R v White
[2007] VSC 189
•5 June 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1475 of 2007
| THE QUEEN | Prosecution |
| v | |
| WALLY WHITE | Defence |
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JUDGE: | WHELAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14-18 May 2007, 21-25 May 2007, 28 May – 1 June 2007, 4-5 June 2007. | |
DATE OF RULING: | 5 June 2007 | |
CASE MAY BE CITED AS: | R v Wally White (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 189 | |
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CRIMINAL LAW – Judge’s Charge - Accomplice/Faure warnings – Consciousness of guilt - Standard of proof.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr G. Horgan S.C. with Mr T. Wallwork | Office of Public Prosecutions |
| For the Defence | Mr B. Stuart | Dowling McGregor Thomas |
HIS HONOUR:
Over prior days I have from time to time heard submissions on matters to be dealt with in my charge. As matters transpired, only two of the issues raised were the subject of substantial controversy. The issues raised concern the directions that should be given, or not given, in relation to consciousness of guilt, manslaughter, self‑defence, acting in concert, evidence of similarity, inferences and circumstantial evidence, references made to “honour amongst thieves” in the opening addresses, discreditable conduct, accomplice/Faure warnings, and some other matters. The issues of substantial controversy concerned accomplice/Faure warnings and consciousness of guilt. I have made determinations on these matters and indicated that on the issues of controversy I would deliver reasons later.
Consciousness of guilt
In relation to consciousness of guilt, whilst the prosecution contends that the accused told many lies, the only lie relied upon as consciousness of guilt is the alleged lie told by the accused to the effect that he was home all night on 28-29 November 2004. Given the significant emphasis placed on other alleged lies concerning the extent and nature of the contact which the accused had with the Kohunuis in the prosecution’s closing address, I suggested to counsel for the defence that I should use those alleged lies as the example of lies which could not amount to consciousness of guilt and he agreed with that course. I gave to both counsel a draft of what I proposed to say on the issue of consciousness of guilt and they made submissions in relation to that. Two matters of substance emerged. First, after discussion, counsel agreed I should identify the portions of the accused’s first record of interview, his statement, and his second record of interview where the accused refers to his activities on the night of 28-29 November. I told counsel the portions I would refer to.
The second matter concerned the issue of burden of proof. Counsel for both the prosecution and the defence accepted that the elements required to be established before a lie can be used as an implied admission of guilt only need to be established beyond reasonable doubt if the relevant lie is the only evidence against the accused or the only evidence upon which the jury proposes to rely, or if the lie is an indispensable link in a chain of evidence necessary to prove guilt.[1] The draft I had circulated had a section dealing with standard of proof but also referred to proof beyond reasonable doubt when referring to the elimination of other possibilities. It reflected in these respects the current Victorian Criminal Charge Book suggested charge. Senior counsel for the Crown submitted that the reference to proof beyond reasonable doubt, without further explanation, in the passage dealing with eliminating other possibilities was inconsistent with the section on standard of proof and was, in its unqualified terms, incorrect. Counsel for the defence submitted I should not delete the reference. The current suggested charge footnotes the relevant passage saying that it “follows” the judgment in R v Nguyen[2]. As I read Vincent JA’s judgment in R v Nguyen he was referring to the need to eliminate other possibilities beyond reasonable doubt before the “inference of guilt” can be drawn[3]. He was not saying other possibilities must be excluded beyond reasonable doubt as an invariable standard to be met, but rather that it was the standard required if the lie or conduct is the basis upon which an inference of guilt is to be drawn or where the lie or conduct is used “to reason to guilt”[4].
[1]Edwards v R (1993) 178 CLR 193; R v Renzella [1997] 2 VR 88 (CA); R v Russo (No 2) [2006] VSCA 297; R v Ciantar [2006] VSCA 263.
[2][2005] VSCA 120.
[3][2005] VSCA 120, at [21].
[4][2005] VSCA 120, at [21].
In the circumstances I determined to deal with the issue of standard of proof in one section devoted to that issue and to remove earlier references.
The prosecutor also criticised the section of the draft I had circulated dealing with the standard of proof in this context. He submitted that the references to proof being required beyond reasonable doubt where the lie was seen to be significant rather than essential was placing on the prosecution a higher burden than the law provides for. My draft again reflected the current suggested charge on this issue. A footnote to the relevant section suggests that what the prosecutor submitted is “technically” correct but that “it may be prudent” to follow the suggestion. In my view it is prudent to use “significant” rather than “essential” or “indispensable”. Where there are many matters which might be relied upon, as is the case here, directing the jury to apply the criminal standard only to what is “essential” or “indispensable” seems to me to be potentially confusing. I think it is preferable to follow the suggested draft in this case. I accordingly determined to follow the draft I had circulated and to use the term “significant”.
Manslaughter
Counsel for both the prosecution and the defence submitted that there was no possible basis in the evidence for a verdict of manslaughter[5]. I agree. I determined not to leave manslaughter to the jury.
[5]R v Gill [2005] VSCA 321
Self-defence
Counsel for both the prosecution and the defence submitted that there was no possible basis in the evidence whereby the jury could conclude that the prosecution had failed to exclude self-defence. Counsel for the accused went further. In responding to the prosecutor’s opening he had submitted to the jury that whoever had fired the gun in the armed robbery on the night of 28-29 November 2004 had committed a murder. The only issue, he had said, was whether that person was the accused. When I raised the question of self-defence, counsel for the defence submitted to me that this was clearly a case of murder and he characterised it as a classic murder. He submitted to me that he did not want the jury distracted by directions on self-defence and that he was concerned that the jury would be so distracted. In the circumstances, having considered Zecevic v DPP[6] and R v Fackovec[7], and the position adopted by the defence, I determined not to leave self-defence to the jury.
[6](1997) 1 CLR 645, particularly at 663-664.
[7][2007] VSCA 93, particularly at [19] per Nettle JA.
Acting in concert
I raised the issue of whether I should give the jury directions about acting in concert. Counsel indicated that that was superfluous and irrelevant given that it was clear the Crown’s sole case is that the accused was a principal and was the person who fired the rifle which killed Jason Gully.
Similarity
In the course of senior counsel for the prosecution’s final address he suggested that the jury should look at the security videos of the first armed robbery and the second armed robbery and compare the third man in each case with the photograph of Mark Herbert which has been tendered and with the video of the accused. Counsel for the defence initially suggested that some direction about evidence of similarity should be given. After considering the matter further he submitted that no direction about the matter should be given, and I accepted that.
Inferences and circumstantial evidence
There is a component of the Crown case which is circumstantial. I circulated a draft of what I proposed to say. The issue of the use of “significant” arose here as well. I have dealt with that issue. Otherwise, counsel had no issues with my draft.
Comments in openings
References were made in the openings to “honour amongst thieves”, and they were the subject of complaint at the time by counsel for the defence. I raised the issue prior to commencing my charge and counsel for both the defence and prosecution submitted events had overtaken that issue and that I should not refer to it. I accepted that.
Accomplice/Faure warnings
A matter of substantial controversy concerned accomplice and Faure[8] warnings.
[8]DPP v Faure [1986] VR 219 (“Faure”).
On this issue counsel for the defence submitted that accomplice warnings should be given in relation to the two Kohunuis and Riki Tourangi. He initially submitted that Faure warnings should be given in relation to Keang Lek, Ray Reid, and Huy Dinh. In the course of argument he withdrew the submission that a Faure warning was required in relation to Ray Reid. In the course of argument he seemed to me to accept that if the Faure warning which I gave was that it was dangerous to convict on the evidence of the witness unless it was corroborated, then there really was no reason to characterise Riki Tourangi as an accomplice. In relation to the existence of evidence capable of corroborating these witnesses, counsel for the defence conceded that the lie allegedly constituting consciousness of guilt was capable of corroborating them as was the contents of the conversation covertly recorded by Riki Tourangi.
Senior counsel for the prosecution accepted that accomplice warnings had to be given in relation to the Kohunuis and that they could not corroborate each other. He contested the need for accomplice or Faure warnings for any of the other witnesses. He submitted Riki Tourangi was not an accomplice. He said the matters which affected the credibility of the other witnesses were matters which the jury could assess for themselves and did not require a special warning. He said there was no danger of collusion in this case and that they could corroborate each other.
The applicable principles in relation to Faure warnings appear to me to be as follows:
1.A Faure warning should be given whenever a witness is potentially or inherently unreliable in a way that may not be fully appreciated or understood by the jury.[9]
2.Such a warning should also be given where the factors which make the witness’s evidence potentially unreliable are so strong that it becomes unsafe to assume that the jury will rely on the arguments of counsel and it becomes necessary for the judge to give a warning with the weight of judicial office.[10]
3.It is important that trial judges refrain from giving unnecessary warnings lest the judge intrude on the exclusive domain of the jury.[11]
[9]R v Ferguson(Ruling No. 15) [2005] VSC 471, at [7] (“Ferguson”).
[10]R v Weiss (2004) 8 VR 388, 395 (“Weiss”).
[11]Weiss (2004) 8 VR 388, 396.
Factors which might reveal the need for a Faure warning, alone or in combination, include:
(a)Circumstances where a person might perceive it to be of benefit to himself to give information to the authorities which they would wish to receive. Criminals in police custody or facing the possibility of charges against themselves or persons near to them can be particularly susceptible to the temptation to implicate others.
(b)A serious criminal background particularly if it involves dishonesty.
(c)A prior history of lying or a history revealing the witness to be of a treacherous disposition.
(d)An indemnity from prosecution, a reduction in sentence, or an agreement not to lay or proceed with charges against the witnesses or others, or some similar inducement, conditioned upon the witness giving evidence.
(e)A reason to feel resentment against the accused.
Even where factors such as those to which I have referred exist, if they are capable of being assessed by the jury for itself then no special warning is called for.[12]
[12]Weiss (2004) 8 VR 388, 396.
There is no issue that an accomplice warning is required in relation to each of the Kohunuis. There is no doubt they are accomplices.
In relation to Riki Tourangi, in my view he is not an accomplice in the relevant sense to the second armed robbery and to the murder. He does, however, have characteristics which require a Faure warning in terms similar to those given in relation to accomplices. The characteristics he possesses in this respect are the following:
(a)He was deeply implicated in the first armed robbery both before and after it occurred. He supplied the knives for the first armed robbery and he received some of the proceeds.
(b)There is evidence that he had prior knowledge of the second armed robbery, there is also evidence that he disposed of the scabbards for the knives which he had given the Kohunuis after the second armed robbery, and he certainly assisted the Kohunuis to flee to Queensland after the second armed robbery.
(c)He was charged by the police with being an accessory to both the armed robberies and to the murder on the basis, as he understood it, that he had supplied the knives before the first armed robbery and had assisted the Kohunuis to flee after the second armed robbery. He was given an indemnity from prosecution which was conditional on his giving evidence “truthfully and frankly”.
(d)He has an extensive criminal history.
In my view, a Faure warning is also required in relation to Keang Lek for the following reasons:
(a)He played a role in the second armed robbery, albeit perhaps an ineffective and deceitful one. He was asked to check out the club before the second armed robbery. He says that he did not do so. He nevertheless responded to Tame Kohunui as if he had.
(b)According to his own evidence, he lied in his first statement to the police.
(c)His evidence at the committal about the two police statements he had made, and which one was true, was unsatisfactory.
(d)He has an extensive criminal history.
The position is similar in relation to Huy Dinh. The characteristics relevant to him are the following:
(a)At the time of his statement to police he was under considerable pressure because he knew he was then facing serious charges and imminent gaol if he did not make a statement about the armed robberies.
(b)He agreed in his evidence before me that he had lied to the magistrate at the committal proceedings in relation to the discussion about the acquisition of the gun at the barbecue at Moya Biddle’s house, although he said that he did so because he did not want to give evidence against the accused.
(c)He has been given an undertaking that the evidence he gives will not be used against him.
(d)He has an extensive criminal history.
In the circumstances I propose to warn the jury in relation to all of the witnesses to whom I have referred that it is dangerous to convict on their uncorroborated evidence.
In relation to corroboration, all of the witnesses in relation to whom I propose to give a warning are associated with each other. The Kohunui brothers have discussed the evidence they proposed to give. They clearly cannot corroborate each other.
The possibility of collusion between Riki Tourangi, Huy Dinh, and Keang Lek, amongst themselves, and with the Kohunui brothers, seems unlikely on the material before me. The Kohunui brothers were arrested on 12 January 2005 and have been in custody ever since. Prior to their pleas of guilty, consequent upon the agreement they made with the prosecution, they never implicated Wally White. Riki Tourangi implicated Wally White from the first statement which he made on 12 January 2005 (Depositions p 1043) and he conducted a covertly recorded conversation with him at the request of police on 25 January 2005 (Depositions p 1051). Huy Dinh also implicated Wally White from his first statement, which was made on 14 January 2005 (see particularly Depositions p 1233 and p 1236). Keang Lek initially did not implicate Wally White in his police statement made on 12 January 2005 (Depositions p 1163) but did so in his police statement made on 31 January 2005 after Wally White had been arrested (see particularly Depositions p 1176 and p 1178), giving the explanation that he had been afraid of White before then. It is also noteworthy in this regard that Keang Lek, Huy Dinh and Riki Tourangi were all prepared to give evidence implicating the Kohunui brothers, and did so at the committal. An important aspect of the evidence of Keang Lek and Huy Dinh against Wally White, being the evidence of the discussion about the gun at the barbecue at Moya Biddle’s house, is not reflected in the evidence of the Kohunui brothers.
On the other hand, all five are, or have been, closely associated with each other, and with Wally White. Whilst it seems to me that collusion involving all five of them is unlikely, it is a possibility that cannot be disregarded in this case, especially given the criminal backgrounds of the persons involved. There could be motivations at work and contacts between the participants which have not been revealed by the evidence.
Accordingly, I determined to direct the jury that none of the five could corroborate any other. After some argument and discussion, counsel for both the prosecution and the defence submitted I should simply direct the jury that as a matter of law the five witnesses cannot corroborate each other, and not address the collusion issues in this context. I had proposed to say that the possibility of collusion could not be disregarded, but to then go on and say that the issue of collusion in fact was a matter for the jury, and I was considering referring them to relevant evidence. However, as counsel for both sides argued in favour of a simple emphatic direction I determined to do as counsel submitted I should do.
As to other corroboration, there was no issue that the consciousness of guilt lie and the taped Tourangi conversation were capable of corroborating the witnesses.
One aspect of these potentially corroborative pieces of evidence requires emphasis to the jury. That is that the jury cannot rely on any of the evidence which needs corroboration in assessing the potentially corroborative evidence.
In assessing the consciousness of guilt lie the jury must, for these purposes, disregard the evidence of the Kohunuis and the other three. They will be assisted in that respect by the fact that the prosecution has put to them that what the accused said is shown to be a lie by the evidence of Chhen So and by the phone records and not by the evidence of the Kohunuis or the other three.
In assessing the detailed knowledge allegedly displayed by the accused in the Riki Tourangi recorded conversation the jury will need to disregard the evidence of the five tainted witnesses. I had proposed to go through specific aspects of that conversation in that context and I canvassed with counsel two aspects in particular. Counsel for the defendant submitted I should not adopt that course. After argument I determined to adopt the course urged upon me by counsel for the defence.
Other issues
Other matters were the subject of submissions on the proposed charge including a number of complaints made by the prosecution in relation to the final address of defence counsel. I think the transcript adequately reflects how those matters were determined.
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