in the garage of the former matrimonial home.

EVIDENCE – Incriminating Conduct - Post-offence conduct – Prosecution seeks to rely on CCTV footage of the accused leaving the former matrimonial home – Prosecution seeks to rely on evidence of the accused asking witnesses not to cooperate with police – Whether reasonably capable of being viewed as evidence of incriminating conduct – Jury Directions Act 2015 (Vic) ss 18, 19, 20.

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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.

By document dated 8 September 2021 and pursuant to s 19(1) of the Jury Directions Act 2015 (Vic) (‘JDA’), the Crown has given notice of evidence of conduct that it proposes to rely on as evidence of incriminating conduct in the trial of the accused. That notice details some 12 items of evidence.

Two items are not pressed by the Crown. The defence does not object to the admissibility of six items and intends to make submissions as to the permissible use of that evidence at the conclusion of all of the evidence in the trial. It follows that this Ruling is limited to four items, [1] namely:
[1]This Ruling adopts the item numbers used in the Notice.

b. The accused was captured on CCTV footage running away from 19 Seagrove Way, north along the eastern footpath past 13 Seagrove Way at 12.04pm.

c. The accused was captured on CCTV footage wearing the two-toned blue hooded jacket with the hood up as he ran away from 19 Seagrove Way at 12.04pm.

d. The accused was captured on CCTV footage with his hands in the pockets of his jacket and appeared to have an item stuffed up the front of this jacket as he ran away from 19 Seagrove Way at 12.04pm.

k. At approximately 11.00am on 28 July 2018, the accused attended at Park Road, San Remo and approached the premises at 4 Park Road, San Remo. At this time, police investigators were taking written statements from two witnesses, Cameron Brown and Elizabeth Antonovich, at different addresses on Park Road. The accused separately approached both Brown and Antonovich in the presence of police investigators and told them not to cooperate with police.

The defence does not object to the admissibility of items b., c. and d. but, as the CCTV…

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 4)

Details

AGLC: R v Basham (Ruling No 4) [2022] VSC 108
Case: [2022] VSC 108
Decision Date: 7 March 2022

CaseChat Overview and Summary

The case of R v Basham (Ruling No 4) involved the accused, who stood charged with the murder of his estranged wife, found hanged in the garage of their former matrimonial home. The court was required to consider the admissibility of certain evidence, including CCTV footage of the accused leaving the scene and his requests to witnesses not to cooperate with police. The legal issues at hand revolved around whether these pieces of evidence were reasonably capable of being viewed as incriminating conduct under the Jury Directions Act 2015 (Vic). The court was tasked with determining if such evidence could be admitted to prove the accused's guilt or any fact in issue.

The court examined the relevance and probative value of the incriminating conduct in relation to the accused's guilt. It was necessary to assess if the evidence could be reasonably viewed as demonstrating an awareness of guilt or a consciousness of guilt, which are permissible grounds for incriminating conduct under the statute. The court took into account the context and circumstances in which the evidence was obtained, as well as the potential impact on the fairness of the trial. It was also necessary to consider whether the probative value of the evidence outweighed any prejudicial effect it might have on the jury.

In its reasoning, the court concluded that the CCTV footage and the accused's requests to witnesses were reasonably capable of being viewed as evidence of incriminating conduct. The court found that these actions could demonstrate an awareness of guilt or a consciousness of guilt, thus satisfying the criteria under the Jury Directions Act 2015 (Vic). The court determined that the probative value of this evidence was not outweighed by any prejudicial effect, and therefore, it should be admitted. The court's decision was grounded in the principles of ensuring a fair trial while allowing for the presentation of relevant evidence that could assist in determining the truth.

The final orders of the court were to admit the CCTV footage and the evidence of the accused's requests to witnesses as incriminating conduct, subject to the jury being properly directed on its limited admissibility and weight. The court provided specific directions to ensure that the jury understood the proper use and limitations of this evidence in their deliberations. This ruling ensured that the trial would proceed with all relevant evidence being considered, while maintaining the integrity and fairness of the judicial process.

Orders