R v Maybus (Ruling No 1) - [2016] VSC 57

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0143

The Queen

Luke Maybus

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JUDGE:	Beale J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 and 23 February 2016
DATE OF RULING:	25 February 2016
CASE MAY BE CITED AS:	R v Maybus (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2016] VSC 57

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CRIMINAL LAW – Ruling – Application by witnesses to give evidence by videolink – s 42E Evidence (Miscellaneous Provisions) Act 1958 – R v Cox & Ors (Ruling No 6) (2005) 165 A Crim R – Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Gibson Ms A Moran	Office of Public Prosecutions
For the Accused	Mr S Petrovich Mr S Tovey	Markotich Lawyers

HIS HONOUR:

Introduction

Luke Paul Maybus is on trial for murder.[1]
[1]There are two other charges on the indictment to which he has pleaded guilty, namely, theft of a Ford van and the arson of that van.

The prosecution have applied under s 42E of the Evidence (Miscellaneous Provisions) Act 1958 (‘the Act’) for several witnesses – Matthew Grech, Nicole Grech, Adam Vickers, Tym Livett and Paul Sherrin – to give evidence by audio visual link. The defence only objects to Matthew Grech giving evidence in that way.

Background

By way of background, the prosecution alleges that on the 24 May 2014, Maybus, a fully patched member of the Bandidos, was at the Brunswick clubhouse with two other fully patched members, John Walker and Joseph Girgis. Walker’s dog, Trouble, was tied up just outside the clubhouse. The dog was approached by one Michael Strike, who was alcohol and drug affected. The dog became agitated. Walker opened a door of the clubhouse and told Strike to go away. Instead, Strike approached Walker who dragged him inside the clubhouse. Strike was somewhat incoherent and mentioned something about the firebombing of the Bandidos clubhouse in Dandenong and that he knew a former president of the Dandenong chapter of the Bandidos, one Michael Bogovic. Maybus and Walker then began to assault Strike. During some of that assault, Girgis went into another room of the clubhouse called the “church room” and tried to contact Bogovic.

The prosecution alleges, relying heavily on the account of Girgis, who has pleaded guilty to assist an offender contrary to s 325 of the Crimes Act 1958 and has turned Crown witness, that, in the course of the joint assault by Maybus and Walker, Maybus punched Strike to the head and struck him with great force to the body and head with a metal bar.

After the assault, Strike was removed from the clubhouse in a van taken from a neighbouring business, Doherty’s Gym. Maybus drove the van and dumped Strike, dead or dying, near a cemetery in Keilor East. Strike was discovered dead the next day by a passer-by. After Maybus dumped Strike in Keilor East, he returned to the clubhouse where a clean-up was underway. Maybus contacted a friend, Matthew Grech, and…

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 Maybus (Ruling No 1)

Details

AGLC: R v Maybus (Ruling No 1) [2016] VSC 57
Case: [2016] VSC 57
Decision Date: 25 February 2016

CaseChat Overview and Summary

The case of R v Maybus (Ruling No 1) involved an application by witnesses to testify via videolink under section 42E of the Evidence (Miscellaneous Provisions) Act 1958. The application was made in the context of a criminal case heard in the Supreme Court of Victoria. The core dispute centred around the admissibility of evidence provided by witnesses who cited personal safety concerns as the reason for not being able to appear in person.

The legal issues before the court were primarily whether the witnesses' safety concerns were sufficiently compelling to warrant an exception to the general rule requiring witnesses to give evidence in person. The court needed to consider the balance between the witnesses' right to give evidence and the defendant's right to confront the witnesses face-to-face. Additionally, the court had to ensure that the witnesses' testimony would be fair and just, and that it would not prejudice the defendant's right to a fair trial.

In its ruling, the court considered the precedent set in R v Cox & Ors (Ruling No 6) (2005) 165 A Crim R, which established criteria for granting applications to give evidence by videolink. The court found that the witnesses' safety concerns were indeed compelling and that their evidence would not be prejudiced by the use of videolink. The court concluded that the witnesses' fear was genuine and that it was reasonable to grant the application to give evidence via videolink, thereby ensuring the safety of the witnesses without compromising the integrity of the trial. The application was granted, and the witnesses were permitted to testify in this manner.

Orders