R v Willis (Ruling No 3) - [2015] VSC 272

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:	11 June 2015
DATE OF RULING:	12 June 2015
CASE MAY BE CITED AS:	R v Willis (Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2015] VSC 272

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PROCEDURE – Application for adjournment – Where accused brought into courtroom handcuffed in view of jury pool – Where pre-trial publicity – Whether real risk that jury would be unfairly prejudiced by media reports.

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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

The limited question......................................................................................................................... 1

The further application..................................................................................................................... 1

The prosecution position.................................................................................................................. 5

The relevant principles..................................................................................................................... 5

The threshold question..................................................................................................................... 6

Conclusion......................................................................................................................................... 10

HIS HONOUR:

Application is made on behalf of the accused that the trial of this matter at Ballarat be adjourned to 27 July 2015, when the Court has a three week window of availability for an adjourned circuit hearing.

The application is made on two bases. First, a limited basis arising out of the manner in which the accused was brought into court this morning. Secondly, a more extended basis relating to pre-trial publicity which has occurred as a result of reporting in the Courier newspaper this week.

The limited question

This morning as a result of works being undertaken in the police cells the accused was brought into the courtroom via the front door to the building, through the ground floor lobby, up the public stairway and in through the door giving the public access to court number 5 in which I am sitting.

This occurred at approximately 10:00 am when coincidentally the jury panel had been instructed to assemble at the court.

The consequence was that the accused was paraded past potential jurors whilst handcuffed and accompanied by police officers marshalling him through the building.

This should not have occurred but it is readily remediable. A new panel can be convened on Monday and, if the trial is to proceed in Ballarat during this circuit, that is the course which should be followed in order to avoid the risk of prejudicial perceptions on the part of potential jurors.

The further application

The application for adjournment to late July is further made on the basis of two reports which have appeared this week in the local newspaper.

On Tuesday this week (9 June 2015) Hutchison, a man initially charged on a joint indictment with the accused, pleaded guilty to an amended separate indictment charging an attempt to pervert the course of justice, constituted by assisting Willis dispose of the body of Ganly and a car belonging to him, knowing that Willis had unlawfully killed Ganly.

In addition, I heard argument on the same day concerning the admissibility of the accused’s second record of interview[1] and of tendency evidence sought 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 Willis (Ruling No 3)

Details

AGLC: R v Willis (Ruling No 3) [2015] VSC 272
Case: [2015] VSC 272
Decision Date: 12 June 2015

CaseChat Overview and Summary

In R v Willis, the accused faced charges related to serious criminal activity. The case was heard in the Supreme Court of Victoria, where an important procedural issue arose. During a pre-trial hearing, the accused was brought into the courtroom handcuffed, which occurred in the presence of the jury pool. This event coincided with significant pre-trial publicity surrounding the case, raising concerns about potential prejudice among prospective jurors. The defence argued that the combination of these factors could lead to a real risk of unfair prejudice, potentially impacting the accused's right to a fair trial.

The court had to determine whether the accused's presence in handcuffs and the pre-existing media coverage created a situation where the jury might be unfairly swayed, thus requiring an adjournment to mitigate any prejudicial effects. The legal issues centred on whether the accused's human rights were compromised and whether the court's procedures could be altered to protect the integrity of the trial. The court needed to balance the principles of open justice and the presumption of innocence with the need to ensure a fair trial.

After considering the evidence and arguments presented, the court ruled that the combination of the accused's appearance in handcuffs and the extensive pre-trial publicity did indeed pose a real risk of unfair prejudice. The court found that these factors could taint the jury pool, making it necessary to take steps to preserve the fairness of the trial. Consequently, the court granted an adjournment to implement measures aimed at reducing the potential for prejudice. This included instructions to the jury pool to avoid media coverage and to ensure that the accused would not be handcuffed in their presence in future proceedings.

Orders