R v Spence (Rulings) - [2015] VSC 322

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2014 0023

Between:

THE QUEEN
and
HARVEY SPENCE	Accused

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATES OF HEARING:	16 February to 25 March 2015
DATE OF PUBLICATION OF REASONS:	13 July 2015
CASE MAY BE CITED AS:	R v Spence (Rulings)
MEDIUM NEUTRAL CITATION:	[2015] VSC 322	First revision (15 July 2015): paras [79], [81], [100] & [121]

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CRIMINAL LAW – Jury trial – Accused charged with murder – Rulings:
(1) Admissibility of evidence that, some hours before killing, accused called deceased “a dog” and put him into boot of car for a period before releasing him – Evidence admissible as going to motive and animus – Evidence Act 2008 (Vic), s 137;
(2) Application that WR, a major prosecution witness, give evidence via video-link from a remote facility – Risk that witness may come into contact with accused during prisoner movements – Concerns met by assurances of Corrections Victoria – Application refused – Evidence (Miscellaneous Provisions) Act 1958 (Vic), s 42E;
(3) Application that TM, another major prosecution witness, give evidence via video-link from remote facility – Concerns that witness, and those protecting or near him, at risk of harm in moving to and from Court – Application granted;
(4) Application by accused to discharge jury without verdict – Deceased’s mother upset during prosecution opening – Application refused;
(5) Admissibility of evidence of NB that AS and MA told him that WR told them he killed deceased (which AS and MA deny hearing from WR, and WR denies saying) – Exceptions to rule against hearsay – Whether NB’s evidence admissible to prove (a) inadequacy of police investigation and/or (b) prior inconsistent statements by AS and MA – Whether, if admitted, NB’s evidence also can go to prove (c) that WR said he killed deceased and (d) that he killed deceased – Whether NB’s evidence nevertheless should be excluded on the basis that its probative value would be substantially outweighed by the danger that it might be misleading or confusing or result in an undue waste of time – Whether NB’s evidence should be confined in its use to purposes (a), (b) and (c) – Whether NB’s evidence should be subject of an unreliability warning – NB’s evidence admitted for purposes (a), (b) and (c), but not (d), and subject to unreliability warning – Evidence Act 2008 (Vic), ss 55, 59, 60, 135, 136 & 165; R v Singh-Bal (1997) 92 A Crim R 397; Lee v The Queen (1998) 195 CLR 594;
(6) Directions on murder by joint criminal enterprise (at common law) – Whether agreement must include a common intention, between accused and perpetrator of killing, to kill or cause really serious injury or whether it is sufficient (a) that the agreement be to commit the acts which caused death and (b) that the accused have, but that the perpetrator need not have, murderous intent at the relevant…

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 Spence (Rulings)

Details

AGLC: R v Spence (Rulings) [2015] VSC 322
Case: [2015] VSC 322
Decision Date: 13 July 2015

CaseChat Overview and Summary

The case of R v Spence was heard in an unspecified Australian court where the defendant was charged with the murder of an individual. The court was tasked with several evidentiary and procedural rulings impacting the trial’s progress. Among these were the admissibility of statements made by the accused, the conditions under which witnesses could testify, and the handling of applications regarding the jury. The first issue addressed the admissibility of evidence that the accused had, hours before the killing, referred to the deceased in derogatory terms and confined him in the boot of a car. This evidence was deemed admissible as it related to the accused's motive and animus towards the deceased, falling under the provisions of the Evidence Act 2008 (Vic), section 137.

The second issue involved the admissibility of hearsay evidence provided by a witness, NB, who claimed to have been told by others that a different individual, WR, confessed to the murder. This evidence was admitted to demonstrate the inadequacy of the police investigation and to highlight prior inconsistent statements by other witnesses, though it was not allowed to directly prove that WR committed the murder. The court also ruled that this evidence should be subject to an unreliability warning. Additionally, the court considered applications to allow certain witnesses to testify via video-link, balancing the need for their testimony with the risk of harm to them or others involved. The third issue addressed the admissibility of statements made by the accused to the deceased prior to the killing, which was allowed as it pertained to motive and animus. The final issue involved an application to discharge the jury without a verdict, which was refused, and the court provided directions on the legal requirements for a charge of murder by joint criminal enterprise, clarifying that a common murderous intent is not necessary for such a charge.

The court's reasoning and decisions ensured that the trial proceeded fairly, with the admissibility of critical evidence balanced against potential prejudice. The final orders of the court maintained the integrity of the trial process while addressing the specific challenges presented by the case.

Orders