R v Wilio (Ruling No 1) - [2021] VSC 71

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0212

THE DIRECTOR OF PUBLIC PROSECUTIONS	Crown
v
NORDEN WILIO	Accused

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 February 2021
DATE OF RULING	9 February 2021
DATE OF REASONS:	23 February 2021
CASE MAY BE CITED AS:	R v Wilio (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2021] VSC 71

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CRIMINAL LAW – Murder – Shootings of two men – Refusal by Crown to call witness who might attest to self-serving statement made by accused after shootings – Whether evidence relevant – Whether infringed hearsay rule – Whether admissible under admissions exception to the rule – Whether should be led as a matter of fairness by Crown under mixed inculpatory/exculpatory statement exception – Evidence hearsay and not admissible under any exception – No other basis for admissibility – No basis for questioning prosecutor about decision not to call witness – Incriminating conduct evidence – Disposal of items, flight from scene, and threat to a person – Whether reasonably capable of being viewed by jury as evidence of incriminating conduct – Only relied on by prosecution as going to one element of crime of murder in each case – No fault with that approach – No vagueness or uncertainty as to evidence or way in which it was to be used – Evidence passed test for admissibility of incriminating conduct evidence – Evidence Act 2008 ss 55, 56, 59, 81; Jury Directions Act 2015 s 20.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Gibson QC with Mr G Hayward	Ms A Hogan, Solicitor for Public Prosecutions
For the Accused	Mr J Desmond with Mr A Chernok	Emma Turnbull Lawyers

HIS HONOUR:

Introduction

The accused is to stand trial on an indictment containing a charge of attempted armed robbery and two charges of murder. Rulings were required in respect of a number of pre-trial issues. Some of those issues fell away during the pre-trial hearing. Two remained.

Having heard submissions in respect of the two remaining matters, I made rulings on 9 February 2021 in each case, providing limited reasons. I indicated that I would publish detailed reasons for these rulings at a future time. These are those reasons.

Facts

The accused is charged with the murder of one of his associates, Ali Ali (‘Ali’), and of Deniz Hasan (‘Hasan’), who was allegedly the target of an attempted armed robbery by the accused and Ali.

The accused is alleged to have intentionally shot and killed Hasan, and to have accidentally shot Ali while trying to shoot Hasan. In relation to the death of Ali, the applicant is charged with common law murder (relying on the doctrine of transferred malice) and, in the alternative, statutory murder occurring in the course or furtherance of the attempted armed robbery of Hasan. He is charged with common law murder in respect of Hasan.

It is alleged that on the afternoon of 4 March 2019, Ali…

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 Wilio (Ruling No 1)

Details

AGLC: R v Wilio (Ruling No 1) [2021] VSC 71
Case: [2021] VSC 71
Decision Date: 9 February 2021

CaseChat Overview and Summary

The case of R v Wilio (Ruling No 1) involved the accused, Wilio, who was facing charges of murder following the shootings of two men. The case was heard in the relevant Australian court. The primary dispute centred on the admissibility of certain evidence, specifically a statement made by the accused after the shootings and other incriminating conduct evidence.

The court was required to determine the admissibility of the post-shooting statement made by the accused, which was potentially self-serving. The Crown declined to call a witness who might attest to this statement. The court needed to assess whether this evidence was relevant, whether it infringed the hearsay rule, and if it could be admitted under any exception, such as admissions or mixed inculpatory/exculpatory statements. Additionally, the court had to evaluate the admissibility of other incriminating conduct evidence, including the disposal of items, flight from the scene, and threats to a person.

The court found that the post-shooting statement was hearsay and did not fall under any exception to the hearsay rule, thus it was inadmissible. The court also held that there was no basis to question the prosecutor's decision not to call the witness. Regarding the incriminating conduct evidence, the court ruled that it was reasonably capable of being viewed by the jury as evidence of incriminating conduct, as it pertained to one element of the crime of murder. The court found no fault with the prosecution's approach to using this evidence and determined that it passed the admissibility test.

No orders were made by the court in this ruling, as it focused solely on the admissibility of the evidence in question.

Orders