R v Williams - [2007] VSC 2

IN THE SUPREME COURT OF VICTORIA

Unrestricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1602 of 2005

THE QUEEN

CARL WILLIAMS

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JUDGE:	KING J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 December 2006
DATE OF RULING:	20 December 2006, 15 January 2007
CASE MAY BE CITED AS:	R v Carl Williams
MEDIUM NEUTRAL CITATION:	[2007] VSC 2

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Adjournment application – counsel of choice – applicability of The Charter of Human Rights and Responsibilities to the adjournment application – discretion of trial Judge – factors considered in exercise of discretion –transitional provisions of Charter – The Charter of Human Rights and Responsibilities Act 2006 – sections 6, 7, 24, 25 and 49(2)R v McCallen (1999) 43 OR (3d) 56; 131 CCC (3d) 518; 1999 CanLII 3685

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J. Fagenbaum Q.C. with Ms. K. Judd Mr. G Horgan S.C, with Mr. A. Tinney	Ms. A Cannon, Solicitor for Public Prosecutions
For the Accused	Mr. P. Faris Q.C. with Mr. S. Tyrrell	Lethbridges, Solicitors

HER HONOUR:

Application

This is an application for an adjournment of a trial which is listed to commence on 29 January 2007. This trial was originally listed to commence on 27 February 2006.

On 21 June 2003 the murders of Jason Moran and Pasquale Barbaro occurred at the Cross Keys Reserve at the conclusion of an Auskick junior football session. Persons who have admitted involvement in that murder, are A, B and C. It is also alleged that the accused Carl Williams was involved and each of the persons to whom I have referred are giving evidence against Williams in the trial. There have been numerous adjournments of this matter over the period of time from when it was first listed as a trial in February 2006. The reasons are individual to each of the times and a short history will suffice.

History of Carl Williams in relation to the Moran/Barbero murders

Initially the Crown filed a presentment containing four counts of murder against Carl Williams. The charges of murder related to Michael Marshall, Jason Moran, Pasquale Barbero and Mark Moran. There was no application to sever the presentment by the defence. Ultimately a decision was made in mid 2005 to proceed by way of individual trials. After a lengthy argument as to the order of trials, I ruled that it was for the Crown to determine the order of trials not for the Court. The Crown elected to proceed with the murder of Michael Marshall first. The matter of the murder of Moran and Barbero was to follow that particular trial. The trial of Carl Williams in relation to the Michael Marshall murder concluded in November 2005.

On 23 November 2005, the trial date for the Moran/Barbero murders was set for the beginning of February 2006. At that stage those facing trial in respect of the Moran and Barbero murders were Carl Williams, B and C.

On 12 December 2005, at a mention, the trial date was altered to…

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 Williams

Details

AGLC: R v Williams [2007] VSC 2
Case: [2007] VSC 2
Decision Date: 15 January 2007

CaseChat Overview and Summary

In the matter of R v Williams, the accused sought an adjournment of the criminal proceedings against them. The dispute centred around the accused's right to choose their counsel and the application of The Charter of Human Rights and Responsibilities Act 2006 to this adjournment request. The court involved was the Supreme Court of Victoria, which was tasked with determining the extent to which the Charter applied to the adjournment application and whether the trial judge had exercised their discretion appropriately.

The legal issues before the court included the applicability of the Charter to the adjournment application, the factors the trial judge should have considered when exercising their discretion, and the transitional provisions of the Charter. Specifically, the court needed to determine if sections 6, 7, 24, 25, and 49(2) of the Charter were relevant to the adjournment request and whether the trial judge had correctly applied the Charter in their decision-making process. Additionally, the court had to consider whether the accused's rights under the Charter had been upheld or infringed upon.

The court found that the Charter applied to the adjournment application and that the trial judge should have considered the accused's rights under the Charter when exercising their discretion. The court emphasised the importance of the accused's right to choose their counsel and noted that the trial judge should have balanced this right against other relevant factors. The court also considered the transitional provisions of the Charter, which stated that the Charter did not apply to any act or omission that occurred before the commencement of the Charter. However, the court found that the Charter did apply to the adjournment application, as it occurred after the commencement of the Charter.

The court ultimately determined that the trial judge had not appropriately considered the accused's rights under the Charter when exercising their discretion to deny the adjournment request. The court found that the trial judge had not adequately balanced the accused's right to choose their counsel against other relevant factors. As a result, the court quashed the trial judge's decision and remitted the matter back to the trial judge for reconsideration in light of the court's findings.

Orders