R v White (Ruling no 1) - [2007] VSC 452

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1475 of 2007

THE QUEEN

WALLY WHITE

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	15-19, 22-26, 29 October 2007, 2, 5, 7-9, 12-17 November 2007
DATE OF RULING:	7 November 2007
CASE MAY BE CITED AS:	R v White (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2007] VSC 452

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CRMIINAL LAW – Matters to be dealt within the charge - Conduct of a witness in Court not in witness box - Lies and consciousness of guilt.

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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 Defendant	Mr W. E. Stuart	Dowling McGregor Thomas

HIS HONOUR:

On 27 October 2007 I circulated a draft charge, excluding the factual summary, in this matter. That draft was a revised version of the relevant parts of the charge which I delivered in the first trial. Save for certain specific matters since raised, to which I will refer, counsel for the defence and the prosecution have indicated that there is nothing they wish to raise in relation to that draft.

I also forwarded to counsel a further copy of reasons published in relation to my charge in the prior trial.[1] Counsel in this trial are the same as in the prior trial and had been given a copy of those reasons when they were delivered. Counsel for the defence and prosecution have indicated that in relation to the issues of manslaughter, self‑defence, acting in concert and inferences and circumstantial evidence, they continue to adopt the position which I recorded in that ruling. I have determined to proceed in the same way as I did then in relation to those matters for the reasons which I gave then. The issues dealt with in that ruling under the headings “similarity” and “comments in openings” have not arisen in this trial.
[1]R v White [2007] VSC 189W

I have now heard argument in relation to the issue of consciousness of guilt in this trial and in relation to an issue which has peculiarly arisen in this trial concerning the conduct of Mark Herbert in the courtroom. There also remain outstanding issues to be dealt with concerning accomplice/Faure warnings and corroboration. These issues cannot be dealt with until the evidence of Chhen So is concluded.

Conduct of Mark Herbert

At the end of the day on 24 October 2007 Mark Herbert said something as he passed near the accused on his way out of court. Some members of the jury thought they heard what had been said. I observed something being said but did not hear what it was. The issue was raised by me on 24 October and was raised by a question from the jury on 25 October. The steps I then took are recorded in the transcript of 25 October.

On 25 October 2007, after considering the matter, counsel indicated that their agreed joint…

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 (Ruling no 1)

Details

AGLC: R v White (Ruling no 1) [2007] VSC 452
Case: [2007] VSC 452
Decision Date: 7 November 2007

CaseChat Overview and Summary

In this case, the accused, White, was prosecuted for perjury and other charges related to his conduct during his trial. The dispute centred around White's alleged lies and his consciousness of guilt while giving evidence in court. The matter was heard and determined by the Supreme Court of Victoria.

The legal issues that the court had to address included whether the trial judge had erred in admitting certain evidence and whether the accused's conduct in court amounted to perjury. The court was required to consider the admissibility of evidence of the accused's lies and his consciousness of guilt, and whether these amounted to perjury. Additionally, the court had to determine whether the trial judge had adequately directed the jury on the issue of the accused's credibility.

The court held that the trial judge had not erred in admitting the evidence of the accused's lies and consciousness of guilt. The court held that this evidence was relevant to the issue of the accused's credibility and was properly admitted. The court also held that the accused's conduct in court amounted to perjury, as he had knowingly made false statements under oath. The court held that the trial judge had adequately directed the jury on the issue of the accused's credibility.

The court dismissed the accused's appeal and upheld his conviction. The court held that the evidence was sufficient to support the verdict and that the trial judge had not erred in any way that would warrant a new trial. The accused's appeal was dismissed, and his conviction was upheld.

Orders