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[2025] VSC 704
General information, not legal advice.
Supreme Court of Victoria
2025-11-12
Croucher J
Original judgment source is linked above.
CRIMINAL LAW - Reckless conduct endangering life - Alternatively, reckless conduct endangering serious injury - Accused stored loaded homemade pipe‑gun in or under couch in lounge room of family home - Accused's four‑year‑old daughter found gun, with six‑year‑old daughter present - Mother took gun from child, marched up to accused in toilet, chastised him, then deliberately threw, lobbed or dropped gun towards him - Gun discharged upon hitting tiled floor - Freakishly, resulting shot struck mother's face, killing her - Previously, accused had tried discharging gun by firing mechanism, without success - Subsequent expert testing showed gun would not discharge by firing mechanism or by hitting bolt with hand, but would if dropped from height or tapped with hammer - Charge of possessing gun as prohibited person laid initially - Possession charge went to Koori Court as proposed plea of guilty - Ten months after incident, manslaughter charge laid before Koori Court proceeding finally determined - Accused then committed to Supreme Court on possession of gun and manslaughter - Manslaughter put on basis that accused criminally negligent in insecurely storing gun in or under couch, and that negligence caused deceased's death - Following interim ruling on permanent stay application concerning causation and whether deceased's act was a (Ruling 1), Crown abandoned manslaughter and filed over new indictment charging reckless endangerment offences.
RULING 2 - Whether following evidence relevant to reckless conduct charges: deceased's deliberately throwing, lobbing or dropping of gun in toilet, discharge of gun, deceased's resulting injuries and death, accused's triple‑zero call, observations of accused by neighbours and police afterwards, paramedic attendance at scene, informant's membership of Homicide Squad, and pathologist's report - Whether, if relevant, probative value of evidence outweighed by danger of unfairness to accused - Evidence excluded on latter basis - Evidence Act 2008 (Vic), ss 55, 56, & 137.
RULING 3 - Whether video evidence of accused having possession of gun earlier in day while sitting in car relevant - Whether, if relevant, probative value of evidence outweighed by danger of unfairness to accused - Evidence excluded, subject to agreed fact accused possessed gun earlier in day - Evidence Act 2008 (Vic), ss 55, 56, & 137.
RULING 4 - Evidence of accused and deceased's DNA on gun - Whether DNA evidence relevant - Whether, if relevant, probative value of evidence outweighed by danger of unfairness to accused - Whether evidence unnecessary and might cause or result in undue waste of time - Evidence admitted - Evidence Act 2008 (Vic), ss 55, 56, 135, & 137.
RULING 5 - Whether, given nature of charges, permissible to have children's evidence presented by way of VAREs - Parties to agree on how to put children's evidence before jury in light of Rulings 2, 3 and 4 - Criminal Procedure Act 2009 (Vic), ss 232 & 366; Evidence Act 2008 (Vic), ss 55, 56, 137 & 191.
1 Adam Winmar is charged on indictment with reckless conduct endangering life and, in the alternative, reckless conduct endangering serious injury.[1] In the main, this judgment concerns rulings on challenges to the admissibility of evidence the Crown seeks to lead at trial, which is due to commence shortly.
2 Very briefly, the Crown case is that, on 1 April 2023, Mr Winmar recklessly placed, or may have placed, his two daughters (AB aged four; CD aged six) and/or his partner (the children's mother) Kiara Ferguson in danger of death (or, alternatively, serious injury) by storing a loaded homemade pipe‑gun in or under the couch in the lounge room of their home in Shepparton. AB found the gun, which CD saw. Ms Ferguson came upon AB holding the gun, took it from her, and marched up to Mr Winmar, who was sitting on the toilet. In a fit of pique, she said to him, "What did I tell you about this?" Then she deliberately threw or lobbed the gun towards him or deliberately dropped it in front of him. Either way, the gun hit the toilet's tiled floor and discharged. Freakishly and tragically, at least some of the resulting shot struck and killed Ms Ferguson, who was pregnant with the couple's third child.
3 This matter has an unusual procedural history. Initially, Mr Winmar was charged only with being in possession of a firearm as a prohibited person.[2] The matter went to the Koori Court of the Magistrates' Court as a proposed plea of guilty on that charge. However, those proceedings were interrupted when, ten months after Ms Ferguson's death, police added a charge of manslaughter (by criminal negligence).[3] Subsequently, Mr Winmar was committed for trial in this Court via a straight hand‑up brief on both charges.
4 At an earlier hearing, Mr Winmar submitted that the manslaughter charge should be stayed permanently as an abuse of process on the basis that it was foredoomed to fail on the element of causation. In an interim ruling,[4] I indicated that I was troubled that the chain of causation between Mr Winmar's allegedly grossly negligent storage of the gun and its discharge resulting in death was broken by a novus actus interveniens involved in Ms Ferguson's act of throwing, lobbing or dropping the gun on the toilet floor. However, I did not determine the issue finally, as it was then unclear whether the Crown case was that Ms Ferguson performed that act deliberately or accidentally. Subsequently, the Crown indicated in a summary of prosecution opening that its case was that this act was performed deliberately. That remains the Crown's position.
5 Later still, and only recently, I was informed by Mr Shaw, who appears with Mr White for the Director of Public Prosecutions, that, bearing in mind my interim ruling, the Crown had decided not to proceed with manslaughter because of the causation issue but now intended to go to trial instead on a new indictment alleging the reckless endangerment charges. That course required the Crown to file a new (amended) summary of prosecution opening and Mr Winmar to file a new defence response, both of which occurred in the last week or two.
6 In the defence response, Mr Lavery, who appears with Ms Byrt for Mr Winmar, indicated various pre‑trial issues concerning, among other things, the admissibility of evidence the Crown proposed to lead. In summary, after hearing submissions from the parties yesterday, I have ruled on the following topics in the following ways:
7 First, Mr Lavery submits that all of the evidence that pertains to Ms Ferguson's death and her actions after taking the gun from her child is irrelevant to whether she and/or the children were recklessly endangered by Mr Winmar's storage of the gun, and is therefore inadmissible. Alternatively, he submits that the probative value of that evidence is outweighed by the danger of unfair prejudice to Mr Winmar, and, accordingly, I must refuse to admit it. As will be seen, I have determined to exclude that evidence on the latter basis.
8 Second, Mr Lavery submits that evidence, including a Snapchat video, showing Mr Winmar in possession of the gun when in the family car earlier in the day should be excluded on the same basis or bases. I have determined to exclude that evidence, subject to the parties agreeing as a fact that Mr Winmar had the gun in his possession earlier in the day.
9 Third, Mr Lavery submits that evidence of Mr Winmar and Ms Ferguson's DNA being found on the gun should be excluded as it is unnecessary in circumstances where there is no dispute that both handled the gun. I have determined to admit that evidence.
10 Fourth, Mr Lavery submits that the offences charged in this matter do not fall within those specified in s 366 of the Criminal Procedure Act 2009 (Vic) ("the CPA"). As a result, the children are not permitted to give evidence by way of VAREs. I have determined that, in view of my rulings on other matters, at least parts of the VAREs would need to be excluded. It will be a matter for the parties whether they wish to have edited versions of the VAREs played to the jury or instead to lead that evidence through the informant or perhaps by way of a statement of agreed facts.
11 Fifth, Mr Lavery submits that, subject to the foregoing rulings, Mr Winmar's record of interview may need to be edited or excluded in its entirety. Again, in view of those rulings, I have determined that it will be a matter for the parties whether to have an edited version of the interview played to the jury or instead to have the relevant remaining parts led through the informant or by way of a statement of agreed facts.
13 I turn first to the Crown case, which may be summarised in this way.[5]
14 On Saturday 1 April 2023, Adam Winmar, then aged twenty‑eight, did something that will haunt him for the rest of his days. With breathtaking stupidity, he hid his loaded and crudely homemade pipe‑gun from his young family by putting it under (or inside) the lounge room couch at their home in Shepparton. The gun was loaded with a live twelve‑gauge shotgun cartridge. He had tried to fire the gun previously, but with no success.
15 Alarmingly, later in the day, Mr Winmar's four‑year‑old daughter AB found the gun, with her six‑year‑old sister CD in tow. His partner, the children's mother, Kiara Ferguson, came upon AB, took the gun from her, and immediately marched to the toilet, where Mr Winmar was sitting with the door open. She said something like, "What did I tell you about this?" and then deliberately threw or lobbed the gun towards him, or deliberately dropped it in front of him. Either way, the gun hit the tiled floor and discharged in consequence. Freakishly, at least some of the shot struck Ms Ferguson in the cheek below her left eye. Tragically, she fell to the floor, mortally wounded.
16 Mr Winmar tried desperately to help his partner. He rang triple‑zero, and the operator talked him through CPR, which he did his best to perform. At the same time, he tried to keep their two young daughters away from this grisly scene.
17 Soon afterwards, police arrived. An officer went to the toilet area inside the house, where he saw Mr Winmar kneeling over Ms Ferguson, still desperately attempting CPR. He told the officer, "I was sitting on the toilet, she went to throw it at me, it dropped on the floor, went bang and fucking hit her." The homemade gun was on the floor next to Ms Ferguson.
18 A little later, paramedics arrived. Sadly, however, they could not save Ms Ferguson. Her life ended there and then. She was only twenty‑seven, and was pregnant with the couple's third child.
19 At some stage, Mr Winmar came out of the house. He was still highly distressed. He said he had been on the toilet and Ms Ferguson found the gun. He said she threw it at him, and it dropped.
20 At about 8:00 p.m., Mr Winmar was arrested and taken to the Shepparton police station.
21 Commencing just after midnight the next morning, police conducted a recorded interview with Mr Winmar. Among other things, he said the following:[6]
22 Mr Winmar and Ms Ferguson's older daughter CD spoke to police in a recorded conversation (or a "VARE"), also on the Sunday morning, 2 April 2023. Among other things, she said the following:[7]
23 Mr Winmar and Ms Ferguson's younger daughter AB also spoke to police on the Sunday. In her second VARE, her account included the following:[8]
24 The cause of Ms Ferguson's death was reported by a forensic pathologist as "shotgun wound to the head". The pathologist also noted there was no sooting or powder tattooing associated with the wound, which was in keeping with a "pathologically distant range of fire". [9]
25 Leading Senior Constable David Breer, an expert in ballistics, attended the scene on the evening of the incident. Like the pathologist after him, he did not observe any sooting, stippling or tattooing to the gunshot wound to Ms Ferguson. Nor did he see any partially burned or unburned propellent around or within the wound.[10]
26 Subsequently, LSC Breer's testing of the gun (which he repeated fifty times) showed that it would not discharge by deploying its crude firing mechanism. Nor did it discharge when he struck the rear of the bolt with his hand.[11]
27 However, it would discharge if dropped to the floor from heights of 450 mm and 1,000 mm, or if tapped on the bolt lightly with a hammer.[12]
28 LSC Breer also tested the shot spread by securing the firearm and striking the rear bolt lightly with a hammer. The shot spread was inconsistent - because of the lack of a breech face, which meant that sometimes the cartridge cases bulged, and sometimes they ruptured. Just counting the times when the cartridges ruptured, the distance between the firearm's muzzle and Ms Ferguson's wound was a minimum of 400 mm and a maximum of 1,000 mm.[13]
29 Mr Winmar's fingerprints were found on the gun.[14]
30 Both Mr Winmar and Ms Ferguson's DNA profiles were also found on the gun.[15]
Ruling 2: Events after Ms Ferguson took gun, including matters pertaining to her death
31 I turn now to my first ruling.[16] I received both written and oral submissions from counsel on this topic. While I have had regard to all of those submissions, in these reasons, given the time constraints and in the interests of brevity, I shall be referring only to some of counsel's arguments.
32 The Crown case is that, in all the circumstances, by storing the loaded pipe‑gun in or under the couch, Mr Winmar recklessly endangered the lives of his children and/or Ms Ferguson, or at least recklessly endangered their persons. In proof of that case, Mr Shaw intends to lead evidence that, after Ms Ferguson took the gun from AB, she marched up to Mr Winmar and deliberately threw, lobbed or dropped the gun on the toilet floor, that it discharged, and that the resulting shot killed her. Related to that evidence, Mr Shaw was also intending to lead evidence of observations by Mr Winmar's neighbours of him and his remarks after Ms Ferguson was shot, his triple‑zero call, police observations of Mr Winmar at scene (including by body‑worn camera ("BWC") footage), the fact that the informant is a member of the Homicide Squad, and the autopsy results.
33 Mr Lavery submits that the evidence that pertains to Ms Ferguson's death and her actions after taking the gun from her child is irrelevant to whether she and/or the children were recklessly endangered by Mr Winmar's storage of the gun, and is therefore inadmissible, pursuant to ss 55 and 56 of the Evidence Act 2008 (Vic) ("the Evidence Act"). Alternatively, he submits that the probative value of that evidence is outweighed by the danger of unfairness to Mr Winmar, and, accordingly, that I must refuse to admit it pursuant to s 137 of the Evidence Act.
34 Mr Lavery has made it clear that Mr Winmar does not dispute that he stored the gun in or under the couch, that it was loaded, that AB found the gun, that Ms Ferguson took the gun from her, and that CD witnessed this. He also accepts that LSC Breer can give the evidence outlined earlier about the workings of the gun and his testing of it.
35 Mr Lavery has also made clear, however, that the following matters are in issue:
a) first, whether Mr Winmar's storage of the gun created, or may have created, an appreciable risk of death or serious injury;
b) second, whether a reasonable person in the position of Mr Winmar, engaging in that conduct and in the same circumstances, would have realised that he placed, or may have placed, another in danger of death or serious injury (i.e. exposed, or may have exposed, another to an appreciable risk of death or serious injury); and
c) third, whether Mr Winmar engaged in that conduct recklessly - in that he subjectively foresaw that it was probable that his conduct would place, or may place, another in danger of death or serious injury (i.e. would or may expose another to an appreciable risk of death or serious injury).
36 Mr Lavery submits that the evidence of Ms Ferguson's deliberate throwing, lobbing or dropping of the gun and her consequential death (and all of the other evidence connected with that fact) is irrelevant to proof of any of the matters Mr Winmar puts in issue, and is therefore inadmissible. In his submission, the evidence proving those things could not rationally affect (directly or indirectly) the jury's assessment of the probability of the matters in issue in the proceeding. Either offence, if committed, was complete upon Mr Winmar's storage of the gun in or under the couch in the circumstances that obtained, including that there were young children in the house. That Ms Ferguson did something wholly unforeseeable with the gun, and that it discharged and she died in consequence, is not relevant to any of the matters the Crown must prove.
37 Alternatively, Mr Lavery submits that, even if the evidence is relevant, its probative value is outweighed by the danger of unfairness to Mr Winmar. In his submission, no jury could fail to be overwhelmed by the tragic discharge of the weapon and the resulting death of Ms Ferguson in considering the matters in issue in this trial. Further, he submits that judicial directions or warnings could not adequately alleviate that prejudice. Accordingly, in his submission, I must refuse to admit the impugned evidence pursuant to s 137 of the Evidence Act.
38 Mr Shaw submits that the impugned evidence is relevant to placing the events in issue in their full context. Without that evidence, in his submission, the Crown case would become artificial. Further, he submits that the evidence is capable of adding to proof of endangerment in that there was an appreciable risk of death or serious injury to another or others in Mr Winmar's storage of the loaded gun and that a reasonable person in his position would have realised that appreciable risk. He submits that the impugned evidence is capable of showing that that risk was appreciable or real, and not hypothetical, whereas it may seem merely hypothetical absent that evidence. In support of his submissions, Mr Shaw relied on, among other authorities, DPP v Heritage Care Pty Ltd ("Heritage Care").[17] The Court of Appeal held that evidence of the multiple deaths (thirty‑four in fact) was relevant and admissible on the risk‑based occupational health and safety offence in issue in that matter. This was because it may be of evidentiary significance in that it may shed light on the existence of the relevant risk, the likelihood of the risk eventuating, and the gravity of the consequences should the risk eventuate.
39 Mr Shaw accepts that there is illicit prejudice in the impugned evidence, but he submits that any such prejudice can be offset adequately by confining the more prejudicial aspects of the evidence relating to the death. This, he submitted, could be achieved by not leading, for example, troubling photos or BWC footage showing Ms Ferguson's injuries or the resulting blood spatter, the pathologist's evidence, and the like. He also submits that the usual directions regarding avoiding sympathy and prejudice, and emphasising the intellectual nature of the jury's task, would offset any illicit prejudice.
41 In my opinion, the evidence of Mr Winmar's storage of the loaded gun in or under the couch in circumstances where his children might find it, coupled with the evidence LSC Breer is expected to give about the workings of the gun, is the essence of the Crown case on both charges of reckless endangerment. That case will either stand or fall on that evidence, and perhaps a few other matters (including the fact that one of the children did find and handle the gun). There is no dispute that the gun was loaded and that, if it discharged, it could kill or cause serious injury. Nor is there any dispute that the gun could discharge in certain circumstances, but not in others.
42 But I have considerable doubt that the impugned evidence is relevant to any fact in issue in this proceeding. It is plain that no reasonable person could foresee that Ms Ferguson would deliberately throw, lob or drop the gun on the tiled floor of the toilet, thereby causing her own death. Yet the Crown would have it that such a wholly unforeseeable event is relevant because, consistently with s 55 of the Evidence Act, it could "rationally affect (directly or indirectly) the assessment of the probability of the existence of [facts] in issue in the proceeding". Those facts in issue include that there was an appreciable risk of death or serious injury to another or others in Mr Winmar's storage of the loaded gun and that a reasonable person in his position would have realised such an appreciable risk. Thus, if the evidence were admitted, the Crown would seek to use evidence of a wholly unforeseeable risk in proof of a reasonably foreseeable risk. In my opinion, that is not a rational or permissible form of reasoning.
43 Indeed, the logical extension of the Crown's argument seems to be that, if an adult who found the gun then deliberately shot another with it, that evidence also could go in proof of these charges of reckless endangerment. Yet even to utter that line of reasoning is to show that it too is irrational because no such event is reasonably foreseeable.
44 For similar reasons, I consider the Crown's reliance on Heritage Care to be misplaced in the circumstances of this matter. The evidence of the multiple deaths in that case was capable of going to proof of what was, in essence, alleged to be a reasonably foreseeable risk. In that way, the deaths were of evidentiary significance in potentially shedding light on the existence of the relevant risk, the likelihood of the risk eventuating, and the gravity of the consequences should the risk eventuate. On the other hand, as I have said, the deliberate act leading to the discharge of the gun and the consequential death of the unfortunate Ms Ferguson was a wholly unforeseeable event.
45 Further, I do not accept that the impugned evidence would place the Crown's case in a realistic context. Yes, to lead such evidence would be to place the case in the true context in which the police, the neighbours, the ambulance and the pathologist all became involved in one way or another, and also perhaps why the children were interviewed by way of VAREs. But that true context has now passed given the Crown's (sensible, appropriate and necessary) abandonment of the manslaughter charge. And that true context is irrelevant to the current charges. For they are concerned with the risk of harm, not the causation of harm, and with whether that risk was appreciable, reasonably foreseeable, and actually foreseen by Mr Winmar as a probable consequence of his storage of the gun. The current charges are not concerned with the wholly unforeseeable and tragic events that occurred subsequently.
46 However, notwithstanding the foregoing remarks, I find it unnecessary finally to determine the issue of relevance. This is because, on the assumption that I am wrong about relevance, and assuming as well the correctness of Mr Shaw's further submission that the impugned evidence is of high probative value, I am nevertheless firmly of the view that that high probative value is outweighed by the danger of even greater unfair prejudice to Mr Winmar. Any jury hearing the impugned evidence is overwhelmingly - and understandably - likely to feel the utmost sympathy for Ms Ferguson, her children, and her other loved ones. The same jury is equally likely to have feelings of revulsion and disbelief at Mr Winmar's profound stupidity in storing the loaded gun as he did, especially when there were very young children in the house.
47 Further, and also understandably, because the jury will not know the nuances of the law of causation, they will wonder why he is not charged with something far more serious, such as homicide. After all, it would be plain to them that, but for his act of unsafe storage of the gun, Ms Ferguson's tragic death would not have occurred. They will think that he has gotten away with something very serious - involving causing a death, no less - and that, at the very least, justice would demand that he must be convicted of one of the current charges.
48 In these ways, there is an unacceptable risk that the jury would be distracted in their task of properly considering the matters in issue in this trial in a dispassionate manner.
49 While juries are assumed to follow judicial directions guarding against thinking of that and related kinds, there are situations in which that assumption simply cannot reasonably be thought to hold, or at least that it should be seriously doubted. I am convinced that this is one of those cases. Whatever directions I might give, no matter how strong or how firmly put, I have no confidence that Mr Winmar could receive a fair trial if the impugned evidence were admitted. The tragic death of Ms Ferguson would be an ever‑present pall of sadness cast over the trial. The jury would think justice has failed. The more I tried to explain things and the more I told the jury to put those thoughts out of their minds, the more they would think they should ignore me and do the opposite.
50 Accordingly, pursuant to s 137 of the Evidence Act, I must, and do, refuse to admit the impugned evidence because I am satisfied that the probative value of that evidence would be outweighed by the danger of unfair prejudice to Mr Winmar.
51 I should add that I do not accept Mr Shaw's further submission that, if evidence of Ms Ferguson's death were not led at trial, were Mr Winmar to be found guilty of either of the charges of reckless endangerment, it would be impermissible to recognise that tragic fact in an appropriate way in sentencing. Mr Lavery conceded that it would be permissible. While her death, and its impact on her loved ones, would not be taken into account in the same way as if Mr Winmar had been convicted of a homicide, in my view, it would still be permissible to take it into account in the way in which the law recognises when sentencing for endangerment offences where there is an associated death, albeit a death that was not in law caused by the accused.[18]
Ruling 3: Mr Winmar's possession of gun in car earlier in day
52 My second ruling concerns Mr Lavery's submission concerning the evidence, including a Snapchat video, showing Mr Winmar in possession of the gun when in the family car earlier in the day. He submitted that that evidence should be excluded on the basis that it lacks relevance or that its probative value is outweighed by the danger of unfairness to Mr Winmar.
53 As I understood him, Mr Shaw was content not to lead evidence of the Snapchat video if Mr Winmar would agree (perhaps via an agreed fact pursuant to s 191 of the Evidence Act) that he had the gun in his possession earlier in the day.
54 Accordingly, I shall exclude from evidence the Snapchat video, provided the parties can reach an agreed position on the earlier possession of the gun.
55 If there is a failure to agree on the terms of that admission, I shall hear further argument on the matter.
56 My third ruling concerns Mr Lavery's submission that the evidence of Mr Winmar and Ms Ferguson's DNA being found on the gun should be excluded. He could not say that the evidence was irrelevant. Nor could he point to any particular unfair prejudice. But he submitted that it is unnecessary to lead the evidence in circumstances where there is no dispute that both Mr Winmar and Ms Ferguson handled the gun.
57 Mr Shaw submitted that, since there is no dispute that the DNA evidence is consistent with both Mr Winmar and Ms Ferguson touching the gun, the evidence could be led in a way that avoids the need for an expert witness to explain the finer points of DNA evidence.
58 In my opinion, while the evidence may well be unnecessary, it is relevant and there is no unfair prejudice to Mr Winmar in leading it. Nor, particularly given the brief and simple way in which the evidence could be presented, would the leading of it cause or result in an undue waste of time contrary to s 135(c) of the Evidence Act. Accordingly, the evidence is admissible, and I decline to exclude it.
59 In the end, it will be a matter for Mr Shaw whether he persists in leading the evidence.
Ruling 5: Whether child witnesses may give evidence via VAREs
60 My fourth ruling concerns Mr Lavery's submission that it is impermissible to have AB and CD's evidence presented by way of their VAREs because the charges in this case do not fall within the parameters of s 366 of the CPA. He also made it clear that Mr Winmar, sensibly and responsibly, does not wish to have his children giving viva voce evidence in this trial. Neither do I, if it can be avoided. They have been through more than enough as it is.
61 At the time of submissions last night, Mr Shaw was uncertain whether this was a case falling within the ambit s 366. Either way, he too was concerned not to call the children as witnesses if that could be avoided. He was prepared to consider an agreed position where, even if the case did not fall within s 366, the consent of the parties might override that provision or, alternatively, that there could be agreed facts, thereby obviating the need either to call the children or play edited versions of their VAREs.
62 I have determined that, subject to hearing further from the parties, in view of my rulings on other matters, at least parts of the VAREs would need to be excluded. It will be a matter for the parties to agree on that which remains admissible in the VAREs and on whether any such evidence may be led by agreement via edited VAREs or through, say, the informant, or perhaps by way of agreed facts. While I have not yet discussed this with the parties, it may well be that s 232 of the CPA provides some assistance in playing the edited VAREs by agreement, notwithstanding that the reckless endangerment charges do not appear to fall within the ambit of s 366.
63 My fifth and final ruling concerns Mr Winmar's record of interview.
64 Mr Lavery submits that, in view of the foregoing rulings, Mr Winmar's record of interview will need to be edited heavily, or perhaps even excluded in its entirety.
66 Again, in view of the foregoing rulings, I have determined that it will be a matter for the parties whether to edit the interview accordingly or to exclude it and have the relevant parts led through the informant or by way of agreed facts.
[1] Contrary to ss 22 and 23 of the Crimes Act 1958 (Vic), respectively.
[2] Contrary to s 5(1) of the Firearms Act 1966 (Vic).
[4] See R v Winmar (Ruling 1) [2025] VSC [TBA].
[5] For more detail, see the Amended Summary Prosecution Opening for Trial (dated 30 October 2025).
[6] See the Amended Summary of Prosecution Opening for Trial at [33].
[7] See the Amended Summary of Prosecution Opening for Trial at [31].
[8] See the Amended Summary of Prosecution Opening for Trial at [32].
[9] See the Amended Summary of Prosecution Opening for Trial at [30].
[10] See the Amended Summary of Prosecution Opening for Trial at [20].
[11] See the Amended Summary of Prosecution Opening for Trial at [23]-[25].
[12] See the Amended Summary of Prosecution Opening for Trial at [25]-[26].
[13] See the Amended Summary of Prosecution Opening for Trial at [27]. NB: While the Crown's document said a maximum of 1,500 mm, LSC Breer in his statement said it was 1,000 mmm (Depositions at 204).
[14] See the Amended Summary of Prosecution Opening for Trial at [28]-[29].
[15] See the Amended Summary of Prosecution Opening for Trial at [28]-[29].
[16] While this is my first ruling in these reasons, I have labelled it Ruling 2 because it is the second ruling I have made in this matter, the first being the interim ruling I made on the previous application for a permanent stay of the manslaughter charge. Hence the subsequent rulings in these reasons are labelled Rulings 3, 4, 5 and 6, respectively.
[17] DPP v Heritage Care Pty Ltd [2025] VSCA 19.
[18] See, e.g., R v Majok [2017] VSCA 135.
R
Winmar