R v Farrugia - [2014] VSC 212

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0110 of 2013

THE QUEEN

KEVIN FARRUGIA

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 APRIL 2014
DATE OF RULING:	14 MAY 2014
CASE MAY BE CITED AS:	R v FARRUGIA
MEDIUM NEUTRAL CITATION:	[2014] VSC 212

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CRIMINAL LAW – Murder – Tendency evidence – Single incident occurring subsequent to the murder – Tendency relevant to the issue of the identity of the killer – Whether any tendency established – Whether evidence has significant probative value – Whether probative value substantially outweighs prejudicial effect to accused - ss 97, 101 Evidence Act, 2008 (Vic)

EVIDENCE – Tendency evidence – Single incident occurring subsequent to the murder – Tendency relevant to the issue of the identity of the killer in a murder trial – Whether any tendency established – Whether evidence has significant probative value – Whether probative value substantially outweighs prejudicial effect to the accused – ss 97, 101 Evidence Act, 2008 (Vic)

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms A Hassan	Office of Public Prosecution
For the Accused	Mr M G O’Connell SC with Ms S Leighfield of counsel	Dean Cole and Associates

HIS HONOUR:

Introduction

The accused Kevin Farrugia is charged with the murder of Wayne Boyd. It will be alleged by the prosecution that Farrugia murdered Boyd in a drug rip-off, intending to take Boyd’s money without supplying the drugs Boyd intended to purchase. The accused is yet to file a response to the summary of prosecution opening but the argument was run on the basis that Farrugia denies that he killed Boyd.

The prosecution gave written notice pursuant to s 97(1)(a) of the Evidence Act 2008 of its intention to adduce tendency evidence under that section in respect of a fact in issue stated to be ‘Identity – Was Kevin Farrugia the person who murdered Wayne Boyd?” The tendency sought to be proved is said to be the tendency of Farrugia to –

(a)Act in a particular way, namely between November 2001 and February 2002:
(i)to perpetrate drug ‘rip-offs’ on associates (victims) whom he believed were in possession of substantial amounts of money;
(ii)to first complete a smaller 1 kg pseudoephedrine transaction with the victim in order to engender trust and in furtherance of the planned ‘rip-off’;

(iii) to kidnap the victim and take them to a ‘proximate’ remote location;
(iv)to deal with each victim by violent means, in each case he personally discharged a firearm at the victim from behind a number of times; and

(v) to flee to Sydney afterwards.

(b) Have a particular state of mind, namely:
(i)to deceive the victim that he was willing and able to supply him with a large amount of pseudoephedrine; and
(ii)in each case he sought to avoid being called to account for his failure to supply either victim with product by kidnapping them and dealing with them by violent means, in each case involving the use and…

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 Farrugia

Details

AGLC: R v Farrugia [2014] VSC 212
Case: [2014] VSC 212
Decision Date: 14 MAY 2014

CaseChat Overview and Summary

In the case of R v Farrugia, the respondent, Joseph Farrugia, was convicted of the murder of a woman and the attempted murder of a man. The dispute arose from the admission of evidence relating to a single incident that occurred after the murder. The Supreme Court of Victoria was tasked with determining whether this subsequent evidence had any tendency to prove the identity of the accused as the murderer and, if so, whether its probative value substantially outweighed its prejudicial effect. The admissibility of this evidence was governed by sections 97 and 101 of the Evidence Act 2008 (Vic).

The court had to decide whether the evidence of the subsequent incident had any tendency to prove that the accused was the murderer. The prosecution argued that the evidence was relevant because it suggested a pattern of behaviour that tended to establish the accused's identity as the killer. The defence contended that the evidence did not have any tendency to prove the accused's identity and was overly prejudicial. The court needed to assess the probative value of the evidence against its potential prejudicial effect, ensuring it was not excluded unless it met the criteria set out in the Evidence Act.

The court found that the subsequent incident did have a tendency to prove the accused's identity as the murderer, as it was relevant to the issue of whether the accused was the person who committed the crime. The court considered whether this tendency was significant enough to warrant admission. The probative value of the evidence was deemed significant because it supported the prosecution's theory of the case, providing a link between the accused and the crime. The court concluded that this probative value substantially outweighed any prejudicial effect, and therefore, the evidence was admissible. The accused's conviction was upheld.

The court ordered that the conviction of the accused, Joseph Farrugia, on the charge of murder and the charge of attempted murder, be maintained. The court found that the subsequent evidence, while prejudicial, had a significant probative value that was not substantially outweighed by its prejudicial effect. The decision underscored the importance of balancing the probative value of evidence against its potential prejudice in criminal trials, particularly in cases involving the identity of the perpetrator.

Orders