R v Johnstone (Ruling No 1) - [2011] VSC 306

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1556 of 2007

THE QUEEN	Plaintiff
v
AARON JAMES JOHNSTONE	Defendant

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 June 2011
DATE OF RULING:	8 June 2011
CASE MAY BE CITED AS:	R v Johnstone (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2011] VSC 306

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CRIMINAL LAW – Evidence – Murder – Relationship evidence – Admissibility of video clip recorded on mobile phone showing lewd and drunken behaviour of accused in company with deceased – Where defence case that accused’s actions triggered by sexual propositioning by the deceased – Whether probative of accused’s state of mind – Lack of probative value – Prejudicial effect – Evidence excluded.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Rochford SC with Ms S Flynn	Craig Hyland, Solicitor for Public Prosecutions
For the Defendant	Mr J Desmond	Marich Legal

HIS HONOUR:

The accused is charged with the murder of his housemate, Higgins, on 22 September 2006. It is not in issue that he caused the death of Higgins by conscious, voluntary and deliberate acts. It is disputed that he did so with murderous intent.

In his record of interview the accused gives a relatively detailed and extensive account of bashing the deceased until, on one version, the deceased was unconscious. He admits using both his fists and a weapon, (namely a clay statue of a platypus) and hitting the deceased in a series of assaults which escalated in violence (see especially answers 167 to 275 and 393 to 524).

He says that the assault was triggered by the deceased coming into the lounge while drunk and naked and saying something like, ‘I'd like to suck your dick’. He says further that the deceased had pestered him with various advances whenever the deceased was drunk over the preceding months. This occurred some five days a week.

On this occasion, the accused had had ‘a fair bit to drink’, and just snapped and lost it. He says that the deceased was homosexual and he is not.

The prosecution desires to lead evidence obtained from the deceased's mobile telephone which shows a series of brief video clips. The clips show a third party, Andrew Studd, the deceased and the accused cavorting with each other while apparently drunk. In one clip the accused is dancing with or holding the deceased while a song is being played. In another, Studd exposes his penis. There is also another clip of an unidentifiable man's penis which Studd has previously given evidence is that of the accused. Studd says this clip was recorded in the presence of the deceased. It was also the accused who held the phone to take much of the video clips as a whole.

The evidence of Studd is that the video was taken on the deceased's mobile phone ‘ages ago while I was still living there’, i.e. in the deceased's place of residence. There is no evidence that the events…

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 Johnstone (Ruling No 1)

Details

AGLC: R v Johnstone (Ruling No 1) [2011] VSC 306
Case: [2011] VSC 306
Decision Date: 8 June 2011

CaseChat Overview and Summary

The case of R v Johnstone involved a murder charge against the defendant, Johnstone. The dispute centred on the admissibility of a video clip recorded on a mobile phone, which depicted lewd and drunken behaviour of the accused in the company of the deceased. The defence argued that the deceased's sexual propositioning triggered the accused's actions, and that the video was probative of the accused's state of mind at the time of the incident. The court was tasked with determining whether the probative value of the video outweighed its prejudicial effect.

The legal issues before the court involved the principles of evidence law, particularly the relevance and admissibility of the video clip. The court had to consider whether the video could assist in establishing the accused's state of mind and if its probative value was sufficient to outweigh any potential prejudicial effect it might have on the jury. The defence's argument that the video was relevant to understanding the accused's actions was weighed against the potential for the jury to be swayed by prejudicial content.

In ruling on the matter, the court concluded that the video clip lacked sufficient probative value to justify its admission. The court found that the video primarily depicted the accused's behaviour without providing meaningful insight into his state of mind in relation to the murder. Additionally, the court was concerned that the video's content could unfairly prejudice the jury against the accused, thus undermining the fairness of the trial. Consequently, the evidence was excluded from the trial.

The final orders of the court were that the video clip recorded on the mobile phone, showing the lewd and drunken behaviour of the accused in the company of the deceased, was to be excluded from evidence in the trial.

Orders

Orders of the court

Evidence excluded.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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