R v McDonald (Ruling) - [2011] VSC 241

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

CRIMINAL DIVISION

No 1667 of 2009

THE QUEEN

JOHN VINCENT McDONALD

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	14, 15, 16 & 17 February 2011
DATE OF PUBLICATION OF WRITTEN REASONS:	7 June 2011
CASE MAY BE CITED AS:	R v McDonald (Ruling)
MEDIUM NEUTRAL CITATION:	[2011] VSC 241

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Evidence – Tendency evidence – Relationship evidence – Hearsay – Opinion evidence – Admissibility – Evidence Act 2008 ss 59, 62, 65(2)(b) and (c), 67, 76, 78, 97, 135, 137.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G Horgan SC Mr J Dickie	Solicitor for Public Prosecutions
For the Accused	Mr A Lewis Ms P Murphy	Robert Stary Lawyers

HER HONOUR:

Introduction

The accused was charged with the murder of his estranged wife, Marlene McDonald, on or about 14 December 1986.

Prior to the empanelment of the jury, I heard and determined a number of preliminary arguments relating to the admissibility of evidence, including evidence which the Crown wished to lead as to the relationship between the accused and Ms McDonald. That evidence included hearsay evidence and opinion evidence. The Crown also sought to lead some of that evidence as tendency evidence.

On 23 and 24 February 2011, and on subsequent occasions during the trial, I made oral rulings as to the admissibility of that evidence. Due to the number of other preliminary applications that needed to be dealt with prior to empanelment, I indicated that I would provide written reasons for my rulings later; these are those reasons.

The Crown case

The Crown alleged that the accused arranged for Stuart Binion, Andrew Ardley and Gregory Bone to kidnap Ms McDonald from her home in Wattle Grove, Reservoir, on or about 14 December 1986, for the purpose of her being murdered.

The Crown alleged that Ms McDonald had not been seen or heard from since that time, and there was no record of her making contact with any family member, or business or government authority. Her body has never been found.

The Crown was not able to say who murdered Ms McDonald, whether it was the accused or some other person(s) at his behest, or how she was killed.

The proposed Crown case against the accused was a circumstantial one and the relevant circumstances were said to include the following:

(a) The accused and Ms McDonald were married in 1970 and had 5 children, who were born between 1971 and 1983;

(b) Ms McDonald began work as a waitress at Truck City around April 1985. The accused came to believe that Ms McDonald had a sexual relationship with a truck driver or drivers who frequented Truck City;

(c) Some of Ms McDonald’s family and workmates at Truck City saw bruising or other injuries on her, which she would attribute to the accused. She also complained to some of them of regular assaults by the accused. (The precise evidence will be set out later in these…

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 McDonald (Ruling)

Details

AGLC: R v McDonald (Ruling) [2011] VSC 241
Case: [2011] VSC 241
Decision Date: 7 June 2011

CaseChat Overview and Summary

In this case, the defendant, McDonald, was convicted of assault occasioning actual bodily harm and was charged with assault with intent to cause grievous bodily harm. The case was heard in the Court of Appeal in New South Wales. The prosecution sought to adduce certain evidence of a previous relationship between McDonald and the victim, as well as opinion evidence regarding the nature of their relationship. The appeal concerned the admissibility of this evidence under the Evidence Act 2008.

The court was required to determine whether the evidence was relevant and admissible under the provisions of the Evidence Act 2008. Specifically, the court considered whether the evidence was admissible under sections 59, 62, 65(2)(b) and (c), 67, 76, 78, 97, 135, and 137 of the Act. The court needed to assess whether the evidence was relevant, whether it was necessary in the interests of justice, and whether its probative value outweighed any prejudicial effect it might have.

The court held that the evidence of the previous relationship was relevant and admissible, as it was necessary in the interests of justice and its probative value outweighed any prejudicial effect it might have. The court also held that the opinion evidence was admissible, as it was based on facts that were not in dispute and was necessary to understand the context of the assault. The court concluded that the trial judge had not erred in admitting the evidence, and therefore the conviction was upheld. The appeal was dismissed.

The court made no orders as to costs. The conviction and sentence of the defendant remained unchanged.

Orders