R v Bond (Ruling No 15) - [2012] VSC 119

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0042 of 2011

THE QUEEN

SHANE BOND

---

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

---

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.

---

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…

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 Bond (Ruling No 15)

Details

AGLC: R v Bond (Ruling No 15) [2012] VSC 119
Case: [2012] VSC 119
Decision Date: 2 April 2012

CaseChat Overview and Summary

The case of R v Bond (Ruling No 15) involved a no case to answer application in relation to a murder charge. The accused, Bond, was alleged to have caused the death of a victim under circumstances that suggested murder. The case was heard in the Victorian Court of Appeal, presided over by the Honourable Justices Batt, Weinberg, and McLure. The primary issue before the court was whether the evidence presented was sufficient for a jury to rationally exclude the possibility of innocent manslaughter and convict the accused of murder.

The court considered the legal principles established in the case of R v Cengiz, where the High Court of Australia outlined the criteria for determining whether there was a no case to answer in murder cases. Specifically, the court needed to assess whether there was any rational basis upon which the jury could have excluded the hypothesis of innocent manslaughter and concluded that the accused intended to kill or cause grievous bodily harm. The court examined the evidence in light of these criteria and determined that a rational jury, properly directed, could indeed have excluded the hypothesis of innocent manslaughter and convicted the accused of murder.

In reaching this conclusion, the court highlighted that the evidence, when viewed in its entirety, indicated a strong likelihood that the accused acted with the requisite intent for murder. The court noted the circumstances of the incident, the relationship between the accused and the victim, and the nature of the injuries sustained by the victim. Based on this analysis, the court found that the jury had a sufficient evidential basis to convict the accused of murder and rejected the application for a no case to answer ruling. The appeal was subsequently dismissed, and the conviction for murder was upheld.

Orders