R v White - [2007] VSC 189

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…

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 189
Case: [2007] VSC 189
Decision Date: 5 June 2007

CaseChat Overview and Summary

In the case of R v White, the appellant stood trial in the Supreme Court of Victoria for the murder of his wife. The prosecution's case hinged on the testimony of an accomplice, who claimed that the appellant confessed to the crime. The defence contested the reliability of the accomplice's evidence and argued that the prosecution had failed to establish the requisite standard of proof beyond reasonable doubt. The central issue before the court was whether the trial judge had correctly instructed the jury on the principles governing the evaluation of accomplice testimony and whether the judge had properly addressed the evidential significance of the appellant's post-offence conduct.

The court considered whether the trial judge's charge to the jury adequately covered the necessary criteria for assessing the credibility of accomplice evidence, including the need for corroboration and the potential for unreliability due to the accomplice's motive to lessen their own punishment. Additionally, the court examined whether the judge had sufficiently explained the concept of 'consciousness of guilt' and its role in the jury's evaluation of the appellant's post-offence behaviour. The court determined that the judge's charge was deficient in not clearly outlining the principles required for the jury to properly assess the accomplice's evidence and the subsequent behaviour of the appellant.

Consequently, the court found that the trial judge's omissions in the charge led to a miscarriage of justice, as the jury was not adequately guided on how to evaluate the accomplice's testimony and the appellant's actions post-offence. The court held that the trial judge's failure to provide clear instructions on these matters meant that the jury's verdict might have been influenced by an incorrect legal standard. The court quashed the conviction and ordered a new trial, emphasising the necessity for a properly instructed jury in cases relying heavily on accomplice testimony.

The final orders of the court included a quashing of the appellant's conviction and a direction for a retrial. The court stressed that in the retrial, the trial judge must ensure that the jury receives a comprehensive and accurate charge on the evaluation of accomplice evidence and the implications of any subsequent conduct that might indicate consciousness of guilt.

Orders