R v Lubik - [2010] VSC 465

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…

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 Lubik

Details

AGLC: R v Lubik [2010] VSC 465
Case: [2010] VSC 465
Decision Date: 15 October 2010

CaseChat Overview and Summary

The case of R v Lubik involved the accused, Lubik, who was charged with the murder of his wife. The case was heard in a higher court before the main trial, where a preliminary hearing was held to determine the admissibility of certain types of evidence. The accused contended that if his wife was killed, it was either by accident or in self-defence. The court was tasked with deciding whether evidence of the relationship between the accused and the deceased, including allegations of aggressive and hostile conduct by the accused over a period of two and a half years before the death, was admissible. Additionally, the court had to determine if hearsay evidence could be admitted under section 65(2) of the Evidence Act 2008.

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