The Queen v Bufton (Ruling No 3) [2019] VSC 396 (27 May 2019)

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THE QUEEN

v

JANICE JOY BUFTON	Accused

JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 May 2019
DATE OF RULING:	21 May 2019
DATE OF REASONS:	27 May 2019
CASE MAY BE CITED AS:	R v Bufton (Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2019] VSC 396

CRIMINAL LAW – Murder – No case submission – Eye witness account of deliberate running down – Account inconsistent with some objective facts – Assertion that jury would not be able to rely on the account – Law applicable to no case submissions – Evidence capable of supporting a verdict of guilty of murder – No case submission rejected.

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr K Armstrong	Mr J Cain, Solicitor for Public Prosecutions

For the Accused	Mr T Danos	Irwin & Irwin Law

1 At the close of the case for the prosecution in this trial, in which the accused currently faces a single charge of murder, Mr Danos for the accused made a submission that there was no case for the accused to answer in respect of that charge.^[1] It was implicit in the submission that there would be a case to answer in respect of the alternative offence of manslaughter, which was to be left to the jury on two alternative bases, namely, manslaughter by unlawful and dangerous act, and manslaughter by criminal negligence.

2 Having heard the submissions made by Mr Danos in support of the application, and without calling upon Mr Armstrong for the Crown, I ruled that there was a case for the accused to answer on the charge of murder. I indicated I would publish my reasons for this decision at a later time. These are those reasons.

3 The accused is charged with the murder of her partner, Colin Snooks, carried out by running him over with his own motor vehicle in the driveway of her property at Fyans Creek Road, Fyans Creek. It is not necessary for the purposes of these reasons to say much about the facts of the case. They are set out in detail in the Summary of Prosecution Opening filed in this matter, and were the subject of some consideration in my previous ruling in the case,^[2] and the decision of the Court of Appeal in respect of an Interlocutory Appeal by the defence in respect of that ruling.^[3]

4 Suffice to say the following. Evidence on which the jury would be well entitled to rely indicated that the relationship between the accused and Mr Snooks was a very troubled one marked by verbal and physical conflict between the two of them. The accused had seemingly become increasingly frustrated and angry at the refusal of the deceased to commit to the relationship, and her jealously about the continuing contact between Mr Snooks and his former wife.

5 On the day of the events, Mr Snooks, seemingly intent on leaving the relationship, attended at the farm with his friend Benjamin Weston to collect his caravan which was at the property. The accused refused to permit this to occur, and to enforce that decision, took control of the vehicle of the deceased.

6 It is alleged that when the accused observed the deceased and his friend walking along the driveway away from the house, she became enraged, to such an extent that she drove the vehicle towards him, running him over and causing the extensive injuries from which he died shortly thereafter.

7 It is apparent that the eye witness, Mr Weston, considered the act of the accused in running down the deceased to be intentional. The accused, on the other hand, from a time shortly after the event, claimed that the deceased had jumped in front of her vehicle, and that the collision was an unavoidable accident.

8 Tyre tracks and other signs left at the scene pointed to the strong likelihood that the vehicle driven by the accused departed the driveway onto the grass verge, on which the deceased was struck, about 45 metres after the vehicle drove past a landmark known as the horse-head stakes, that there were two further changes of direction of the vehicle, that there was an application of emergency braking at or very close to the point of impact with Mr Snooks, and that the point of impact was with the front driver’s side of the vehicle.

9 Mr Danos submitted that the Crown had opened and put its case in a fashion entirely dependent on an acceptance of the version of events given by the eye witness Mr Weston. That version was at odds with objective facts as indicated by the evidence of the police reconstructionist.

10 It was submitted that for the jury to be able to make a finding that the running-down was a deliberate act, they would have to be able to make a finding as to how the collision occurred. That could not occur unless the jury were able to be satisfied beyond reasonable doubt as to the truthfulness and accuracy of the account of Mr Weston. There were only two possible versions of the collision available for consideration of the jury. The account of Mr Weston, and the account of the accused. If the jury could not be satisfied of Weston’s account, a conviction would be impossible.

11 Further, Mr Danos submitted that the prosecution, in opening and putting its case, had, in effect, hung its hat on the evidence of Mr Weston. If that account was not accepted, in its entirety, the prosecution case would necessarily fail.

12 The test which applies to a no case submission is well established. As stated by the High Court in Doney v The Queen:^[4]

13 A judge in considering a no case submission is required to take the prosecution case at its highest, and to draw all inferences that are the most favourable to the prosecution case that are reasonably open.^[6]

14 Where the case depends on circumstantial evidence, the question is not whether the trial judge considers that there remains open a reasonable hypothesis consistent with innocence. Rather, the test is whether the jury could rationally conclude that any inference consistent with innocence is not reasonably open on the evidence.^[7]

15 The weight of the evidence is purely a question for the jury. The judge is not called upon to determine whether he or she thinks that the accused should be convicted. The test is whether, as a question of law, a jury could lawfully find the accused guilty.^[8]

16 The judge must assume that the jury will accept the prosecution witnesses as credible and reliable. The assessment of witnesses is a matter for the jury and where, on one view of the evidence, the evidence demonstrates the accused’s guilt, a no case submission must be rejected.^[9]

17 I do not accept the proposition that the success of the prosecution case on the charge of murder is dependent on an acceptance by the jury of the overall account of Mr Weston. Nor do I accept that the prosecution ever opened or put its case in that fashion.

18 For the charge of murder to be made out, the jury would need to be satisfied beyond reasonable doubt that the accused deliberately ran down Mr Snooks, and that at the time she did so, she intended to kill him or to cause him really serious injury. Clearly the account of Mr Weston would be important evidence in the Crown case. Indeed, it may well be that the jury would have to accept at least some of that account in order to be able to be satisfied of a deliberate running down. However, that does not mean that the jury would need to accept everything said by Mr Weston. That is not the way a criminal trial works.

19 It is always open to a jury, in carrying out their function of assessing the evidence and reaching a determination of the facts, to accept or reject some, all, or none of the evidence of any witness. Mr Weston, although he is an important eye witness, is in no different category in this regard.

20 There are several aspects of the account of Mr Weston which point strongly to the conclusion that the accused deliberately ran down Mr Snooks. First, he described her extremely angry behaviour towards Mr Snooks in the minutes before she ran him over. He stated that she refused to let Mr Snooks remove his caravan, then took his car keys, and ultimately, the vehicle itself, to enforce that position. When Mr Snooks made to walk away down the driveway, something which the jury may consider to have been intensely annoying to the accused, she appeared in the vehicle at the head of the driveway, revved the engine hard, then drove quickly along the driveway in the direction of both men. The vehicle was still on the driveway when Mr Weston took evasive action to avoid being run over himself.

21 Those aspects of the account of Mr Weston are in conflict with much of what the accused had to say in the police interview, and are entirely inconsistent with her claim that all she was doing was endeavouring to drive to the gate to prevent the departure of Mr Snooks.

22 It is true that some aspects of the account of Mr Weston do not accord with some of the objective facts found at the scene. However, the central features of his account were of the accused driving the vehicle at Mr Snooks, of Mr Snooks taking evasive action which led to him leaving the driveway and going onto the grass, and of the accused deliberately running him down. In my view, the jury would be well entitled to accept those central features of the evidence of Mr Weston, while not accepting some of the details of the account. Were the jury to accept such central features, they would reject the account of the accused of having driven solely along the grass, and of an accidental running down brought about not by her actions, but by the surprising action of Mr Snooks in jumping or moving in front of the vehicle.

23 The assessment of the evidence of Mr Weston, of course, would be made in the context of the overall evidence in the case. Furthermore, the determination of the facts by the jury would not focus merely on Mr Weston’s account, but would necessarily be based on a consideration of the entirety of the evidence, part of which is an exculpatory account by the accused which may be considered to be somewhat implausible.

24 In my view, there is ample evidence to justify a conclusion by the jury that the accused deliberately ran over Mr Snooks. Were they to reach that determination, a conclusion about the requisite murderous intent may readily follow. These are all matters for the jury to consider.

25 In my view, there is a case for the accused to answer on the charge of murder. The no case submission made on behalf of the accused is therefore rejected.

Supreme Court of Victoria

The Queen v Bufton (Ruling No 3) [2019] VSC 396 (27 May 2019)