R v Wilio (Ruling No 3) - [2021] VSC 726

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:	3, 4 & 5 November 2021
DATE OF RULING	5 November 2021
DATE OF REASONS	8 November 2021
CASE MAY BE CITED AS:	R v Wilio (Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2021] VSC 726

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CRIMINAL LAW – Jury – Application for discharge of jury - Eye witness to alleged events expressed fear of harm befalling himself or his family in the event he answered questions – No express evidence of any threat by or on behalf of accused – Defence assertion that jury would inevitably conclude that witness had been threatened by or on behalf of the accused – Early stage of trial – No difficulty in prosecution presenting case again – Whether any prejudice would flow to the accused from the evidence – Whether any such prejudice amenable to judicial directions – No high degree of need for jury to be discharged – Application refused.

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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’s trial on an indictment containing a charge of attempted armed robbery and three charges of murder commenced on 27 October 2021. The three charges of murder concern the alleged murder of two people named Deniz Hasan (‘Hasan’) and Ali Ali (‘Ali’). The murder of Ali is put on two alternative bases, including one basis founded on s 3A of the Crimes Act 1958.

On 4 November 2021, as a result of the asserted prejudicial effect of some answers given by a prosecution witness Ibrhim El Ali (‘Ibby’) in front of the jury, counsel for the accused, Mr Chadwick QC, applied for a discharge of the jury. The application was opposed by the prosecution, for whom Mr Gibson QC and Mr Hayward appear.

Having heard the submissions from both sides, I refused the application on 5 November 2021. I indicated at the time that I would state my reasons for the ruling at a future time. These are those reasons.

Facts

Little need be said of the facts for present purposes. They are dealt with in some detail in my previous rulings in this case.[1] Suffice to say that it is alleged that the shootings of the two deceased occurred in the context of a plan hatched between Ali and the accused to carry out a drug rip off armed robbery of Hasan. It is alleged that in the course of a struggle between Ali and Hasan in Huntly Court, Meadow Heights, the accused shot his friend Ali by mistake while trying to shoot Hasan with a shotgun, and then shot Hasan as well. Hasan died at the scene of the shooting. Ali made his way some distance from the scene with the…

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 3)

Details

AGLC: R v Wilio (Ruling No 3) [2021] VSC 726
Case: [2021] VSC 726
Decision Date: 5 November 2021

CaseChat Overview and Summary

The ruling in R v Wilio addressed a matter where the accused faced criminal charges, and the court was tasked with considering an application for the discharge of the jury. The crux of the dispute centred on the credibility of a key witness, who had expressed fear about potential harm to himself or his family if he answered questions during the trial. Although the witness did not provide explicit evidence of any threats by or on behalf of the accused, the defence argued that the jury would likely infer that the witness had been intimidated. The application for the jury's discharge was made at an early stage of the trial, and the prosecution maintained that they could effectively present their case again without significant difficulty.

The legal issues before the court were whether the jury would inevitably draw an adverse inference from the witness's fear, if any such inference was indeed inevitable, and if so, whether this would result in a prejudicial impact on the accused that could not be mitigated by judicial directions. Additionally, the court needed to assess if there was a significant need for the jury to be discharged, given the early stage of the trial and the prosecution's capacity to present their case again. The court examined the potential prejudice to the accused against the public interest in finality and the efficient administration of justice.

In ruling on the application, the court determined that there was no express evidence of any threat by or on behalf of the accused, and the witness's fear did not necessarily indicate that he had been intimidated. The court further found that the potential prejudice to the accused, if any, was not so substantial that it could not be addressed through appropriate judicial directions. Given these considerations, the court concluded that there was no high degree of need for the jury to be discharged. Therefore, the application was refused. The court's decision balanced the interests of the accused with the broader principles of justice and the administration of the legal process.

Orders