R v Stone (Ruling No 1) - [2018] VSC 625

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0304

THE QUEEN
v
KATE KATHLEEN STONE	Accused

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JUDGE:	Taylor J
WHERE HELD:	Melbourne
DATES OF HEARING:	15 and 16 October 2018
DATE OF JUDGMENT:	19 October 2018
CASE MAY BE CITED AS:	R v Stone (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2018] VSC 625

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CRIMINAL LAW – Evidence – Murder – Woman charged with murder of defacto partner – Relationship evidence – Whether deceased’s mother’s observations of instances of verbal and physical abuse between the accused and the deceased relevant – Wilson v the Queen (1970) 123 CLR 334, considered – DPP v Paulino (Ruling No 1) [2017] VSC 343, considered – Whether probative value of evidence outweighed by danger of unfair prejudice to the accused – Hearsay evidence – Whether representations made by the deceased to his mother concerning an earlier incident with the accused admissible – Maker of statements not available – DPP v Asling (Ruling No 2) [2017] VSC 38, considered – Evidence Act 2008, ss 55, 65(2)(b), s 66A and 137.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms M Mahady	John Cain, Solicitor for Public Prosecutions
For the Accused	Mr P Kilduff	Robert Davis Barrister & Solicitor

HER HONOUR:

The accused is charged with the murder of Darren Anthony Reid on 19 December 2016 by dousing him in a mixture of toluene/xylene, commonly termed a ‘thinner’, and setting fire to him.

The defence case is, in short, that the accused had nothing to do with the death of Mr Reid, and that instead, Mr Reid was doused in fuel and set alight by an intruder who attended the shared home of the accused and Mr Reid that night, in company with two other men. The accused has previously identified Jason Baxter as the intruder who set fire to the deceased, and one of those two other men as ‘Gibbo’ or Paul Gibson.

It follows that there is no issue that the deceased was murdered. The sole issue in this trial is whether the accused was the murderer.

At trial the prosecution seeks to lead evidence from Valda Webb, the mother of the deceased, as to the nature of the relationship between the accused and the deceased. That evidence may be categorised as follows:

(a)evidence that Ms Webb observed instances of verbal and physical abuse between the deceased and the accused over the years, including arguments on many occasions during which the accused would hit and punch the deceased and ‘be in his face’;
(b)evidence that in 2010 Ms Webb observed a particular argument between the deceased and the accused in which the accused hit and punched the deceased before the deceased’s brother intervened. The accused tipped a television over and obtained a kitchen knife whilst yelling and swearing. The accused then pointed the kitchen knife at the deceased’s brother saying “I’m going to kill you”. The accused and his brother had to restrain 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 Stone (Ruling No 1)

Details

AGLC: R v Stone (Ruling No 1) [2018] VSC 625
Case: [2018] VSC 625
Decision Date: 19 October 2018

CaseChat Overview and Summary

The appellant, Stone, was charged with the murder of her defacto partner. The case came before the court for a ruling on the admissibility of certain evidence. The primary issue was whether evidence of the deceased's mother's observations of verbal and physical abuse between the accused and the deceased was relevant and admissible under the Evidence Act 2008. The court needed to determine if the probative value of this evidence outweighed any potential prejudice to the accused.

The court examined the principles set out in Wilson v the Queen and the decision in DPP v Paulino, considering whether the evidence of abuse was relevant to the charge of murder. The court also needed to decide if hearsay evidence concerning an earlier incident, where the deceased reported the accused's actions to his mother, was admissible under the Evidence Act. The court considered the provisions of sections 55, 65(2)(b), 66A and 137 of the Act, and the decision in DPP v Asling, in determining the admissibility of the hearsay evidence.

After considering the relevant principles and authorities, the court ruled that the evidence of the deceased's mother's observations of abuse was relevant and admissible, as its probative value outweighed any prejudicial effect. The court found that the hearsay evidence concerning the earlier incident was also admissible, as it fell within an exception under the Evidence Act. The court determined that the probative value of this evidence outweighed any prejudicial effect, and it was therefore admissible.

The court made orders admitting the evidence in question, allowing the trial to proceed with this evidence being considered by the jury.

Orders