R v Bond (Ruling No 15)
[2012] VSC 119
•2 April 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0042 of 2011
| THE QUEEN |
| v |
| SHANE BOND |
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JUDGE: | T FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 March 2012 | |
DATE OF RULING: | 2 April 2012 | |
CASE MAY BE CITED AS: | R v Bond (Ruling No 15) | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 119 | |
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CRIMINAL LAW – No case to answer application - Murder – R v Cengiz [1998] 3 VR 720 applied – Whether the jury could rationally exclude the innocent manslaughter hypothesis – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Geoffrey Horgan SC Kieran Gilligan | Office of Public Prosecutions |
| For the Accused | Michael O’Connell SC George Georgiou | Robert Stary Lawyers |
HIS HONOUR:
Mr O’Connell SC submits that there is no case to answer on the charge of murder. He concedes that the jury could be satisfied of three of the four elements of that charge but submits that the jury could not be satisfied that at the time the accused carried out the act or acts that caused death his intention was to kill or cause really serious injury. In other words, he submits that the jury could not be satisfied beyond reasonable doubt that the accused had a murderous intention at the relevant time.
The Crown case is comprised of a combination of direct and circumstantial evidence. Most of the direct evidence is by way of admissions said to be made by the accused to other people in a social setting. There is no direct evidence as to the accused’s mental state, and if it is to be proven, it will be by inference.
The principles that I must apply when considering a no-case submission are these:
(a)Taking the evidence at its highest for the prosecution could the jury lawfully find the accused guilty on the basis of a murderous intention? The question is not whether the jury should or might draw that inference but whether it could.[1]
(b)Even if the prosecution case is tenuous or weak it should be left to the jury.[2] Thus, this type of submission is directed at a sufficiency of evidence rather than at its quality.
(c)A judge should not take a case from a jury simply on the basis that he considers that at the close of the prosecution case the prosecution has failed to exclude an hypothesis consistent with innocence.[3]
(d)A judge may only take a case from a jury if on the evidence there remains open an inference consistent with innocence which could not rationally be excluded by the jury.[4]
[1]May v O’Sullivan (1955) 92 CLR 654.
[2]R v Doney (1990) 171 CLR 207.
[3]Attorney-General Reference (No 1 of 1983) [1983] 2 VR 410 (‘Attorney-General’s Reference (No 1)’).
[4]R v Cengiz [1998] 3 VR 720 (‘Cengiz’).
For my part, I have difficulty reconciling (c) and (d) above. If a judge concludes that there is a residual hypothesis consistent with innocence that the prosecution have failed to exclude he may not take the case away, but if he concludes there remains open an innocent hypothesis which cannot rationally be excluded by the jury he may take the case away. It is not my function to resolve what I perceive to be tension between Attorney-General’s Reference (No 1) and the later decision of Cengiz. I shall apply the test as expressed in the later decision. Thus, on the no-case submission to murder, I consider that the test is this – could the jury rationally exclude the innocent manslaughter hypothesis?
I consider that it would be open to the jury to make the following findings of fact that are relevant to their assessment of the accused’s mental state on the charge of murder:
(i)that the accused had a romantic interest in Ms Membrey;[5]
[5]Evidence of Richelle Ketteridge T212.
(ii)that it was unreciprocated;[6]
[6]Evidence of Richelle Ketteridge T212.
(iii)that he persisted to the extent that Ms Membrey sought counsel from a friend, Ms Ketteridge;[7]
[7]Evidence of Richelle Ketteridge T212.
(iv)that he argued with Ms Membrey at the Ringwood Aquatic Centre at about lunchtime. The argument was very heated and Mr Bond was extremely angry;[8]
[8]Evidence of Warren Gartner T404-T406; Evidence of Dr Rodney Sim.
(v)the argument either persisted or was renewed during the afternoon of 6 December. Again it seemed heated;[9]
[9]Evidence of Janelle Albert T728; Evidence of Julie Aspling T501.
(vi)Ms Membrey worked at the Manhattan Hotel on the evening of 6 December 1994;[10]
[10]Exhibit J.
(vii)Mr Bond attended at the hotel on that evening and argued with Ms Membrey again;[11]
[11]Evidence of Peter Corigliano T2004.
(viii)Mr Bond went to Ms Membrey’s house either late that evening or early in the morning of 7 December;[12]
[12]Evidence of Daniel Riera T1251ff.
(ix)he argued with her again;[13]
(x)he made a pass or as he allegedly described ‘a move on her’;[14]
(xi)she hit him;[15]
(xii)he hit her, or bashed her;[16]
(xiii)the force occasioned in performing this act or these acts was sufficient to:
(a)kill Ms Membrey;
(b)cause there to be significant blood loss by Ms Membrey, both in the hallway outside her bedroom and to a lesser extent in her bedroom. Blood spattered the hallway walls on both sides and blood appeared to have been wiped from a bedroom wall and the western hallway wall. There was a significant amount of blood on the hallway carpet and smaller amounts on the bedroom carpet;[17]
(c)cause Ms Membrey to lose sufficient blood so as to cover Mr Bond in blood from head to foot.[18]
[13]Evidence of Daniel Riera T1251ff.
[14]Evidence of Daniel Riera T1251ff.
[15]Evidence of Daniel Riera T1251ff.
[16]Evidence of Daniel Riera T1251ff; Evidence of Kevin Kavanagh T1372, T1375.
[17]Evidence of Robert Huygen T940ff.
[18]Evidence of Geoffrey Jacobs T776, T781-T782.
I take the post-offence conduct to be relevant to the actus reus and not the mens rea and disregard it for present purposes.
If I am correct in my analysis, then I consider that is would be open to the jury to conclude that Mr Bond’s intention at the relevant time was at least to cause Ms Membrey really serious injury. In other words, I consider that the jury could rationally exclude the competing hypothesis that Mr Bond’s intention was to cause some harm but falling short of really serious injury.
It ought be understood that I am not saying that the jury would or should exclude the manslaughter hypothesis. I am saying no more than this: the jury, on one rational view of the evidence, could exclude the manslaughter hypothesis. It follows that I refuse the no case application.
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