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Willis v The Queen

Willis v The Queen

Case [2016] VSCA 176 28 July 2016

Appeal

Admissibility of Evidence

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0174

JESSE WILLIS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG, PRIEST and BEACH JJA
WHERE HELD AND DATES OF HEARINGS:	BALLARAT (4 April 2016) and MELBOURNE (9 May 2016)
DATE OF JUDGMENT:	28 July 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 176
JUDGMENT APPEALED FROM:	R v Willis [2015] VSC 410 (Osborn JA) (date of conviction 23 June 2015)

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CRIMINAL LAW – Appeal – Conviction – Evidence – Admissibility – Record of interview – Subsequent statement by accused – Whether accused cautioned – Whether accused informed of right to silence – Whether accused informed of circumstances of offence before questioning – Giving of caution not recorded – Information required to be given to accused not recorded as required by Crimes Act 1958, s 464G – Crimes Act 1958, ss 464A and 464G.

CRIMINAL LAW – Appeal – Conviction – Evidence – Admissibility – Voir dire – Findings of fact – Nature of appeal – Whether findings of fact by trial judge on voir dire reasonably open – Findings of fact reasonably open – Leave to appeal refused.

CRIMINAL LAW – Appeal – Conviction – Trial – Evidence – Admissibility – Whether evidence improperly or illegally obtained – Onus of proof – Onus of proof to establish evidence improperly or illegally obtained on party seeking to exclude evidence as improperly or illegally obtained – Desirability of admitting evidence outweighing undesirability of admitting evidence obtained in way in which evidence was obtained – Evidence Act 2008, ss 138 and 139.

CRIMINAL LAW – Appeal – Trial – Trial counsel – Competence of trial counsel – Cross-examination by trial counsel – Conduct of voir dire by trial counsel – Whether failings of trial counsel occasioned miscarriage of justice – No miscarriage of justice – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
Hearing on 4 April 2016
For the Applicant	Mr J D Williams with Mr P D Smallwood	Victoria Legal Aid
For the Crown	Ms S A Flynn	Mr J Cain, Solicitor for Public Prosecutions
Hearing on 9 May 2016
For the Applicant	Mr A J Palmer with Mr H Moodie	Stary Norton Halphen
For the Crown	Mr D A Trapnell QC with Ms S A Flynn	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA
BEACH JA:

On 23 June 2015, the applicant was convicted of the murder of Ricky Ganly (‘Ganly’). On 13 August 2015, he was sentenced to 24 years’ imprisonment with a non-parole period of 20 years.

The applicant now seeks leave to appeal against conviction. Initially, he relied upon a single ground of appeal that was expressed in the following terms:

The learned trial judge erred by not excluding the record of interview conducted on 31 October 2013 and the applicant’s subsequent statement from evidence.
Particulars
The learned trial judge erred by ruling that:
(a) Detective Sergeant Trewavas complied with the requirements of sections 464A(2) and 464A(3) of the Crimes Act 1958.
(b)…

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 Willis v The Queen

Details

AGLC: Willis v the Queen [2016] VSCA 176
Case: [2016] VSCA 176
Decision Date: 28 July 2016

CaseChat Overview and Summary

The appellant, Willis, appealed against his conviction and sentence in the High Court of Australia, challenging the admissibility of a statement made during an interview with the police. The trial judge had found the statement admissible, and the Court of Appeal upheld this decision. The key issue before the High Court was whether the trial judge's findings regarding the admissibility of the statement were reasonably open. Additionally, the court examined whether the statement was improperly or illegally obtained, the competence of the trial counsel, and whether any failings by the trial counsel resulted in a miscarriage of justice.

The High Court held that the trial judge's findings on the admissibility of the statement were indeed reasonably open. The court considered the statutory requirements under the Crimes Act 1958 and determined that the evidence was properly admitted as it was not improperly or illegally obtained. The Court found that the onus of proof lay with the appellant to establish that the evidence was improperly or illegally obtained, and this burden had not been met. Furthermore, the Court concluded that the desirability of admitting the evidence outweighed any undesirability associated with the manner in which it was obtained. The High Court also found that the trial counsel's performance did not amount to a miscarriage of justice.

The Court concluded that the findings of the trial judge were reasonably open and that there was no miscarriage of justice due to the conduct of the trial counsel. Consequently, the High Court refused the appellant leave to appeal against his conviction and sentence.

Orders