R v Wilio (Ruling No 2) - [2021] VSC 606

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0212

THE DIRECTOR OF PUBLIC PROSECUTIONS

NORDEN WILIO

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATES OF HEARING:	23, 24, 25 & 30 August 2021
DATE OF RULING	22 September 2021
CASE MAY BE CITED AS:	R v Wilio (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 606

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CRIMINAL LAW – Murder – Shootings of two men in the course of a planned armed robbery – One of the murders charged in the alternative on the basis of s 3A of the Crimes Act 1958 – Charge of attempted armed robbery included on indictment – Whether should be severed – Evidence of attempted armed robbery would be led in any event - No prejudice to fair trial of accused by inclusion of the charge – Not appropriate to sever – Tendency evidence – Whether evidence concerning previous connection of one of deceased with firearms admissible as tendency evidence going to the issue of whether he, rather than the accused, fired the fatal shots – Not admissible as tendency evidence – Evidence Act 2008 ss 55, 97, 159, 193.

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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 P Chadwick QC	Portfolio Law

HIS HONOUR:

Introduction

The accused is to stand trial on an indictment containing a charge of attempted armed robbery and three charges of murder. Rulings are required in respect of two remaining pre-trial issues.

It is alleged that the accused and his associate Ali Ali (‘Ali’) planned an armed robbery of Deniz Hasan (‘Hasan’) with the use of a shotgun. During the course of the planned armed robbery (charge 1), the accused is alleged to have intentionally shot and killed Hasan (charge 4), and to have accidentally shot and killed Ali (charges 2 and 3) 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 (charge 2) and, in the alternative, statutory murder (charge 3) occurring in the course or furtherance of the attempted armed robbery of Hasan.

The first matter in respect of which a ruling is required concerns the presence on the indictment of the charge of attempted armed robbery. Mr Chadwick QC, for the accused, acknowledges that the inclusion of the charge is in accordance with the legal requirements of the Criminal Procedure Act 2009 (‘CPA’), but submits that the indictment should be severed pursuant to s 193(3)(a) of the Act.

The second matter for ruling concerns the question of the admissibility and use as tendency evidence of evidence about Ali from his brother Sef Ali (‘Sef’).

Facts

It is alleged that on the afternoon of 4 March 2019, Ali and an associate, Ibrhim El Ali (‘Ibrhim’) made a decision to purchase some cannabis and engaged Ibrhim’s brother, Ali El Ali (‘AEA’), to liaise…

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 2)

Details

AGLC: R v Wilio (Ruling No 2) [2021] VSC 606
Case: [2021] VSC 606
Decision Date: 22 September 2021

CaseChat Overview and Summary

The case of R v Wilio (Ruling No 2) involved the defendant who was charged with the murders of two men during the course of an armed robbery. The trial also included a charge of attempted armed robbery. The proceedings took place in a relevant court, likely a superior court given the nature of the offences. The accused contested the inclusion of the attempted armed robbery charge and the admissibility of certain evidence relating to one of the deceased's past dealings with firearms.

The court was tasked with determining whether the charge of attempted armed robbery should be severed from the other charges. The court considered that evidence of the attempted armed robbery would be presented regardless, and its inclusion would not prejudice the defendant's right to a fair trial. Consequently, the court ruled against severing the charge. The court also examined whether evidence about one of the deceased's previous connections with firearms could be admitted as tendency evidence to support the theory that he, rather than the accused, fired the fatal shots. The court held that such evidence was not admissible under the relevant sections of the Evidence Act 2008, specifically sections 55, 97, 159, and 193.

The court's reasoning and decisions shaped the subsequent handling of the case. By not severing the charge of attempted armed robbery, the court allowed all relevant evidence to be presented to the jury. The court's ruling on the admissibility of tendency evidence was crucial in determining what information the jury could consider when assessing the facts of the case. The court's decisions thus impacted the scope of evidence and the framework within which the jury would deliberate.

Orders