R v Wilio (Ruling No 3)
[2021] VSC 726
•5 November 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0212
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| 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 assistance of the accused, and then died.
[1]R v Wilio (Ruling No 1) [2021] VSC 71R; R v Wilio (Ruling No 2) [2021] VSC 606R.
On the prosecution case, Ibby was a witness to the shootings, having made his observations from an area of parkland at the end of Huntly Court. He made a statement to the police identifying the accused as the shooter. He gave evidence at the committal hearing in which he attested to the truthfulness of the statement and was cross-examined at length by Mr Chernok on behalf of the accused.
Background to discharge application
Ibby commenced his evidence on 3 November 2021 with the assistance of an intermediary who had earlier been appointed by the Court in view of the cognitive impairment of Ibby. The evidence of Ibby did not proceed far on 3 November before the trial was adjourned until 4 November 2021.
On the morning of 4 November 2021, before giving any evidence before the jury, Ibby left the room from which evidence was to be taken (‘the video-link room’). He was said to be in an agitated state at the time. The jury was sent away for the morning. The witness was located by the police informant and brought back to the video-link room.
I then spoke with the witness in the absence of the jury. He indicated that he would not answer any questions asked of him in the trial. He said that he would remain mute. As he put it, ‘I’ll be shutting my mouth. For my safety – for my safety – my own family’s safety in the community, I’m not jeopardising that. No disrespect’.[2]
[2]Transcript 285.
The witness indicated that he had received legal advice on the course he was proposing to follow. He acknowledge that a term of imprisonment could be the result.
Still in the absence of the jury, the witness went on to say:
After all this, you guys don’t care about my family, about my safety. Youse care about closing this case and making it over. I care about my family and my safety. That’s it. I don’t care about this court case. I don’t care about whoever is in this courtroom. I care about myself and my family and I will not speak a word. That’s it.[3]
[3]Ibid 286-7.
In discussions in the absence of the jury and the witness, it was agreed between counsel that the proper course on the return of the witness would be for him to be questioned by Mr Gibson in the presence of the jury. If he maintained his position, he should be directed by me that he is required to answer questions. Should he continue to refuse to answer, he should be warned by me that he may be charged with contempt of Court.
Ibby was recalled to the witness box in the afternoon in the presence of the jury. In response to a number of questions by Mr Gibson, the witness, true to his word, remained mute. Having been directed by me of the requirement to answer questions, Ibby made it clear he could hear the questions. He stated, ‘I’m not gonna answer anything that’s gonna put my family and me at risk. So I’m sorry, your Honour, I can’t’.[4]
[4]Ibid 305.
Questioning from the prosecutor continued, with the witness maintaining his silence. When I asked him if he understood the consequence of his position would be that he would be at risk of being charged with contempt of court, he said, ‘I understand that I’m at risk at (sic) getting my family and me hurt because of you guys wanting some information and I’m not taking it as a chance’.[5]
[5]Ibid 306.
He then confirmed that he understood that if he refused to answer questions which he had been directed to answer, he may find himself charged with contempt of court.
Having been informed by me that he was still bound by the subpoena, with the assistance of the intermediary, the witness requested a break to enable him time to have a cigarette and reflect upon his course. He was excused from the Court.
The discharge application
Mr Chadwick based his application for a discharge on the passages I have italicised in [12] and [13] above. He submitted that whilst in the earlier session in the absence of the jury, the witness had referred to his safety in the community, in the latter statements in front of the jury, he had introduced, in a non-responsive way, his desire not to put his family at risk, and the prospect of him or his family getting hurt as a result of his answering questions.
Mr Chadwick submitted that these statements went beyond what the witness had earlier intimated in the absence of the jury. He submitted that the clear implication of the statements of the witness was that he had received some form of threat communicated by or on behalf of the accused that if he, the witness, gave evidence, he or his family would be hurt. He submitted that that would be the only reasonable conclusion the jury could come to. This would be highly prejudicial to the accused, and the prejudice would be incapable of being remedied by the giving of directions to the jury as that would simply highlight the problem and make it worse.
Mr Chadwick submitted that considering the early stage of the trial and the degree of prejudice attaching to the statements, the situation would meet the high degree of need test in R v Boland.[6]
[6][1974] VR 849 (‘Boland’).
In submissions on 5 November 2021 made with the benefit of the transcript, Mr Chadwick elaborated on the reasons why a discharge was warranted by reference to the six factors set out in the Victorian Criminal Procedure Manual[7] as being relevant to such applications.
[7]Judicial College of Victoria, Chapter 11.10.3.
He submitted that the incident was a serious one and well capable of affecting the outcome of the trial because of its capacity to affect the view the jury could take of the evidence of Ibby by engendering sympathy for him and to affect also the view of the jury as to the accused and his defence.
Mr Chadwick relied upon the early stage of the trial as being a matter pointing in favour of a discharge. There would be no difficulty in the prosecution presenting its case for a second time. Whilst the conduct in question was not deliberate, the problematic answers were non-responsive ones.
As for the likely effectiveness of judicial directions, Mr Chadwick submitted that directions aimed at dealing with the difficulty would only serve to highlight the issue, and would be ineffective.
The prosecution submissions
Mr Gibson urged the Court to consider the impugned answers of the witness in the context of his position in the case. He is alleged to be an eye witness to the shooting of two men by a man whom he did not know. He has numerous prior convictions and has been in gaol more than once. The milieu in which he operates and the cultural issues attaching to that milieu in respect of people who ‘lag’ would be well understood by the jury.
Dealing with the seriousness of the incident, Mr Gibson submitted that the witness had said nothing to indicate the accused had made any threat to him. Nothing about what he said ‘directly attaches to the accused man’.[8] The concerns of the witness were ‘expressed in a more generalised sense’.[9]
[8]Transcript 348.
[9]Ibid 349.
In respect of the stage reached in the proceedings, this was undeniably early, but nonetheless the trial has been going for a week, there would be difficulties in recommencing the trial in the current COVID-19 times, and the accused waited for over 2 ½ years for his trial to start. Furthermore, because of the early stage and what is yet to come, this incident would be pushed well into the background by the time the jury come to deliberate, and they would not need to be provided with transcript of the impugned evidence.
In respect of the capacity of the incident to affect the outcome of the trial, Mr Gibson submitted that what Ibby said about his fears would be unlikely to enhance his credibility. Nor would it excite sympathy for him in the eyes of the jury. In any event, the jury would be instructed to put aside any feelings of sympathy or prejudice in assessing the evidence.
It could not be said, submitted Mr Gibson, that the conduct of the witness in giving the evidence in issue was deliberate. This was no attempt to sabotage the trial, but rather, evidence given by a witness under pressure in explanation for his refusal to cooperate.
Mr Gibson submitted that the concerns raised by the evidence would be amenable to correction by simple directions of law. He submitted that the whole system of trial by jury depends upon juries being willing to follow judicial directions given to them.
Mr Gibson, referring the Court to the principles relating to discharge applications as discussed in Boland and Carson v The Queen,[10] submitted that a high degree of need to discharge the jury had not arisen in this case, and the application should be refused.
[10][2019] VSCA 317 (‘Carson’).
The law
The law is very clear in respect of applications for the discharge of a jury. As stated by the Full Court of the Supreme Court in Boland:
The power of a trial judge to discharge a jury when some incident occurs during a trial which may adversely affect its fairness depends for its exercise upon the principle stated in Winsor v R (1866) LR 1 QB 390. The principle is really one of necessity. There must be evident "a high degree of need for such discharge", that high degree being "such as in the wider sense of the word might be denoted by necessity": per Erle, CJ, at p. 394.[11]
[11]Boland 866.
The Court of Appeal in R v Miller[12] described the discharge of a jury without verdict as ‘a major and serious step’ which can only be taken when the above test is satisfied.[13]
[12](2000) 112 A Crim R 328.
[13]Ibid [18].
In Crofts v The Queen,[14] the High Court, dealing with a case concerning sexual offending in which previously excluded evidence of offending outside the scope of the charged events emerged from the complainant in re-examination by the prosecutor, stated:
No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.[15]
[14](1996) 186 CLR 427 (‘Crofts’).
[15]Ibid 440.
Although in the minority as to the result of the above ground, Dawson J had the following to say in his judgment, which in this respect did not conflict with the judgment of the majority:
Whether or not a jury should be discharged by reason of some incident which occurs during the course of a trial is a matter within the trial judge's discretion. But it is a discretion which is to be exercised in favour of a discharge only when that course is necessary to prevent a miscarriage of justice. It is in that sense that it has been said that the underlying principle is that of necessity and that "a high degree of need for such discharge" must appear before a discharge will be ordered. When a trial judge's refusal to discharge a jury is called in question, it must be borne in mind that he or she is ordinarily in a better position than an appeal court to assess whether, having regard to the course which the trial has taken and the atmosphere in which it has been conducted, any prejudice may be dispelled by a clear warning to the jury.[16]
[16]Ibid 432.
As the matter was put by the Court of Appeal in Benbrika v R:[17]
As the judge rightly observed, the principle established in Boland, and approved in Crofts, places responsibility on a trial judge to determine, in light of the nature of the trial and the extent of the prejudice caused by the improper disclosure of prejudicial material, whether it is necessary to discharge the jury in the interests of ensuring a fair trial. Consequently, as the High Court said in Crofts, there are no rigid rules to govern the outcome of an application for such a discharge.[18]
[17](2010) 29 VR 593.
[18]Ibid [235].
The above principles have been confirmed by the Court of Appeal in a number of more recent decisions.[19]
[19]See, for example, Carson v The Queen [2019] VSCA 317, [90]; Abukar & Abdi v The Queen [2021] VSCA 238, [42]-[45].
Analysis
I note at the outset that in the evidence he gave as to the fear he holds of harm befalling himself or his family should he assist the prosecution, Ibby did not suggest or imply that any threat had been made to him by any person, less still by anyone connected with the accused. I accept the prosecution contention that his concerns were expressed in general terms.
In my view, it is important in assessing the results of the admittedly non-responsive answers of the witness which led to the discharge application, to bear in mind the context in which he gave the evidence, and the circumstances which apply to him, as will be known by the jury when they come to assess his evidence. Ibby is a person with a long criminal history who has served a number of terms of imprisonment. He inhabits a world in which the strongly negative feelings held by many towards those who would cooperate with law enforcement authorities or assist in the prosecution of offenders are well known. For this reason alone, Ibby may well be considered to have every reason to be concerned and fearful about the consequences of being seen to cooperate in the trial. In addition, on the prosecution case as it will be understood by the jury, the witness was present at the brutal shooting of two people in the course of an armed robbery gone wrong. The alleged perpetrator, the accused, was a person who was unknown to Ibby, and, by virtue of having been the person who allegedly brought the loaded shotgun to the scene, may be seen as being almost entirely responsible for a brutal and unnecessary crime. There may be good reason for the witness to be fearful of the accused in those circumstances, notwithstanding the complete lack of evidence that any threat has been made to the witness by or on behalf of the accused.
In the circumstances, the submission of Mr Chadwick to the effect that the jury would necessarily conclude that the expressed fear of the witness for the safety of himself and his family was the result of some threat made on behalf of the accused cannot be accepted. As a result, the answers given by the witness do not create the substantial prejudice relied upon by Mr Chadwick by virtue of some enhancement to the credit of the witness or the creation of ill will in the eyes of the jury for the accused and his defence.
The early stage of the trial at which the discharge application was made is a matter of relevance, but the fact is that the trial had proceeded with the jury for a week by the time of the application and it would have been no small thing to bring this trial to an end at that stage. Whilst of course the prosecution would be able to present the case again, a long delay preceded the commencement of the trial, and if the jury was discharged, some further delay would be inevitable in light of the current limitations imposed on the justice system by the COVID-19 pandemic. Having said these things, there is no doubt that if, to my mind, the discharge of the jury was necessary in order to prevent a miscarriage of justice, the sort of practical considerations referred to above would not have prevented the application succeeding.
Another matter flowing from the early stage of the trial at which the irregularity occurred was the fact that there was much to unfold before the jury would be required to assess the evidence of Ibby. Weeks would pass and many witnesses would be called. The jury would not need to be provided with the transcript of the problematic answers by the witness. The impugned evidence would be put well into the background by the time the jury retired to deliberate.
As already indicated, I do not believe the impugned evidence possessed the sting attributed to it by Mr Chadwick. However, even if it did create some potential prejudice to the accused’s cause, I believe such prejudice would be amenable to being substantially mitigated by appropriately crafted directions of law. Notwithstanding the fact that since I ruled against the discharge application, the witness has, thus far, shown himself to be more willing to answer questions than had earlier seemed likely, directions of law will be necessary to ensure the jury approach the assessment of his evidence fairly to the accused. If there is a residual concern that the jury’s memory of the explanation the witness gave on 4 November 2021 for his unwillingness to answer questions may create the risk of prejudice to the accused, it would be possible to fashion directions, with the assistance of the parties, to minimise that risk. There is no reason in my view why such directions would not be heeded by the jury. Of course, they would have much to think about when considering the evidence of Ibby in the context of the overall prosecution case. There would be no reason to suppose that those two brief pieces of evidence by the witness in explanation for his then position, which as it turned out, was a not a position which he maintained, would assume any importance in the minds of jurors, especially as they would be told to disregard them.
Having considered the matters which led to the discharge application in the overall context of the case and the position of the witness as it will be understood by the jury, and bearing in mind the law applicable to applications for the discharge of a jury, I am not satisfied that there is the necessary high degree of need for a discharge of the jury in this case. I will be happy to discuss at an appropriate time whether, and if so, what directions should be given to the jury to mitigate what small risk there might be that the evidence given by the witness might prejudice the fair trial of the accused.
Conclusion
For the reasons stated above, the defence application for the discharge of the jury was refused.
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