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)…
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- AGLC
- Willis v the Queen [2016] VSCA 176
- Case
- [2016] VSCA 176
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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