R v Baxter (Ruling No. 2)

[2009] VSC 4

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IN THE SUPREME COURT OF VICTORIA Not restricted

AT MELBOURNE
CRIMINAL DIVISION

No. 1542 of 2007

ROBERT GORDON BAXTER	Applicant
v
THE QUEEN	Respondent

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING	15 January 2009
DATE OF JUDGMENT	15 January 2009
CASE MAY BE CITED AS:	R v Baxter (Ruling No. 2)
MEDIUM NEUTRAL CITATION:	[2009] VSC 4

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CRIMINAL LAW PROCEDURE: Murder — Mental Impairment — Extension of time to comply with Court order — s 9, Crimes (Criminal Trials) Act 1999

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Gibson	Office of Public Prosecutions
For the accused	Mr John O’Sullivan	Victoria Legal Aid

HIS HONOUR:

1. On 23 December 2008, the Court ordered that Robert Baxter comply with s 9 of the Crimes (Criminal Trials) Act 1999 in respect of the evidence of Professor Graham Burrows, a psychiatrist he wishes to call as a witness in his trial to support a defence of mental impairment. 

1. Today, an application has been made to relieve Baxter from compliance with that order on the ground that, for various reasons, Professor Burrows has not provided a report and, by reason of him now being overseas, will be unable to do so until his return on 7 February.

1. This trial must go on.  It is two and a half years since the deceased died and it is important that it go on, particularly having regard to the fact that at least one of the witnesses is a minor — one of the children of the deceased and Baxter.  She is undoubtedly suffering considerable stress from having to continue to contemplate the ordeal of describing the events surrounding her mother’s death.

1. The Crown shares the Court’s concern as to the necessity for the trial to proceed, as planned, on 2 February. Accordingly, the Crown is prepared to compromise its right to insist on timely compliance by Baxter with his statutory obligation by accepting Professor Burrow’s report and the other material required by s 9 of the Crimes (Criminal Trials) Act 1999 as soon as it can be provided, even if this is after the trial has commenced.  The Crown properly reserves its right to seek any ameliorating procedural order should that report require more consideration than can be given to it in the ordinary running of the trial.

1. In the circumstances, the Court requires the solicitors for Baxter to use their best endeavours to confer with Professor Burrows at the earliest possible opportunity upon his arrival back in Australia in order to take a proof from him. That proof, together with the other material required by s 9 must be served on the Crown at the earliest possible opportunity thereafter. To illustrate what is meant by that, the Court expects that, as soon as possible, the solicitors for Baxter will arrange an appointment to confer with Professor Burrows, and that that appointment will be as soon as reasonably possible after he arrives in Melbourne. They must also impress upon Professor Burrows the importance of his evidence to their client’s case and of his cooperating to produce the necessary proof. That proof must be signed by Professor Burrows before he gives evidence.