R v Bufton (Ruling No 2) - [2019] VSC 264

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:	26 April 2019
DATE OF RULING:	26 April 2019
DATE OF REASONS	29 April 2019
CASE MAY BE CITED AS:	R v Bufton (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 264

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CRIMINAL LAW – Murder – Evidence – Interlocutory decision to admit evidence – Interlocutory appeal – Application for certification - Evidence if ruled inadmissible would eliminate or substantially weaken prosecution case – Decision not attended by sufficient doubt to warrant appeal – Appeal hopeless – Certification refused – Criminal Procedure Act 2009 s 295(3)(a).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr K Armstrong	Mr J Cain, Solicitor for 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, 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 day after making the statement, the witness took part in a video-recorded walk-through and interview 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.

The prosecution filed and served a hearsay notice pursuant to section 67 of the Evidence Act 2008 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 defence sought the exclusion of the evidence on the basis that the representations did not come within the exceptions to the hearsay rule relied on, and alternatively on the basis that the evidence should be excluded under section 135 or 137 of the Evidence Act.

On 11 April 2019, I ruled the evidence admissible.[1]
[1]R v Bufton [2019] VSC 232.

On 23 April 2019, the defence solicitors notified the Office of Public Prosecutions that the accused intended to launch an interlocutory appeal, and would seek certification by the Court pursuant to section 295(3) of the Criminal Procedure Act 2009 (‘the Act’).

The matter came on for hearing before me on 26 April 2019. Mr Danos, for the accused, made an application for certification. The application was opposed by the Crown, for whom Mr Armstrong appeared. Following a relatively brief hearing, I indicated that I would refuse to certify, for reasons which I would spell out in more detail at a later time. These are those reasons.

The law

Section 295(3) of the Act relevantly provides:

(3)A party may not seek leave to appeal unless the judge who made the interlocutory decision certifies –
(a)if 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 Bufton (Ruling No 2)

Details

AGLC: R v Bufton (Ruling No 2) [2019] VSC 264
Case: [2019] VSC 264
Decision Date: 26 April 2019

CaseChat Overview and Summary

The interlocutory decision in R v Bufton involved a significant dispute regarding the admissibility of certain evidence in a murder case. The matter was brought before the court as an interlocutory appeal against a decision to admit the contested evidence, which the defence argued should have been excluded. The case was before the court to determine whether the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution's case to the extent that it would render the appeal against conviction or sentence hopeless. The appellant, Bufton, sought certification to appeal the decision, arguing that the evidence in question was crucial to his defence.

The court was tasked with examining the potential impact of the inadmissible evidence on the prosecution's case. It needed to determine whether the exclusion of the evidence would indeed leave the prosecution's case so weakened that an appeal would be hopeless. The court considered the strength of the remaining evidence against the appellant and whether the contested evidence was integral to the prosecution's argument. The court also assessed the likelihood of the appeal succeeding if the evidence was deemed inadmissible, focusing on whether there was sufficient doubt about the outcome to warrant certification.

Upon reviewing the evidence and the arguments presented, the court found that the evidence, even if inadmissible, would not eliminate or substantially weaken the prosecution's case. The remaining evidence against the appellant was deemed strong enough to support a conviction. The court concluded that there was not enough doubt about the outcome to warrant certification for an appeal. Consequently, the court refused the application for certification, holding that the appeal would be hopeless if the evidence was ruled inadmissible. The court's decision was grounded in section 295(3)(a) of the Criminal Procedure Act 2009, which sets out the criteria for granting certification in such circumstances.

Orders