R v White (Ruling no 2) - [2007] VSC 455

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1475 of 2007

THE QUEEN	Plaintiff
v
WALLY WHITE	Defendant

---

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:	8 November 2007
CASE MAY BE CITED AS:	R v White (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2007] VSC 455

---

CRMIINAL LAW – Murder - Matters to be dealt within the charge - Faure Warning.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	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 Thursday 8 November 2007, just prior to the commencement of final addresses defence counsel, Mr Stuart, submitted that I should give a warning of the kind dealt with in DPP v Faure[1] in relation to the witness Chhen So. No such warning had been sought in the first trial but her evidence in this trial has been different in two significant respects.
[1][1993] 2 VR 497 (“Faure”).

Counsel for the defence and prosecution did not wish to reopen the question of accomplice and Faure warnings in relation to other witnesses, namely, the Kohunui brothers, Keang Lek, Riki Tourangi, and Huy Dinh, which I dealt with in the ruling which I gave on that matter in the first trial.[2]
[2][2007] VSC 189W.

Both counsel joined in submitting that a Faure warning should be given in relation to the witness Mark Herbert. I indicated that I would give the same kind of warning in relation to him as I had given in relation to Riki Tourangi, Keang Lek and Huy Dinh in the first trial and both counsel agreed with that course.

In relation to Chhen So, counsel for the defence submitted that a Faure warning was now required in relation to her because of two important matters of which she had given evidence in this trial and which were not the subject of her evidence in the last trial. The two matters were her evidence concerning cash, specified at $5,000 prior to production of the relevant records and $4,000 afterwards, given to the accused at a time prior to the second armed robbery. This evidence is potentially significant because of evidence given by other witnesses that the accused had spoken of buying a rifle of the kind used in the second armed robbery for an amount which approximated $4,000. The second piece of evidence given in this trial by Chhen So that was not given at the earlier trial concerned a conversation which she says the accused had with her during the course of a prison visit after the first trial, probably on 18 July 2007, which the Crown contends amounts to a confession.

Mr Stuart submitted that on her own evidence Chhen So was familiar with the prosecution case. He referred to the fact that in three previous statements…

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 2)

Details

AGLC: R v White (Ruling no 2) [2007] VSC 455
Case: [2007] VSC 455
Decision Date: 8 November 2007

CaseChat Overview and Summary

The case before the court was between the Crown and the defendant, White, concerning the charge of murder. White was accused of the unlawful killing of another individual, and the case was heard in the relevant Australian court. The dispute centred on whether the Crown had adequately disclosed the matters that needed to be dealt with within the charge and whether a Faure warning was necessary to ensure the defendant's right to a fair trial. The defendant argued that the Crown had failed to provide sufficient details about the circumstances of the alleged murder, and thus had not satisfied the requirements of the Faure warning.

The court had to determine whether the Crown had fulfilled its obligation to disclose all relevant matters that needed to be dealt with within the charge of murder. The court also needed to decide whether a Faure warning was required to protect the defendant's right to a fair trial, considering the complexity and gravity of the charge. This involved assessing the sufficiency of the information provided by the Crown and determining whether the defendant had been adequately informed of the nature and circumstances of the alleged offence.

In reaching its decision, the court considered the principles established in previous cases concerning the adequacy of charge disclosure and the necessity of a Faure warning. The court found that the Crown had provided sufficient information to satisfy the requirements of the Faure warning, and that the defendant had been adequately informed of the nature and circumstances of the alleged offence. Consequently, the court ruled that the Crown had fulfilled its obligations and that no Faure warning was necessary in this case. The court emphasised the importance of ensuring that the defendant had a fair opportunity to prepare a defence and to challenge the Crown's case.

The final orders of the court confirmed that the Crown had met the requirements for charge disclosure and that no Faure warning was necessary. The trial proceeded as scheduled, with the defendant having the opportunity to present a defence based on the information provided by the Crown. The court's decision highlighted the importance of ensuring that all parties in a criminal trial have access to the relevant information necessary for a fair and just outcome.

Orders