R v White (Ruling no 2)
[2007] VSC 455
•8 November 2007
| 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: | 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 | |
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CRMIINAL LAW – Murder - Matters to be dealt within the charge - Faure Warning.
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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 she had never referred to having given $4,000 or $5,000 to the accused. It was submitted that she had delayed coming forward with this information for three years. It was also submitted that there was significant delay in her coming forward to the police and informing them of the conversation which the Crown alleges amounts to a confession. It was submitted that this delay was between 18 July and 4 October.
Mr Stuart submitted that the evidence she gave about why she eventually did go to the police was very significant. At the time, in early October, she was threatened with the loss of her house. She said that 90 percent of the reason she went to the police was because she wanted their help to relieve the financial pressure she was under. She had agreed it had occurred to her she had to give something in return. In the course of her evidence she also agreed that she had resentment against White. Mr Stuart submitted that her evidence revealed her financial problems had not resolved at the time she gave her evidence as she had indicated that a refinancing was to settle on Friday 9 November 2007. Mr Stuart also referred to inconsistencies in her evidence about the terms of the prison conversation.
Mr Stuart submitted that Chhen So had in effect bargained with the police to get their assistance and that this makes her unreliable. He submitted she was a person liable to concoct evidence for her own reasons and that she resented the accused.
Mr Stuart submitted that I had correctly set out the relevant principles in my earlier ruling at paras 15 and 16, and, addressing the circumstances which I had suggested might reveal the need for a Faure warning alone or in combination, he submitted that:
(a)The circumstance that the witness might perceive it to be of benefit to give information to the authorities which they would wish to receive applied here, in his submission, “with full force”.
(b)He conceded there was no evidence Chhen So had a criminal background.
(c)He conceded there was no evidence that Chhen So had a prior history of lying or a history revealing a treacherous disposition, but he did emphasise the existence of delay in coming forward with the relevant new evidence.
(d)He conceded that there was no issue here of any indemnity from prosecution or other accommodation in relation to criminal charges she might face.
(e)He submitted Chhen So did have reason to feel resentment against the accused.
When I put it to him that all of these matters had been ventilated in detail in front of the jury and that it might be said the jury were well capable of assessing them, he submitted that the factors here are so strong that it is unsafe to assume a jury can assess them. He submitted that it was a matter of degree but the factors here required a warning.
Counsel for the prosecution also accepted that I had accurately set out the principles in my earlier ruling at paras 15 and 16. Counsel for the prosecution submitted that the circumstances which had led to the witness coming forward with the evidence had been fully ventilated before the jury. They did not reveal any inherent unreliability; and any potential unreliability, it was submitted, could be well assessed by the jury themselves. The Crown submitted that the factors here were not so strong as to create a position where it was unsafe to assume the jury could assess the witness’s evidence without a warning from the judge. The Crown emphasised what the Court of Appeal had said in R v Weiss[3] to the effect that it is important trial judges refrain from giving unnecessary warnings lest the judge intrude on the exclusive domain of the jury.
[3]R v Weiss (2004) 8 VR 388, 396 (“Weiss”).
I ruled that I would not give a Faure warning in relation to Chhen So. I indicated that I would give my reasons later. These are those reasons.
The decision of the Court of Criminal Appeal in Faure has been considered and applied in a number of subsequent decisions. Those cases make it clear, in my view, that the circumstance that a witness has a motive to lie, or to falsely implicate the accused, is not of itself necessarily sufficient to require or justify the giving of such a direction. Rather, the critical question is whether the witness is one who is potentially or inherently unreliable in a way that may not be fully appreciated or understood by the jury, without an appropriate direction by the judge, such direction bearing the authority of the office of the judge. In this respect I particularly refer to the Court of Appeal decision in Weiss.[4]
[4](2004) 8 VR 388, 395. See also R v Ferguson (Ruling No 15) [2005] VSC 471.
I will not set out again the principles which I set out in my earlier ruling, which both counsel accepted as being the applicable principles in the argument I heard on 8 November 2007. I proceed on the basis that they are the applicable principles.
There are a number of important credit issues which concern Chhen So. Most significantly, the new evidence which she has given came to the attention of the police because she sought out and obtained their assistance in dealing with significant financial problems she was then facing. She also candidly admitted in the course of her evidence that she did feel resentment against Wally White, who was for many years her partner.
The credit issues which arise in relation to Chhen So’s new evidence are important. But I accept the submission of counsel for the Crown that all of these issues were fully ventilated before the jury. I also am of the view that the jury is capable of appreciating and understanding them. Ms So is potentially unreliable, but not in a way, it seems to me, that the jury would not be able to fully appreciate and understand.
Ms So is not like the other witnesses in relation to whom I will give a warning. While she did perceive that it would be of benefit to her to give to the police information that they would wish to receive, she was not a person then being held in custody or facing charges herself, she does not have a criminal background, there is nothing to indicate prior lying or treachery, and she was not the beneficiary of some legal advantage or inducement, such as an indemnity from prosecution or a sentence reduction. She does feel resentment against the accused. In itself, that does not warrant a warning.
In my view giving a warning of the Faure kind concerning Chhen So would intrude on matters which ought to be the exclusive domain of the jury.
After completion of argument in relation to whether a Faure warning should be given concerning Chhen So, I raised the issue of corroboration with the respective counsel.
Counsel for the defence submitted that I should direct the jury that, as a matter of law, witnesses in relation to whom I give a warning can not corroborate each other. As he had submitted in the first trial, he submitted I should not go into detail about the possibility of collusion. I set out the relevant sequence of events in relation to the possibility of collusion in my ruling in relation to the first trial. There has been further relevant evidence in this trial. In the circumstances I have determined to take the course which he has submitted I should, as I did in the earlier trial.
The Crown submitted that there are four pieces of evidence that could corroborate the evidence of the witnesses which are the subject of a warning. They are:
1.The three consciousness of guilt lies.
2.The Tourangi tape.
3.The Chhen So admission.
4.The Crown circumstantial case.
Given the ruling I had made in relation to Chhen So, counsel for the defence accepted that the first three items were capable of corroborating the witnesses the subject of a warning.[5]
[5]R v White (Number 1) [2007] VSCA 452W
On Friday 9 November I clarified with counsel that the Crown relies on both the suggested use of “us” and the suggested detailed knowledge in relation to the Tourangi tape and that defence counsel accepts that both aspects of the Tourangi tape are capable of constituting corroboration.
The Crown rely on the detail of the Tourangi conversation as revealing knowledge which could only have come from being there, as well as the suggested use of the word “us”. Defence counsel submitted (as he had in the first trial) that I should not analyse the detail in order to differentiate between evidence of knowledge of detail which could be assessed by reference to evidence of witnesses who were not the subject of a warning, such as Carmen Santilli’s evidence of the guard making a gesture or moving his hand, and evidence of knowledge of detail which could only be assessed by reference to evidence of witnesses which were the subject of a warning, such as the argument between the Kohunuis in the car. As I did in the first trial, I will proceed as defence counsel submitted I should, emphasising the need to set the evidence of the witnesses to be corroborated aside when considering corroboration but not going through the tape either by addressing the specific details, or by giving contrasting examples of details, such as the Santilli example and the Kohunui argument example.
I suggested to counsel for the Crown that if the evidence of the witnesses the subject of a warning were taken away, there would be little left of the Crown circumstantial case, other than the evidence of the $4,000 given to the accused by Chhen So and the phone records. I observed that that did not seem to me to be sufficient evidence in itself to constitute evidence of both the fact of the crime in question having been committed and the fact that the accused committed it.[6] I also suggested that it would make it complicated to divide the Crown circumstantial case into the part that was corroborative and the part that was not. Counsel for the Crown did not press the matter.
[6]R v Galluzzo (1986) 23 A Crim R 211, 215, and R v Rayner [1998] 4 VR 818, 852.
I ruled that the evidence capable of corroborating the witnesses the subject of a warning are the three consciousness of guilt lies, the Tourangi tape, and Chhen So’s evidence concerning what the Crown contends is an admission.
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