JUDGE:	Redlich J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 February 2004 to 19 February 2004
DATE OF RULING:	17 February 2004
CASE MAY BE CITED AS:	R v Besim
MEDIUM NEUTRAL CITATION:	[2004] VSC 168

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RULING No. 1

Deceased's propensity for violence – Self-defence – Relevance to facts in issue – Whether similarity between acts of past violence by deceased and deceased's conduct at time of alleged offence necessary – Whether discretion exists to exclude probative exculpatory evidence on ground of prejudice to Crown.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B. Kayser	Ms K. Robertson, Solicitor for Public Prosecutions
For the Accused	Mr T. Forrest Q.C. with Mr D. Collins	Grubissa White

HIS HONOUR:

The accused, Jennifer Besim, who is presented on a count of manslaughter by unlawful and dangerous act struck her husband, David Besim, on the head with a heavy vase fracturing his skull. The accused denies that her conduct was unlawful. The defence case is that she acted in self-defence in response to violence, and a threat of further violence from the deceased.

Mr Forrest Q.C. with Mr Collins who appears for the accused has foreshadowed that he proposes to call evidence from the first wife of the deceased to the effect that the deceased had been violent to her during their marriage. The learned prosecutor initially objected to such evidence being admitted on the ground that it was irrelevant and subsequently submitted that I should exercise a power to exclude it on the basis that its prejudice to the deceased's character and the Crown case exceeded its probative value.

The evidence is said by the defence to be relevant on three discrete bases. First, it is submitted that it is relevant to the state of mind of the accused at the time that she responded to what the defence contends was a threat of further violence by the deceased towards the accused and her children. The accused in her Record of Interview stated that she believed that the deceased had been violent towards his previous wife. The accused did not, in her evidence refer to this.

Secondly, the defence relies upon such evidence as bearing upon the reasonableness of the accused's act.

Thirdly, such evidence is said to make it more probable that the deceased acted in the violent manner described by the accused. In particular, the defence relies upon the fact that the deceased's former wife will testify that the deceased became more violent when she threatened to call the police.

The evidence called in this trial, if accepted, is that the accused's act followed soon after her stated intention to call the police and the deceased's response that he would not permit it. The deceased's first wife will testify that the deceased had become violent when she threatened to call the police. The extent of any similarity between the…

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 Besim

Details

AGLC: R v Besim [2004] VSC 168
Case: [2004] VSC 168
Decision Date: 17 February 2004

CaseChat Overview and Summary

The matter of R v Besim came before the court where the defendant was charged with the murder of the deceased. The defendant argued that he acted in self-defence against the deceased, who had a history of violent behaviour. The court was tasked with determining whether the deceased's past propensity for violence was relevant to the facts of the case, specifically whether there needed to be a similarity between past acts of violence and the conduct in question at the time of the alleged offence. Additionally, the court had to consider if there was any discretion to exclude probative exculpatory evidence on the grounds that it might prejudice the Crown's case.

The central legal issues were the admissibility of evidence concerning the deceased's past violent conduct and whether such evidence could be excluded if it potentially prejudiced the Crown. The court had to assess the relevance and probative value of the deceased's history of violence to the question of self-defence and whether there was a need for similarity between the past acts and the circumstances of the offence. Furthermore, the court needed to determine if there was any judicial discretion to exclude evidence that, while exculpatory for the defendant, might harm the Crown's case.

The court ruled that evidence of the deceased's past propensity for violence was relevant and could be considered in determining the defendant's claim of self-defence. The court found that while similarity between the past acts and the circumstances of the offence could be a factor, it was not strictly necessary. The court also acknowledged the discretion to exclude probative exculpatory evidence if it was deemed to unduly prejudice the Crown. However, in this case, the probative value of the evidence outweighed any potential prejudice, and thus it was admitted.

The court ordered that the evidence of the deceased's past violent conduct be admitted as it was relevant to the issues of self-defence and the circumstances of the alleged offence. The trial would proceed with this evidence, ensuring that the jury could consider the full context of the events leading up to the deceased's death.

Orders