R v Bond (Ruling No 4) - [2011] VSC 536

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0042 of 2011

THE QUEEN

SHANE BOND

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	3, 4, 5, 6, 7, 10, 11, 12, 14 and 17 October 2011
DATE OF RULING:	24 October 2011
CASE MAY BE CITED AS:	R v Bond (Ruling No. 4)
MEDIUM NEUTRAL CITATION:	[2011] VSC 536

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HEARSAY RULE – Section 59 Evidence Act 2008 – Exceptions to the hearsay rule – s 65(2)(b), s 65(2)(c) and s 66A of the Evidence Act 2008.

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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:

I have set out the background facts alleged against the accused in Ruling Nos. 1, 2 & 3.[1] The prosecution have served a hearsay notice in which they express an intention to adduce evidence from a Ms Ketteridge about a conversation she says she had with the deceased, Elisabeth Membrey, on 30 November 1994. This conversation is alleged to have occurred in the public bar area of the Manhattan Hotel. Ms Membrey was working as a bar attendant and Ms Ketteridge was a patron at the hotel.
[1]R v Bond (Ruling Nos. 1, 2 & 3) [2011] VSC 535

The conversation is expressed in different ways by Ms Ketteridge but its substance is as follows.

·Ms Membrey complained of being ‘hassled’ by a man.
·Ms Membrey said that man was Shane Bond.
·Ms Membrey said that Mr Bond wanted to go out with her and would not take no for an answer.
·Ms Membrey said that she had told Mr Bond that she already had a boyfriend, but that did not worry him.
·Ms Membrey asked Ms Ketteridge for advice as to what she should do about Shane Bond.
·Ms Ketteridge said to Ms Membrey that she should just tell him to ‘fuck off’.

It is common ground that this evidence, if admitted, is relevant. It is evidence that, before Ms Membrey’s disappearance, the accused had a romantic interest in her which was not reciprocated.

It is also common ground that the evidence sought to be adduced is primary hearsay and thus amenable to the operation of Part 3.2 of the Evidence Act 2008 (Vic) (“the Act”). The hearsay rule set out at s 59 of the Act prohibits the use of a previous representation to prove facts that the maker of the representation intended to assert by that representation (‘the asserted fact’), subject to the various statutory exceptions contained within Division 1 of Part 3.2 of the Act.

The asserted fact sought to be proved by the prosecution is that Mr Bond ‘hassled’ Ms Membrey. In fact this involves proving a number of asserted facts from the previous representations, namely:

(a)that a man invited Ms Membrey to go out;
(b)that she rejected his invitation;
(c)that he persisted with his invitation in 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 Bond (Ruling No 4)

Details

AGLC: R v Bond (Ruling No 4) [2011] VSC 536
Case: [2011] VSC 536
Decision Date: 24 October 2011

CaseChat Overview and Summary

In the case of R v Bond, the respondent faced criminal charges in the Supreme Court of Victoria, and the nature of the dispute involved the admissibility of certain hearsay evidence under the Evidence Act 2008. The respondent was accused of serious criminal offences, and the prosecution sought to rely on hearsay statements made by witnesses who were unable to attend the trial. The court was tasked with determining whether the hearsay evidence met the criteria for admissibility under the exceptions outlined in sections 59, 65(2)(b), 65(2)(c), and 66A of the Evidence Act 2008.

The primary legal issues that the court needed to address were whether the hearsay evidence was admissible under the specified exceptions and whether the probative value of the evidence outweighed any prejudicial effect. The court had to consider whether the hearsay statements were made under circumstances that gave them a high degree of reliability, whether they were relevant to an issue in the proceedings, and whether admitting them would be unfair to the respondent. The court also needed to evaluate the impact of the evidence on the fairness of the proceedings and whether the probative value of the statements justified their admission.

The court carefully examined the provisions of the Evidence Act 2008 and assessed the circumstances under which the hearsay statements were made. The court found that the statements met the criteria for admissibility under section 65(2)(b) because they were made under circumstances that gave them a high degree of reliability. The court also determined that the statements were relevant to an issue in the proceedings and that admitting them would not be unfair to the respondent. Furthermore, the court concluded that the probative value of the hearsay evidence outweighed any prejudicial effect, and thus, the statements were admissible. The court ruled that the hearsay evidence could be considered in determining the guilt or innocence of the respondent.

As a result of the court's decision, the hearsay evidence was admitted, and the trial proceeded with this evidence taken into account. The court's ruling on the admissibility of the hearsay statements played a crucial role in the proceedings, as it allowed the jury to consider relevant information that might not have been available otherwise. The court's decision balanced the need to ensure a fair trial with the importance of allowing all relevant evidence to be presented to the jury.

Orders