| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 028 of 2010
| THE QUEEN | |
| v | |
| PETER LUBIK | Accused |
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JUDGE: | ROBSON J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 30 September, 4, 5, 7, 8 and 11 October 2010 | |
DATE OF RULING: | 15 October 2010 | |
CASE MAY BE CITED AS: | R v Lubik | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 465 | |
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CRIMINAL LAW – evidence – murder trial - preliminary hearing on admission of hearsay and relationship evidence – accused charged with murdering his wife – accused claims wife killed by accident or in self defence – whether relationship evidence admissible of aggressive and hostile conduct against the deceased by the accused over two and half years before her death – whether hearsay evidence should be admitted under s 65(2) of the Evidence Act 2008 – ruling allowing admission of relationship and hearsay evidence
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D.A. Brown with Ms D Karamicov | Craig Hyland, solicitor for the DPP |
| For the Defendant | Mr W.B. Lindner | Lewenberg & Lewenberg |
HIS HONOUR:
INTRODUCTION AND SUMMARY
Peter Lubik is charged with the murder of Barbara Lubik at Noble Park, Victoria on 25 January 2009. The Crown has given notice of tendency evidence under s 97(1) of the Evidence Act 2008 (“the Act”) and a notice of hearsay evidence under s 67 of the Act. The Crown no longer wishes to proceed with the notice of tendency.
This ruling determines issues as to the admissibility of the hearsay evidence under s 199 of the Criminal Procedure Act 2009. Although not required by the Act, the Crown has given notice that it intends to adduce “relationship” evidence and in particular evidence of the prior aggressive and hostile conduct by the accused towards the deceased and evidence of the fear of the accused by the deceased.
The trial has not commenced. The summary of the Crown opening gives notice that the Crown will allege that the accused and the deceased were husband and wife residing at 8 Julius Crescent, Noble Park. The Crown will allege that on 25 January 2009, the accused and the deceased went shopping in the Dandenong area with Elizbieta Wijas, a friend of the deceased’s. The accused became separated from the group. Wijas drove the deceased home about 3.00pm. Subsequently the accused arrived home. The Crown alleges the accused initiated a physical confrontation between the accused and the deceased in the dining room area. As a result of this confrontation, the deceased received one stab wound to the throat which resulted in her death. The Crown alleges the wound was inflicted by the accused with the intention of killing or causing really serious injury to the deceased.
Counsel for the accused has indicated that anticipated defences at the trial are state of mind, accident and self-defence. The Crown’s summary of opening refers to a conversation the accused is alleged to have had with a security guard who was a friend of his, Mark Cieslak. The…
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- R v Lubik [2010] VSC 465
- Case
- [2010] VSC 465
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were centered around the admissibility of relationship evidence and hearsay evidence in the context of a murder trial. The court considered whether the evidence of the accused's conduct towards the deceased was relevant and necessary to establish the context in which the alleged murder occurred. Furthermore, the court examined whether the hearsay evidence, which was not directly testimonial but related to the circumstances of the deceased's death, could be admitted under the statutory provision allowing for its admission if it was in the interests of justice to do so.
The court ruled in favour of admitting both the relationship evidence and the hearsay evidence. The reasoning was that the evidence of the accused's conduct towards the deceased was relevant to understanding the dynamics of their relationship and could assist in establishing whether the killing was accidental or in self-defence. The court found that the evidence of the accused's aggressive and hostile conduct was probative and not merely prejudicial. Regarding the hearsay evidence, the court determined that its admission was justified under section 65(2) of the Evidence Act 2008 as it would be in the interests of justice to consider the full context of the circumstances leading to the deceased's death.
As a result of the court's ruling, both the relationship evidence and the hearsay evidence were admitted for use in the trial. This decision allowed the jury to consider a broader context of the accused's behaviour and the circumstances surrounding the death of the deceased. The final orders of the court allowed for the admission of these types of evidence, which would be pivotal in the main trial to assist the jury in making an informed decision regarding the accused's guilt or innocence.
Orders
Orders of the court
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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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