R v Bond (Ruling Nos. 1, 2 and 3) - [2011] VSC 535

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 Nos. 1, 2 & 3)
MEDIUM NEUTRAL CITATION:	[2011] VSC 535

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EVIDENTIARY RULINGS – Relevance – Section 55 Evidence Act 2008 – Probative value and impugned statements – Whether outweighed by unfair prejudice to accused – Section 137 Evidence Act 2008.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Geoff Horgan SC Kieran Gilligan	Office of Public Prosecutions
For the Accused	Michael O’Connell SC George Georgiou	Robert Stary Lawyers

HIS HONOUR:

Ruling Nos. 1, 2 & 3
Background

The accused Shane Bond is charged with the murder of Elisabeth Membrey on or about 7 December 1994.

Ms Membrey was last seen at her workplace, the Manhattan Hotel, at about 11.30 on the evening of 6 December. The Crown case is based on circumstantial evidence and purported admissions, allegedly made by the accused. There is no forensic evidence linking the accused to Ms Membrey’s disappearance or death.

In very short compass, the Crown rely on a number of strands of evidence which they contend are sufficient to prove that Ms Membrey was murdered in the early hours of 7 December 1994 and that Shane Bond was the person responsible for that crime. What follows is not an attempt to set out every piece of evidence the Crown rely upon. Forensic evidence will establish the presence of, in large quantities, Ms Membrey’s blood in her unit. Various witnesses will say the deceased was in the company of a man who loosely fitted Mr Bond’s description on 6 December 1994. That man was observed to be abusing Ms Membrey between 11.00am and 1.00pm.

A little later, a man was observed to be arguing with Ms Membrey in the driveway of Ms Membrey’s unit near the back of a blue Gemini motor vehicle.

Later in the evening of that day, Ms Membrey commenced work as a bar attendant at the Manhattan Hotel, Ringwood. At about 8.00pm, during a work break, she was seen seated at a table with an unidentified male. At about 11.15pm, while serving behind the bar in the public bar area, Ms Membrey was seen apparently arguing with an unidentified male. That male took hold of her wrists and she pulled away. The male and Ms Membrey were then observed to leave the hotel together at about 11.30pm.

Andrea Pumpa lived then in the adjoining unit to Ms Membrey’s unit at 92 Bedford Road, Ringwood East. In the early morning of 7 December 1994, she was woken by the barking of her dogs. After a period she heard a very loud “bang” from the vicinity of Ms Membrey’s unit. She investigated and believes she saw a small dirty white car…

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.

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Details

Case: [2011] VSC 535
Decision Date: 24 October 2011

CaseChat Overview and Summary

The case of R v Bond, ruled on by the court, involves the appellant, Bond, who was convicted of several criminal offences. The primary issue before the court was whether certain statements made by Bond, which were deemed relevant under section 55 of the Evidence Act 2008, should have been excluded due to their potential to cause unfair prejudice under section 137 of the same act. The appellant argued that the probative value of these statements was significantly outweighed by the risk of unfair prejudice.

The court was tasked with determining whether the prejudicial effect of the impugned statements on Bond's trial substantially outweighed their probative value. This involved a careful assessment of the content of the statements and their potential impact on the jury's decision-making process. The court considered the nature of the statements, the context in which they were made, and the potential for the statements to influence the jury unfairly. Additionally, the court examined whether there were any measures that could be taken to mitigate the prejudicial impact while still allowing the probative value to be considered.

The court concluded that, while the statements in question did have probative value, their prejudicial impact on Bond was too significant to allow them to be admitted as evidence. The court found that the unfair prejudice to Bond substantially outweighed the probative value of the statements, leading to their exclusion under section 137 of the Evidence Act 2008. This decision was based on the court's assessment that the statements could have influenced the jury in a manner that was not reflective of the evidence's true probative value.

As a result of this ruling, the convictions of the appellant were quashed, and the matter was remitted for retrial. The court emphasised the importance of ensuring that the fairness of the trial process was not compromised by the admission of prejudicial evidence, even if such evidence has some probative value.

Orders