R v Bufton (Ruling No 1) - [2019] VSC 232

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0283

THE QUEEN
v
JANICE JOY BUFTON	Accused

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 March 2019
DATE OF RULING:	11 April 2019 (Revised 3 May 2019)
CASE MAY BE CITED AS:	R v Bufton (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2019] VSC 232

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CRIMINAL LAW – Murder – Evidence – Hearsay evidence – Maker of representations not available – Whether evidence admissible pursuant to exception to hearsay rule – Whether evidence should be excluded due to danger of unfair prejudice – Evidence admissible – Evidence Act 2008 s 65(2)(b), (c), ss 135, 137.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr K Armstrong	Mr J Cain, Office of Public Prosecutions
For the Accused	Mr T Danos	Irwin & Irwin Law

HIS HONOUR:

Introduction

The accused faces a charge of having murdered her former partner by deliberately running him over with a motor car on the driveway of her property in country Victoria. Benjamin Weston (‘Weston’), an eye witness to the event, made a statement to the police on the day of the event as to his observations of the fatal incident and related matters. The account provided by the witness was damaging to the claim made by the accused that the collision was accidental. The day after making the statement, the witness took part in a video-recorded walk-through and interview (‘the walk-through’) with police at the scene of the alleged crime.

Weston is now deceased. Weston died on 8 October 2018, before the committal hearing was held in this case. Therefore, the defence had no opportunity to test the evidence of Weston in court.

The prosecution filed and served a hearsay notice pursuant to section 67 of the Evidence Act 2008 (‘the Act) in respect of the evidence of the witness. The notice specified section 65(2)(b) and (c) as the relevant exceptions to the hearsay rule upon which the prosecution intended to rely.

The accused seeks the exclusion of the entirety of the statement and walk-through of Weston. The defence outline challenged the contention that the representations in question come within the requirements of the exceptions relied on, and in the alternative relied on sections 135 and 137 of the Act as warranting exclusion of the representations.

Facts

The accused is charged with the murder of Colin Snooks (‘Snooks’) on Monday 30 October 2017.

Snooks met the accused in 2008 while they were both working for a community project in Stawell. Snooks separated from his wife in January 2016, and went to live with the accused at her property at 221 Fyans Road in Fyans Creek shortly afterwards. He took with him a caravan in which he had previously travelled around Australia with his wife. The accused’s property was a rural property with a long driveway leading to her home.

A sometimes volatile relationship developed between Snooks and the accused during 2016. There were periods of separation and a…

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 Bufton (Ruling No 1)

Details

AGLC: R v Bufton (Ruling No 1) [2019] VSC 232
Case: [2019] VSC 232
Decision Date: 11 April 2019 (Revised 3 May 2019)

CaseChat Overview and Summary

The defendant, Bufton, was charged with murder and stood trial in the Supreme Court of Victoria. The case hinged on the admissibility of certain hearsay evidence, which was critical to the prosecution's case. The deceased's statements made to a third party were at issue, as the third party was unavailable to testify. The court had to determine whether these statements could be admitted under the exceptions to the hearsay rule and whether their admission would unfairly prejudice the defendant.

The primary legal issue was whether the hearsay evidence was admissible under the exceptions provided in the Evidence Act 2008. Specifically, the court examined sections 65(2)(b) and (c) which deal with the availability of declarants and the exception for statements of recent fabrication. Additionally, the court considered whether the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, pursuant to sections 135 and 137. The defendant argued that the hearsay evidence should be excluded due to the risk of unfair prejudice, while the prosecution contended that the evidence was necessary to establish the elements of the offence.

The court found that the hearsay evidence was admissible under section 65(2)(b) of the Evidence Act 2008, as it fell within the exception for statements of recent fabrication, and the declarant was unavailable. The court determined that the probative value of the evidence substantially outweighed any potential for unfair prejudice to the defendant. The court considered the context in which the statements were made, the reliability of the third party, and the importance of the evidence to the prosecution's case. The court concluded that the evidence was crucial in establishing the defendant's intent and thus should be admitted.

The final orders of the court were that the hearsay evidence was admissible and could be considered by the jury in determining the defendant's guilt. The trial proceeded with the evidence, and the jury was instructed on the appropriate weight to give to the hearsay statements. The defendant was ultimately convicted of murder.

Orders