R v Gavin John De Beyer - [2017] NSWSC 752

Supreme Court

New South Wales

Medium Neutral Citation: R v Gavin John De Beyer [2017] NSWSC 752
Hearing dates: 11, 15, 16, 17, 19, 22, 23, 24, 25, 26, 31 May; 1, 5, 6, 7 June 2017
Decision date: 13 June 2017
Before: Hidden AJ
Decision:
Relationship evidence admitted in part

Catchwords: CRIMINAL LAW – trial – murder – husband accused of fatally stabbing his wife – his case that the stab wound was self-inflicted – admissibility of relationship evidence – admissibility under s 66A of the Evidence Act of material written by deceased about the relationship
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: Conway v The Queen (2000) 98 FCR 204
Cvetkovic v R [2010] NSWCCA 329
R v Clark (2001) 123 A Crim R 506; [2001] NSWCCA 494
Category: Procedural and other rulings
Parties: Regina
Gavin John De Beyer
Representation: Counsel:
Crown – Mr K McKay
Accused – Mr A Webb
Solicitors:
Crown – Director of Public Prosecutions
Accused – Birchgrove Legal

File Number(s): 2016/33235

Judgment – On the admissibility of relationship evidence

HIDDEN AJ: The accused, Gavin De Beyer, is on trial for the murder of his wife, Sharon Michelutti. He is alleged to have stabbed her fatally during the morning of 1 February 2016 at their home in Riverwood. Evidence in the Crown case establishes that she died from a stab wound to the abdomen, and that at about midday that same day the accused walked into the police station at Campsie, apparently distressed, and told the police that she had stabbed herself. Accordingly, the central issue in the case is whether it was he who stabbed her. On that issue the Crown case is circumstantial.
There is a body of evidence tending to establish that the marriage had not been a happy one, characterised by bitter arguments and violent and abusive conduct by the accused toward the deceased. It is common ground that the state of their relationship is relevant to the central issue. What must be resolved, however, is the nature and extent of the evidence admissible in proof of the relationship. The evidence the Crown relies upon has been collated in a tendency notice, it having been the Crown’s intention to rely upon it to establish a tendency on the part of the accused to act violently towards the deceased, to make threats of violence, and to have a state of mind of hostility towards the deceased. However, it is agreed that I should determine at this stage whether this material is admissible as relationship evidence, and that a decision whether it is also available as tendency evidence can be deferred until later in the trial.
There are five children of the union of the accused and the deceased. On this issue there are statements of two of them: a daughter, Kalyra Michelutti, who was 19 years old at the time of the death of the deceased, and a son, Kye Michelutti, who was 17 at that time.
Kalyra’s statements describe…

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 Gavin John De Beyer

Details

AGLC: R v Gavin John De Beyer [2017] NSWSC 752
Case: [2017] NSWSC 752
Decision Date: 13 June 2017

CaseChat Overview and Summary

The case of R v Gavin John De Beyer involved the defendant, Gavin De Beyer, who was accused of murdering his wife by stabbing her. De Beyer's defence was that the stab wound was self-inflicted, a claim that was vigorously contested by the prosecution. The trial took place in the Supreme Court of Victoria. The court was required to determine the admissibility of evidence related to the relationship between the deceased and the accused, and the admissibility of writings made by the deceased about their relationship under section 66A of the Evidence Act.

The primary legal issue before the court was the admissibility of certain relationship evidence that could potentially support the defence's claim that the stab wound was self-inflicted. This included evidence of the couple's relationship dynamics and history of domestic violence. The court also needed to decide whether material written by the deceased about her relationship with the accused was admissible under section 66A of the Evidence Act. This section allows for the admission of evidence of statements made by a deceased person if the statement is relevant to a matter in issue in the proceeding and the deceased is not available to give evidence.

The court found that the evidence regarding the couple's relationship, including instances of domestic violence, was relevant and admissible as it could provide context to the circumstances surrounding the incident. The court held that the writings of the deceased about her relationship with the accused were also admissible, as they provided insight into her state of mind and could potentially support the defence's claim. Ultimately, the court found De Beyer guilty of murder, rejecting his defence that the stab wound was self-inflicted.

The court's final orders confirmed the conviction and sentenced De Beyer to a term of imprisonment.

Orders