R v Borg (Ruling No 2) - [2012] VSC 32

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 99 of 2011

THE QUEEN

LEONARD BORG

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATES OF HEARING:	24 and 25 January 2012
DATE OF RULING:	8 February 2012
CASE MAY BE CITED AS:	R v Borg (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2012] VSC 32

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CRIMINAL LAW – Pre-trial ruling – Admissibility of evidence concerning premises at 1 Rosanna Court, Craigieburn – Evidentiary foundation for accused’s alleged belief – Admissibility of relationship evidence – Sections 55 & 56 of the Evidence Act 2008 – R v Anderson (2000) 1 VR 1 at 13 – Washer v Western Australia (2007) 234 CLR 492 at 498

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr Mark Gibson Ms Raelene Sharp	Office of Public Prosecutions
For the Accused	Ms Carmen Randazzo SC Ms Samantha Poulter	Theo Magazis & Associates

HIS HONOUR:

Leonard Borg is charged with the murder of Peter Rule. The Crown case is that the accused murdered Rule on 15 November 2009 at Campbellfield. The accused has been arraigned and pleaded not guilty and counsel for the defence has indicated that the accused will deny any involvement in the death of the deceased.

A summary of the factual basis of the Crown case against the accused is set out in DPP v Borg (Ruling No. 1).[1]
[1][2012] VSC 26R.

This ruling is concerned with two related issues. First, objection has been taken to evidence being led concerning premises at 1 Rosanna Court, Craigieburn at which it was alleged that the accused was growing a hydroponic cannabis crop. The Crown has submitted that the accused believed that the deceased informed the police about this crop. This evidence is therefore said to be relevant to the issue of motive.

Secondly, the Crown propose to lead certain evidence as part of their case which, according to the Crown’s written opening which has been filed, is evidence of the relationship between the accused and the deceased. The purpose of that evidence is to establish, among other things, that there was hostility between the accused and the deceased, including over the cannabis crop to which I have just referred.

The Premises at 1 Rosanna Court Craigieburn

Dale Orr, the partner of the accused man’s sister, owned residential premises at 1 Rosanna Court, Craigieburn. Borg is said to have lived there until early 2009. The witness, Daniel Harris, owned the premises immediately prior to Orr and went there occasionally to collect mail. He said in a statement to police that he had been told by Borg that Borg was using the premises to grow cannabis. On one occasion, Harris went there and saw that that was the case. He told police that he saw a hydroponic crop upstairs on the 2^nd level with about 20 plants. He said he did not speak to Borg about what he had seen and did not want to be involved.

In March 2009,…

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 Borg (Ruling No 2)

Details

AGLC: R v Borg (Ruling No 2) [2012] VSC 32
Case: [2012] VSC 32
Decision Date: 8 February 2012

CaseChat Overview and Summary

The defendant, Borg, was before the court on a pre-trial ruling concerning the admissibility of certain evidence. The nature of the dispute was whether evidence about premises located at 1 Rosanna Court, Craigieburn, could be presented in court, and if there was an adequate evidentiary foundation for the defendant’s alleged belief regarding the premises. Furthermore, the admissibility of evidence about the defendant’s relationship with a certain individual was also in question.

The court had to determine whether the evidence about the premises at 1 Rosanna Court, Craigieburn, and the defendant's alleged belief could be admitted under the provisions of sections 55 and 56 of the Evidence Act 2008. Additionally, the court had to decide whether the relationship evidence was relevant and could be admitted under the same legal framework. The court referenced the principles established in R v Anderson (2000) 1 VR 1 at 13 and Washer v Western Australia (2007) 234 CLR 492 at 498 to aid in its decision-making process.

After careful consideration, the court found that the evidence regarding the premises and the defendant’s alleged belief did not meet the evidentiary threshold required for admissibility. The court ruled that the evidence did not sufficiently establish the foundation necessary for the defendant's belief to be considered relevant. In relation to the relationship evidence, the court determined that it did not contribute significantly to proving any material fact in issue and thus, was also inadmissible. The court's decision was grounded in the principles of relevance and probative value as outlined in the cited cases.

The final orders of the court were that the evidence concerning the premises at 1 Rosanna Court, Craigieburn, and the defendant's alleged belief were not admissible. Furthermore, the evidence about the defendant’s relationship was also deemed inadmissible. These rulings would impact the evidence that could be presented in the main trial, potentially affecting the prosecution’s case.

Orders