R v Lual - [2015] VSC 201

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2014 0084

THE QUEEN
v
BONA LUAL	Accused

---

JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 April 2015
DATE OF RULING:	8 May 2015
CASE MAY BE CITED AS:	R v Lual
MEDIUM NEUTRAL CITATION:	[2015] VSC 201

---

HEARSAY RULE – Section 59 Evidence Act 2008 – Exceptions to the hearsay rule – Whether unfair prejudice outweighs probative value of representations - s 65(2)(b), s 65(2)(c),s 66A and s 137 of the Evidence Act 2008.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A. Tinney SC	Office of Public Prosecutions
For the Accused	Mr G. Barns	Pica Criminal Lawyers

HIS HONOUR:

The accused is charged with the murder of his wife, Suzy Oghia, on 5 November 2013. It is undisputed that at about 1:30am on 5 November the accused stabbed his unarmed wife once in the abdomen. She died at the scene, which was her home. The prosecution allege that event was the culmination of a turbulent relationship characterised by controlling, possessive and, at times violent conduct visited upon the deceased by the accused.

Introduction

The prosecution seek to lead a body of relationship evidence said to cover the period after the couple arrived in Australia from Sudan in 2005, and extending up to Ms Oghia’s death. Some of this relationship evidence is in a hearsay form.

The prosecution have served a hearsay notice specifying nine previous representations made by Suzy Oghia to various members of the Australian-Sudanese community. The defence objects to the introduction of most of this evidence on the basis that the previous representation cannot be saved by any exception to the general hearsay prohibition,[1] or, alternatively, (in some cases) s 137 of the Act ought operate to exclude the impugned representation on the basis that the danger of unfair prejudice to the accused outweighs the probative value of the evidence.
[1]Section 59 Evidence Act 2009.

I here reproduce the hearsay notice in full. After dealing with the relevant legal principles I shall set out as much factual background as is necessary and shall then consider each representation individually.

Hearsay notice

REPRESENTATION DATE TIME PLACE CIRCUMSTANCES NAME OF WITNESS

1. Suzi said that the accused had hit her when she returned to the home having been out on a walk A few months after Suzi returned from Brisbane Unknown 6 Marna Court, Noble Park Representation made by the deceased during conversation with Christine Liwa in respect of an injury she had to face. Christine Liwa

2. Suzi said that the accused had hit her during the course of a fight which occurred because he thought she was seeing another man. She had taken her baby to the park because the house was hot. Later that night, the accused had hit her because he thought she was in the company of another man. Two months after the birth of Sandra Unknown At a church in Melbourne Representations made…

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 Lual

Details

AGLC: R v Lual [2015] VSC 201
Case: [2015] VSC 201
Decision Date: 8 May 2015

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of R v Lual was heard, involving the Crown as the prosecutor and Lual as the accused. The dispute centred on the admissibility of hearsay evidence, specifically representations made by Lual, which the prosecution sought to introduce as evidence against him. The court was tasked with determining whether these representations could be admitted under the exceptions to the hearsay rule outlined in the Evidence Act 2008.

The legal issues before the court encompassed the interpretation and application of sections 59, 65(2)(b), 65(2)(c), 66A, and 137 of the Evidence Act 2008. The primary question was whether the probative value of the hearsay evidence outweighed any potential unfair prejudice it might cause, and whether the evidence fell within the permissible exceptions to the hearsay rule. The court also had to consider whether the evidence was relevant to the issues in the case and whether its admission would assist the court in making a decision.

The court, in its reasoning, concluded that the hearsay evidence in question was admissible under the exceptions provided by sections 65(2)(b) and 65(2)(c) of the Evidence Act 2008. It found that the probative value of the representations outweighed any prejudicial effect they might have. The court further determined that the evidence was relevant and would assist in the determination of the case. The final orders of the court allowed the hearsay evidence to be admitted and considered in the trial.

Orders