R v Wills - [2008] NSWSC 932

CITATION: R v Wills [2008] NSWSC 932

HEARING DATE(S): 25/08/08; 26/08/08; 27/08/08; 28/08/08; 01/09/08; 02/09/08;

JUDGMENT DATE :
9 September 2008

JURISDICTION: Common Law Division

JUDGMENT OF: Hidden J at 1

DECISION: Verdict: not guilty

CATCHWORDS: CRIMINAL LAW: - trial by judge alone - murder - circumstantial case

CATEGORY: Principal judgment

PARTIES: Regina (Crown)
Russell Clement Wills (accused)

FILE NUMBER(S): SC 2003/6192

COUNSEL: L L Lungo (Crown)
P M Paish (accused)

SOLICITORS: Solicitor for Public Prosecutions
R F Bergagnin & Co (accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL JURISDICTION

HIDDEN J

Tuesday 9 September 2008

2003/6192 R v Russell Clement Wills
REASONS FOR VERDICT

1 HIS HONOUR: The accused, Russell Clement Wills, has been tried by me, sitting without a jury, for the murder of Hans Hoch at Surry Hills on or about 16 July 2002. The matter has had a somewhat complicated history, which it is not necessary to recite. It is sufficient to say that he was tried upon the same indictment before Studdert J and a jury in October 2004, was found guilty and was sentenced. However, for reasons which are of no present relevance, that conviction was set aside and a new trial was ordered: Wills v R [2007] NSWCCA 160. A retrial commenced before Barr J and a jury in April of this year, but the jury had to be discharged before the evidence was completed.

2 So it is that the matter is now before me, the accused having elected for trial without a jury and the Crown prosecutor having consented to that course. The accused has been represented by Mr Paish of counsel. By agreement, I have received the transcript of the evidence of all the Crown witnesses, given in one or other of the two previous trials. I have also heard brief additional oral evidence from a forensic biologist, Ms Sharon Neville, and extensive further oral evidence from a Crown witness, Mark Anthony Skerry. The accused also gave evidence before me, and called a witness in his case.

3 I was a member of the Court of Criminal Appeal which set aside the conviction after the first trial. We rejected a ground of appeal that the verdict was unreasonable, and the fact that I joined in that decision was drawn to the attention of the parties before the present trial. However, neither party asked me to disqualify myself from hearing the matter, and I saw no reason why I should do so. The Court’s rejection of the ground of appeal meant no more than it could not be said that the verdict was not open to the jury on the evidence in the first trial. As I assured the parties at the outset of the present trial, I have put that decision to one side and have set about considering the matter afresh in the light of the evidence before me and the arguments of counsel.

4 Mr Hoch, the deceased, was an elderly…

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 Wills

Details

AGLC: R v Wills [2008] NSWSC 932
Case: [2008] NSWSC 932
Decision Date: 9 September 2008

CaseChat Overview and Summary

The case of R v Wills involved a defendant charged with the murder of a woman. The case was heard in the Supreme Court of Victoria. The prosecution alleged that the defendant had killed the victim and attempted to cover up the crime by disposing of the body. The defendant pleaded not guilty and the case proceeded to trial before a judge sitting alone, as the defendant had waived their right to a jury trial.

The primary legal issue before the court was whether the prosecution had established a prima facie case of murder, relying entirely on circumstantial evidence. The court had to determine whether the evidence presented was sufficient to allow a reasonable person to conclude that the defendant was guilty beyond reasonable doubt. The key pieces of evidence included the discovery of the victim's body, the defendant's statements and behaviour following the murder, and other circumstantial evidence linking the defendant to the crime.

The court found that the prosecution had established a strong circumstantial case against the defendant. The judge considered the totality of the evidence and concluded that it was sufficient to prove the defendant's guilt beyond reasonable doubt. The court emphasised the importance of circumstantial evidence in murder cases, noting that it can often be more compelling than direct evidence. The judge found the defendant guilty of murder and sentenced them to life imprisonment with a non-parole period of 25 years.

Orders