R v Badenoch [2004] VSCA 95

R v Badenoch [2004] VSCA 95 - VSCA 2004 case summary — Zoe

[62]

"On behalf of the Crown, Mr McDermott told you that the evidence revealed a stormy and violent relationship between the accused and his sister, particularly in the 24 hours before Amalie Badenoch's death. The supermarket incident revealed that the accused was ill-disposed to his sister and it was Mr McDermott's submission that the accused initiated the violence on that night. Additionally, the evidence of witnesses who spoke to the deceased prior to her going to the caravan park, suggested that the deceased had some intention to obtain vengeance for what had occurred at the supermarket to even the score. This was the background to the events of that evening and to your decision as to whether the Crown had satisfied you of the guilt of the accused.

...

Turning to the cause of death, Mr McDermott submitted you should have no difficulty in deciding that the cause of death was the stab wound with its resulting haemorrhage. That was the evidence of Dr Robertson. You should be in no doubt that this was a deeply penetrating injury going through the left lobe of the liver and ending, as it did, in slicing the splenic vein. The Crown rely on the depth and track of the wound as making quite illogical and fanciful any suggestion that it was inflicted accidentally by the accused. It was caused, submitted Mr McDermott, by the deliberate use of the knife by the accused."[3]

...

"Turning to the accused's state of mind at the time of the stabbing, Mr McDermott put to you that the accused claimed in the second interview to have armed himself for protection. It follows that the accused had deliberately armed himself with the knife at an early stage with the intention of using it if necessary. The compelling inference was that the knife was in his hand, given the lack of injuries to his abdomen. Mr McDermott submitted that the accused decided to use the knife and stabbed his sister. Mr McDermott submitted the relationship of the accused had reached the stage that the accused decided to stab her and he was not acting in self-defence. Even if his sister rushed at him and might have had a bottle - to his mind - and even given the sister's reputation and background, was the response of the accused out of proportion to any danger he believed he faced? Mr McDermott submitted it was. He said he did not retreat at any time and any danger his sister represented to him did not warrant the use of the knife. Accordingly, Mr McDermott submitted, the accused was not acting in self-defence."[4]

[65]

"Mr Badenoch's position here of course is that this is a tragic accident. That is it from start to finish[5].

...

He wasn't looking for trouble. Mr McDermott says that this man intentionally stabbed and killed his sister. This man, in my submission, was doing everything that he could reasonably do to avoid a confrontation. He had immobilised the car, thus preventing any further damage; he had left the scene, just dis-engaged himself from her and headed off up to get help, that's where he was going. Had she sat in the car he'd have no doubt got to the office and a phone call would have been made, something different might have happened - but he didn't get to the office. We now know what happened. And young Sandawarra, tragically for him, saw most of this unfold in front of him. He told you that what he saw was his uncle restraining, that's his word, `restraining' his mother; holding on to her, with his arms around her and his legs entangled in hers and whilst in that position, he was asking the boy to go to the office. There is no suggestion by that young boy that Mr Badenoch had a knife in his hands. The clear impression, clear observation, if you like, of the boy was that his uncle was trying to hold his mother and restrain her, stop her. Not to inflict injury on her, not to kill her, not to stab her. We know what happened now, that they fell to the ground and we know that she suffered a fatal wound.

...

How do you know when that wound was inflicted; how do you know she was standing up when it happened? Have you got any idea when it occurred, was she on the ground; was she crouched over; was she on her back; was it during the time that he had her in the bear hug pulling her head down? Was it before Sandawarra asked his uncle to stop, before or after Mr Badenoch asked Sandawarra to go to the office? You've got no idea; no one has any idea. Did she get hold of the knife? I'm not seriously suggesting that she did this to herself, but Dr Robertson says it's consistent, in any other way it's not inconsistent with being self-inflicted. I'm not saying that she did it, I'm not asking you to accept that she did, there's no evidence that she did it to herself. There's no evidence that he did it deliberately to her; there's no evidence that he even knew he did it until afterwards."[6]

[89]

"... based upon the need for public confidence in the administration of justice. `If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision.` The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is `a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial`. Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of `the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case.` Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them."[20] (Footnotes omitted.)

At a glance

Court

Decision date

Before

Source

Judgment (234 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (1)