| 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 |
---
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 |
---
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.
---
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…
Continue reading R v Wilio (Ruling No 1)
Sign in free to access the full text
- AGLC
- R v Wilio (Ruling No 1) [2021] VSC 71
- Case
- [2021] VSC 71
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.