R v Fieldman (Ruling No 1) - [2010] VSC 257

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT BENDIGO

CRIMINAL DIVISION

No. S CR 2008 1737

THE QUEEN

TROY ANTHONY FIELDMAN

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JUDGE:	KAYE J
WHERE HELD:	Bendigo
DATE OF HEARING:	7 June 2010
DATE OF RULING:	7 June 2010
CASE MAY BE CITED AS:	R v Fieldman (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2010] VSC 257

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CRIMINAL LAW – Evidence – Culpable driving – Whether previous criminal record of deceased admissible – Deceased riding stolen bike – Factual issue whether deceased suddenly slowed bike before impact – Relevance of prior convictions to possible decision by deceased to try to access escape route – Evidence admitted – Evidence Act 2008 (Vic) ss 55(1), 135(a).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms C Barbagallo	Office of Public Prosecutions
For the Accused	Mr I Hill QC with Ms A Fox	C D Traill Lawyers

HIS HONOUR:

In this case, the accused man is charged with one count of culpable driving causing the death of Dennis Yannapoulos on 25 December 2006.

Shortly before the incident which caused Mr Yannapoulos’ death, the accused man’s trail bike had been stolen from his property at Kyneton. When the accused discovered that theft, he also heard the sound of the bike travelling on the highway. Accordingly, he set off in pursuit of it. The accident, which resulted in the death of Mr Yannapoulos, occurred at the western end of the Campaspe River Bridge at Burton Avenue which becomes Piper Street at that point at Kyneton. It occurred when the front of the station wagon driven by the accused man came into collision with the rear of the trail bike which was then being driven by Mr Yannapoulos. In the course of the collision, Mr Yannapoulos fell to the ground and he died at the scene of injuries which he sustained as a result of the collision.

The issue which has been raised for me is whether counsel, on behalf of the accused, is entitled by cross-examination to adduce evidence as to a fairly extensive list of previous criminal convictions of the deceased man, Mr Yannapoulos. In particular, the issue which has been raised is whether that evidence would be relevant to any fact which is in issue in this case.

Ms Fox, who appears with Mr Hill of Queen’s Counsel, on behalf of the accused has submitted that the evidence as to the deceased’s man previous convictions is relevant to the manner in which he was driving the motor bike almost immediately before the moment of impact.

At four places, in his record of interview, in his answers to questions 83, 92, 193 and 361, the accused told the police that almost immediately before impact, Mr Yannapoulos appeared to either slow down or stop, as if he intended, or might have been intending, to turn left from the roadway onto a track which was nearby. Ms Fox submitted that the defence wished to contend that there was a reasonable possibility that immediately before…

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 Fieldman (Ruling No 1)

Details

AGLC: R v Fieldman (Ruling No 1) [2010] VSC 257
Case: [2010] VSC 257
Decision Date: 7 June 2010

CaseChat Overview and Summary

In the case of R v Fieldman (Ruling No 1), the defendant was charged with culpable driving following a collision that resulted in the death of the deceased. The deceased had been riding a stolen bike, and there was a factual issue as to whether the deceased had suddenly slowed the bike before the impact. The court was required to determine the admissibility of the deceased's previous criminal record, which was relevant to the possibility that the deceased had attempted to access an escape route. The case was heard in the County Court of Victoria.

The primary legal issue before the court was whether the deceased's prior criminal record was admissible under the Evidence Act 2008 (Vic). Specifically, the court had to consider whether the evidence of the deceased's previous criminal record was relevant to the factual issue of whether the deceased had suddenly slowed the bike before the impact. The court also had to consider whether the probative value of the evidence outweighed any prejudicial effect it may have had.

The court held that the evidence of the deceased's previous criminal record was admissible. The court found that the evidence was relevant to the factual issue of whether the deceased had attempted to access an escape route, and therefore, it was relevant to the circumstances of the collision. The court also found that the probative value of the evidence outweighed any prejudicial effect it may have had. The court relied on section 55(1) of the Evidence Act 2008 (Vic), which provides that evidence is admissible if it has any tendency to prove or disprove a fact in issue in the proceeding. The court also relied on section 135(a) of the Evidence Act 2008 (Vic), which provides that evidence of a fact in issue is not rendered inadmissible because it is relevant to a party's character.

The court admitted the evidence of the deceased's previous criminal record, finding that it was relevant to the circumstances of the collision and that its probative value outweighed any prejudicial effect it may have had. The court's decision was based on a careful consideration of the provisions of the Evidence Act 2008 (Vic) and the specific facts of the case.

Orders