R v Vikic (Ruling)

[2016] VSC 540

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2016 0037  

THE QUEEN	Plaintiff
v
RASIM VIKIC	Defendant

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JUDGE:	COGHLAN JA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2016
DATE OF RULING:	16 August 2016
CASE MAY BE CITED AS:	R v Vikic (Ruling)
MEDIUM NEUTRAL CITATION:	[2016] VSC 540

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CRIMINAL LAW – Admissibility of evidence – Probative value – Hothnyang v R [2014] VSCA 64 – O’Leary v R (1946) 73 CLR 566.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Brown	Office of Public Prosecutions
For the Defendant	Mr D Hallowes	Vale Criminal Law

HIS HONOUR:

1. Rasim Vikic is about to stand trial for the murder of Leigh Graham at 2 Essex Street, North Sunshine on the night of Sunday 12 July 2015. 

1. Rasim Vikic stabbed Leigh Graham three times. The witness Kellie Richards was present at the house and will give evidence about the circumstances leading up to and after the stabbing.  She either was or had been in a relationship with the accused up until about that time. 

1. She made a number of statements about the events.  She made two statements on 13 July 2015.  She took part in a video recorded interview on 31 July 2015, the transcript of which is termed by the investigators as a significant witness statement, and gave a statement on 21 August 2015.

1. In her first two statements Kellie Richards said that the accused had come to the Essex Street house on the Sunday and asked to stay there.  Prior to that time she and the accused had been staying together but were thrown out of the house in which they had been living. 

1. In the second statement she said that she told the accused he could come over to the house, and that when he first arrived she said that she told him he could stay in the shed like a dog. Later she relented and agreed that he could stay in the house. 

1. In the statement she said Leigh Graham, who was the one who actually lived in the house, did accept that the accused would be there but told him he had better be gone by tomorrow morning. 

1. Kellie Richards says that she was punched by the accused and that she punched or pushed him back.  She says that the arrangement was that the accused was to sleep in an empty bedroom.  Richards was sharing the deceased’s room.  The accused wanted to know if she was “fucking him”.  She denied that and said that she would not share the other room with the accused, who punched her.

1. In the way it is described in the second statement there was only one punching incident, although it is probably described twice.  Despite some differences in the narrative she described that incident fairly consistently throughout her statements. 

1. The accused objects to the evidence of the violence towards Kellie Richards on the grounds that it reveals conduct of a kind which is prejudicial and which outweighs any probative value that it has, and in one sense is not relevant.

1. The prosecution submitted that the evidence is relevant to a fact in issue, namely what was the general relationship between the accused and Kellie Richards on the night in question. 

1. It was submitted that the punching was so proximate to the stabbing that the evidence was necessary to show the unfolding of the events on the night,[1] and the accused’s general state of mind leading up to the incident.

   [1]See O’Leary v R (1946) 73 CLR 566; Hothnyang v R [2014] VSCA 64.

1. The prejudicial effect of the evidence is that a jury might reason that because the accused had behaved violently that he must be a murderer.  I will give a direction against such propensity reasoning which I regard as being extremely unlikely in the circumstances of the case.  The evidence I accept is necessary to properly describe the relationship between the accused and Ms Richards.  I will admit the evidence.

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