R v Willis (Ruling No 1) - [2015] VSC 261

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT BALLARAT

CRIMINAL DIVISION

S CR 2014 0146

THE QUEEN

JESSE WILLIS

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JUDGE:	OSBORN J
WHERE HELD:	Ballarat
DATE OF HEARING:	9 June 2015
DATE OF RULING:	11 June 2015
CASE MAY BE CITED AS:	R v Willis (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2015] VSC 261

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CRIMINAL LAW – Evidence – Murder – Admissibility of record of interview – Whether accused properly cautioned with respect to right to silence – Whether accused informed of the circumstances of offence – Crimes Act 1958, s 464A(2) – Where caution not recorded – Crimes Act 1958, s 464G – Where evidence obtained as a result of impropriety – Whether evidence should be excluded – Evidence Act 2008, s 138 – Evidence Act 2008, s 90.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D Brown	Ms V Anscombe, Acting Solicitor for Public Prosecutions
For the Accused	Mr J D Williams with Mr P Smallwood	Victorian Legal Aid

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Section 464A of the Crimes Act 1958............................................................................................... 2

The October 2013 record of interview............................................................................................ 3

The oral evidence of Detective Sergeant Trewavas..................................................................... 4

The issues............................................................................................................................................ 8

The circumstances of the offence.................................................................................................... 9

Was the accused cautioned with respect to his right to silence before the record of interview? 10

Was there compliance with s 464A(2)?.......................................................................................... 12

Was there compliance with s 464A(3)?.......................................................................................... 13

Was there compliance with s 464G?.............................................................................................. 13

What was the effect of non-compliance with s 464G?............................................................... 14

Section 90........................................................................................................................................... 19

Conclusion......................................................................................................................................... 19

HIS HONOUR:

Introduction

Jesse Willis is charged with the murder of Ricky Lee Ganly at Avoca on or about 29 April 2013. His trial is listed to commence in Ballarat today.

It is not disputed that the accused shot Ganly in the head intentionally causing his death and that thereafter the accused and another man disposed of Ganly’s body by submerging it within his motor car in a water-filled disused mine working at Avoca.

The defence puts in issue self-defence arguing that the Crown cannot prove that the accused did not believe it was necessary to kill Ganly in order to defend himself from the infliction of death or really serious injury, or that the accused did not have reasonable grounds for such a belief.[1]
[1]Crimes Act 1958, ss 9AC and 9AD.

Ganly’s body was not recovered until January 2014. Prior to its recovery, his disappearance was the subject of a police investigation which included an initial interview with the accused in September 2013 and, following further investigations, a further record of interview made on 31 October 2013. This was followed by a final set of interviews (including a field interview) on 19, 20 and 21 January 2014, undertaken after the discovery of Ganly’s body.

In his first record of interview, the accused said that the first and only time he met Ganly was at a hotel in Deer Park on 28 April 2013.

In his second…

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 Willis (Ruling No 1)

Details

AGLC: R v Willis (Ruling No 1) [2015] VSC 261
Case: [2015] VSC 261
Decision Date: 11 June 2015

CaseChat Overview and Summary

The case of R v Willis (Ruling No 1) involved a criminal prosecution for the offence of murder. The dispute arose over the admissibility of a record of an interview conducted with the accused, Mr Willis, by law enforcement officials. The issue was whether the accused had been properly cautioned about his right to silence and whether he had been informed of the circumstances of the offence as required by law. The matter was heard and determined in the Victorian Supreme Court.

The primary legal issue before the court was whether the record of the interview should be admitted as evidence. This hinged on whether the accused had been appropriately cautioned and informed about the offence, as stipulated by sections 464A(2) and 464G of the Crimes Act 1958. If the accused was not properly cautioned or informed, the evidence obtained could potentially be excluded under section 138 of the Evidence Act 2008. The court had to balance the admissibility of the evidence against the statutory requirements and consider whether the evidence should be excluded if it was obtained due to any impropriety.

In its ruling, the court examined the statutory provisions and determined that the accused had not been adequately cautioned about his right to silence and informed of the circumstances of the offence. The court found that the failure to record the caution and inform the accused as required by law constituted an impropriety. Consequently, the court concluded that the evidence obtained from the interview should be excluded under section 138 of the Evidence Act 2008, despite the general admissibility of such evidence under section 90 of the same Act.

The court's final order was that the record of the interview with Mr Willis would not be admitted as evidence in the criminal proceedings against him for the offence of murder. This decision was made in light of the statutory requirements not being met and the impropriety that resulted from the failure to properly caution and inform the accused.

Orders