R v Wardlaw (Ruling No 1) - [2019] VSC 408

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT BALLARAT

CRIMINAL DIVISION

S CR 2018 0333

THE QUEEN

BEN RICHARD WARDLAW

---

JUDGE:	CHAMPION J
WHERE HELD:	Ballarat
DATE OF HEARING:	3 June 2019
DATE OF RULING:	4 June 2019
CASE MAY BE CITED AS:	R v Wardlaw (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2019] VSC 408

---

CRIMINAL LAW – Ruling – Trial – Murder – Admissibility of alleged continuing conduct evidence – Central issue in trial will be intent – Insufficient connection to charged act – Evidence ruled inadmissible – Higgins v The Queen [2016] VSCA 47 – Parachoniak v The Queen [2017] VSCA 347 – R v Karabegovic (Ruling No 3) [2015] VSC 642 – O’Leary v The King (1946) 73 CLR 566.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms D. Piekusis QC Mr T. Bourbon	Office of Public Prosecutions
For the Accused	Mr M. Thomas Ms C. Lynch	Melinda Walker

HIS HONOUR:

Introduction

The accused man, Ben Wardlaw, is charged with the murder of Karen Ashcroft on 14 May 2018 at Unit 6/8 Alma Street, Maryborough, in Victoria. This ruling concerns evidence sought to be adduced by the prosecution, regarding events the accused is alleged to have been involved in, a number of hours before Ms Ashcroft was fatally stabbed.

Initially, the prosecution submitted the evidence was admissible as context evidence. In the course of argument, however, it became clear that the prosecution argued for admissibility on the basis of continuing conduct.

The accused objects to this evidence and seeks for it to be excluded.

Summary of the prosecution case

The prosecution allege that between 3:00-4:00am on 14 May 2018, the accused fatally stabbed Ms Ashcroft once to the chest. For approximately ten days before this, the accused was living with four others in the unit where the alleged events took place. The accused had been on a methadone program in the period leading up to the events, and was experiencing emotional difficulties. Various individuals described him as acting strangely, being irritable, and that he was ‘not with it’ during this period. He also kept a large orange hunting knife with him for a couple of days before the alleged offending.

The medical history of the accused shows he was previously diagnosed with anxiety and on a number of prescription medicines. The accused also allegedly used methamphetamine in the period up to the relevant events, including the evening of 13 May 2018. The Crown case is that the accused had a long history of drug abuse and self-medication.

On 13 May 2018, the accused was present at the Alma Street unit, along with other residents and acquaintances. It is alleged that various drugs and alcohol were consumed by a number of people present at the unit throughout the night.

At approximately 6.00pm, the accused was allegedly involved in an incident with another individual, Kylie Thomas. I shall return to discuss this shortly.

Between 10.00pm and 11.00pm that night, Ms Ashcroft arrived at 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 Wardlaw (Ruling No 1)

Details

AGLC: R v Wardlaw (Ruling No 1) [2019] VSC 408
Case: [2019] VSC 408
Decision Date: 4 June 2019

CaseChat Overview and Summary

The case of R v Wardlaw (Ruling No 1) involved the defendant, Wardlaw, facing a trial for the alleged murder of an individual. The dispute centred on the admissibility of certain evidence presented by the prosecution, specifically evidence of the defendant’s alleged continuing conduct that was argued to be relevant to the central issue of intent in the trial. The case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the evidence of the defendant’s alleged continuing conduct was sufficiently connected to the charged act of murder to be admissible under the relevant evidentiary principles. The court needed to determine whether this evidence would assist in resolving the central issue of the defendant’s intent at the time of the alleged offence, as per the precedents established in cases such as Higgins v The Queen, Parachoniak v The Queen, and R v Karabegovic. The court also considered whether the probative value of this evidence outweighed any potential prejudicial effect it might have on the jury, as outlined in O’Leary v The King.

The court found that the evidence of the defendant’s alleged continuing conduct did not have a sufficient connection to the charged act of murder, and therefore, it was ruled inadmissible. The reasoning was grounded in the principles established in previous cases, which emphasised that evidence of continuing conduct must be closely related to the specific act in question to be considered relevant. The court determined that the evidence in this case did not meet the required threshold of relevance and could potentially mislead the jury regarding the central issue of intent. Consequently, the evidence was excluded from the trial.

The final orders of the court were that the evidence of the defendant’s alleged continuing conduct would not be admitted as part of the prosecution’s case. This decision was based on the insufficient connection between the evidence and the charged act of murder, and the potential for prejudice without a corresponding increase in probative value.

Orders