White v The Queen - [2011] VSCA 441

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0571

WALLY RAWIRI WHITE
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH and HARPER JJA and ROBSON AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 July 2011
DATE OF JUDGMENT:	16 December 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 441
JUDGMENT APPEALED FROM:	R v White [2008] VSC 39 (Whelan J) (17 November 2007 (date of verdict/conviction), 28 February 2008 (date of sentence))

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CRIMINAL LAW – Conviction – Murder and armed robbery – Security guard shot and killed during the course of an armed robbery – Fresh evidence – Whether trial judge erred in directing the jury about the standard of proof – Whether trial judge failed to direct on all possible verdicts – Whether trial judge gave sufficient directions in relation to consciousness of guilt – Whether jury should have been discharged – Application for leave to appeal against conviction refused.

CRIMINAL LAW – Sentence – Sentenced to a total effective sentence of 26 years’ imprisonment with a non-parole period of 20 years – Whether failure to discount or the extent of cumulation amounted to double punishment – Whether total effective sentence, cumulation and non-parole period manifestly excessive – Parity – Application for leave to appeal against sentence refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M W S Duckett	Leanne Warren & Associates
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

I have read the reasons in draft of Harper JA and agree that the applications for leave to appeal against conviction and sentence should both be refused.

HARPER JA:

The issues and the prosecution case.

The Crown case against the applicant, Wally White, reads like a classic western – without the horses, and with no hint of romance. On the evening of 28 November 2004, at approximately 11.40pm, White and two co-offenders, Tame Kohunui and his brother John, arrived at the Freccia Azzurra Club in Springvale Road, Keysborough. They were not welcome. They did not come as members, or even guests. They were confronted before they entered the premises by a security guard. Knowing that he would be there, and that he would not be pleased to see them, White brought with him a high powered rifle, comparable to an AK 47. The Kohunui brothers were armed with knives; not everyday kitchen knives, but a samurai sword half a metre in length, and a curved dagger. Nobody at the Club that night could have been long unaware of the significance of the events which were unfolding.

To some it would have been a nightmarish repetition of an event earlier that month. On 2 November 2004, the Kohunui brothers and a third man, Marc Herbert, had robbed the Club of about $10,000. This had at least three effects. First, it kindled the brothers’ enthusiasm for this method of raising funds. Secondly, it induced the Club to hire an armed security guard, Jason Gully. Thirdly, while the brothers knew…

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 White v The Queen

Details

AGLC: White v The Queen [2011] VSCA 441
Case: [2011] VSCA 441
Decision Date: 16 December 2011

CaseChat Overview and Summary

The appellant was convicted of murder and armed robbery in the Supreme Court of Victoria. The victim, a security guard, was shot and killed during the course of an armed robbery. The appellant applied for leave to appeal against both his conviction and sentence. The appeal against conviction centred on whether the trial judge erred in directing the jury about the standard of proof, failed to direct on all possible verdicts, and did not sufficiently direct in relation to consciousness of guilt. The appeal against sentence focused on whether the total effective sentence, cumulation, and non-parole period were manifestly excessive.

The court considered whether the trial judge erred in directing the jury on the standard of proof and whether the trial judge failed to direct on all possible verdicts. The court held that the trial judge's directions were not in error and that the jury was properly directed on all possible verdicts. The court also considered whether the trial judge gave sufficient directions in relation to consciousness of guilt. The court held that the trial judge did not err in this respect and that the jury was properly directed on the issue of consciousness of guilt. The court further considered whether the jury should have been discharged. The court held that there was no basis for discharging the jury and that the trial judge did not err in this respect.

The court found that the appellant had not made out a case for leave to appeal against his conviction. The court found that the trial judge's directions to the jury were not in error and that the jury was properly directed on all possible verdicts. The court found that the trial judge gave sufficient directions in relation to consciousness of guilt and that there was no basis for discharging the jury. The court held that the appellant's appeal against conviction should be dismissed.

The court also considered the appeal against sentence. The court found that the total effective sentence, cumulation, and non-parole period were not manifestly excessive. The court found that the sentence was proportionate to the gravity of the offence and that there was no failure to discount or double punishment. The court held that the appellant's appeal against sentence should be dismissed. The court refused the appellant leave to appeal against both his conviction and sentence.

Orders