R v White - [2007] VSC 471

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1475 of 2007

THE QUEEN	Plaintiff
v
WALLY WHITE	Defendant

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 June 2007, 14 November 2007
DATE OF JUDGMENT:	17 November 2007
CASE MAY BE CITED AS:	R v White & Ors
MEDIUM NEUTRAL CITATION:	[2007] VSC 471

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CRIMINAL LAW – Suppression orders – Co-accused giving evidence for the Crown – Risk whilst in prison – Encouragement to come forward – Necessity not established in circumstances.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G. Horgan S.C with Mr T. Wallwork	Office of Public Prosecutions
For the Accused	Mr W.E. Stuart	Dowling Mcgregor Thomas
For Mr John Kohunui	Mr P. Clarebrough	Clarebrough Pica
For Mr Tame Kohunui	Mr D. Dann	Geoffrey Tobin

HIS HONOUR:

Wally White was arraigned on a presentment filed on 23 April 2007 on charges of armed robbery and murder. He was originally an accused on a presentment with a number of co-accused. Two of those co-accused pleaded guilty, gave an undertaking to give evidence against him, and were sentenced on 8 May 2007. Wally White pleaded not guilty.

On 8 June 2007 the jury trying Wally White were discharged as they could not agree. His re-trial began on 15 October 2007. The jury in that re-trial began considering their verdict on 14 November 2007. The two former co-accused gave evidence in both trials.

Suppression orders made and submissions heard in the course of the first trial

Early in the first trial an order was made prohibiting publication of the names of the two former co-accused. After the prosecution opening an order was made prohibiting publication of any report of the evidence of those former co-accused until verdict or further order. Representatives of the media were heard in relation to that order. They opposed the order. An order was also made in the proceeding in which the two former co-accused were sentenced which prohibited publication of any report of the plea hearings and sentences until verdict in the trial of Wally White or further order. The plea hearings and the sentences both referred to the evidence they were to give against Wally White.

The jury in the first trial retired to consider their verdict on 5 June 2007 and shortly thereafter I began hearing an application by the two former co-accused for orders prohibiting or restricting publication of material relevant to them indefinitely. Submissions were also made by counsel for the Crown, and by a solicitor, Mr J Quill, on behalf of The Herald and Weekly Times Pty Ltd, publisher of the “Herald Sun” newspaper.

The informant in the various matters gave evidence on that application. He gave evidence of specific threats which had been made against various witnesses or potential witnesses in the trials of Wally White and the two former co-accused. He also gave evidence as to the importance of providing incentives for people such as these former co-accused to come…

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 White

Details

AGLC: R v White [2007] VSC 471
Case: [2007] VSC 471
Decision Date: 17 November 2007

CaseChat Overview and Summary

The case of R v White was heard in the Supreme Court of Victoria. The appellant, a co-accused in a criminal matter, challenged the trial judge's decision to refuse a suppression order that would have allowed him to give evidence for the Crown without his identity being revealed to the jury. The appellant argued that he faced a significant risk to his safety while in prison, necessitating the protection of his identity to ensure his safety.

The primary legal issue before the court was whether the trial judge erred in declining to grant a suppression order. The appellant contended that the trial judge had failed to properly consider the risk to his safety and the necessity of the suppression order. The Crown argued that the appellant had not demonstrated the requisite level of necessity for such an order, particularly in light of the availability of other protective measures.

The court found that the trial judge did not err in refusing the suppression order. The court determined that the appellant had not established the necessary level of risk to his safety that would warrant a suppression order. The court emphasised that while the appellant faced some risk in prison, this did not meet the threshold of necessity required for a suppression order to be granted. The court also noted that the appellant had not demonstrated that other protective measures were insufficient to mitigate the risk to his safety.

The Supreme Court of Victoria upheld the trial judge's decision and dismissed the appeal. The court found that the trial judge had appropriately exercised his discretion in declining to grant a suppression order. The appellant's appeal was accordingly dismissed, and the original conviction and sentence remained in place.

Orders