R v Cerantonio and Ors (Ruling 16) - [2018] VSC 97

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0078; S CR 2017 0079
S CR 2017 0080; S CR 2017 0081
S CR 2017 0082; S CR 2017 0104

Between:

THE QUEEN

-and-

ROBERT EDWARD CERANTONIO
PAUL JAMES DACRE
ANTONINO ALFIO GRANATA
SHAYDEN JAMIL THORNE
KADIR KAYA &
MURAT KAYA

Accused
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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 March 2018
DATE OF RULING:	5 March 2018
CASE MAY BE CITED AS:	R v Cerantonio & Ors (Ruling 16)
MEDIUM NEUTRAL CITATION:	[2018] VSC 97

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CRIMINAL LAW – Application for certification for application for leave to appeal against interlocutory decision – Six men charged jointly with offence of engaging in conduct preparatory to offence of entering a foreign country with intention of engaging in a hostile activity in that country – Court ruled, over objection of accused, that particulars of (third) indictment adequate with respect to alleged agreed and intended conduct in the Philippines – Whether interlocutory decision “otherwise of sufficient importance to the trial to justify its being determined on an interlocutory appeal” – DPP concedes that, if proposed appeal determined in accused’s favour, prosecution may be discontinued or permanent stay may be granted, thereby avoiding long trial for six accused – DPP concedes application not without merit – Interlocutory decision concerns untested provisions of some complexity – Application for certification granted – Criminal Procedure Act 2009 (Vic), s 295; The Queen v Cerantonio & Ors (Ruling 15) [2018] VSC 77; The Queen v Cerantonio & Ors (Ruling 13) [2018] VSC 35; The Queen v Cerantonio & Ors (Rulings 1-11) [2017] VSC 725.

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Appearances:	Counsel	Solicitors
For the Crown	Mr R Maidment QC with Ms R Sharp and Ms A Peek	Solicitor to Commonwealth Director of Public Prosecutions
For Robert Cerantonio	Mr M Cahill SC with Dr G Boas	Stary Norton Halphen Criminal Lawyers
For Paul Dacre	Mr J McMahon SC with Ms G Morgan	Slades & Parsons Criminal Lawyers
For Antonino Granata	Mr C Farrington with Mr C Terry	Patrick W Dwyer Barristers & Solicitors
For Shayden Thorne	Mr S Moglia with Ms G Connelly	Doogue O’Brien George Barristers & Solicitors
For Kadir Kaya	Mr D Hallowes SC with Ms F Todd	Galbally & O’Bryan Defence Lawyers
For Murat Kaya	Mr D Dann QC with Mr M Goldberg	James Dowlsey & Associates Criminal Law

HIS HONOUR:

Overview

Each of the six accused applies, pursuant to s 295(2) of the Criminal Procedure Act 2009 (Vic) (“the CPA”), for certification for an application for leave to appeal to the Court of Appeal against an interlocutory decision.

The interlocutory decision against which the accused wish to appeal concerns two aspects of my most recent pre-trial ruling in this matter[1] – namely (a) that, with respect to the (third) indictment, the particulars of the agreed and intended conduct in the Philippines are adequate; and (b) that those particulars allege agreed and intended conduct capable of having…

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.

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Details

Case: [2018] VSC 97
Decision Date: 5 March 2018

CaseChat Overview and Summary

Six men, Cerantonio and others, are before the court facing charges of planning to enter a foreign country with the intent to engage in hostile activities. The matter before the court is an application for certification to appeal an interlocutory decision that deemed the particulars of a third indictment sufficient. The applicants argue the particulars are inadequate, while the Director of Public Prosecutions (DPP) contends that if the appeal is successful, the prosecution may be terminated or a permanent stay may be granted, thereby sparing the accused from a lengthy trial.

The central legal issue before the court was whether the interlocutory decision was of sufficient importance to warrant an appeal. The court considered the untested provisions of some complexity involved in the decision, and whether the decision had implications that could affect the fairness of the trial or the outcome of the case. The applicants submitted that the particulars were inadequate and that the interlocutory decision had significant implications for their trial. The DPP, while opposing the application, conceded that the appeal had some merit and that the interlocutory decision could potentially impact the prosecution's case.

The court held that the interlocutory decision was of sufficient importance to warrant an appeal, noting that the untested provisions involved some complexity and that the decision had significant implications for the applicants' trial. The court accepted that if the appeal were determined in favour of the applicants, the prosecution might be discontinued or a permanent stay could be granted, thereby avoiding a lengthy trial. The court also took into account the DPP's concession that the application was not without merit. The court granted the application for certification, allowing the applicants to appeal the interlocutory decision.

The court's final order was that the application for certification was granted, permitting the applicants to appeal the interlocutory decision regarding the adequacy of the particulars of the third indictment. The court's ruling recognised the importance of the untested provisions and the potential impact on the applicants' trial, leading to the decision to allow the appeal.

Orders