R v Cerantonio and Ors (Ruling 16)
[2018] VSC 97
•5 March 2018
| 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 | Slades & Parsons |
For Antonino Granata | Mr C Farrington with | Patrick W Dwyer |
For Shayden Thorne | Mr S Moglia with | Doogue O’Brien George |
For Kadir Kaya | Mr D Hallowes SC with | Galbally & O’Bryan |
For Murat Kaya | Mr D Dann QC with | James Dowlsey & Associates |
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 a realistic potential connection with the alleged objective of that conduct.[2]
[1]The Queen v Cerantonio & Ors (Ruling 15) [2018] VSC 77.
[2]The Queen v Cerantonio & Ors (Ruling 15) [2018] VSC 77 at [8]-[16] & [24].
Each accused submits, and the Commonwealth Director of Public Prosecutions (“the Director”) concedes, that, for a number of reasons, the interlocutory decision is “otherwise of sufficient importance to the trial to justify its being determined on an interlocutory appeal” within the meaning of s 295(3)(b) of the CPA and that, accordingly, each application for certification should be granted.
I agree. My reasons follow.
Background
First, I shall turn to the history of this application.
In order to understand the background to this matter, these reasons should be read together not only with my reasons for the rulings under challenge but also with my reasons for rulings concerning the two previous indictments filed.[3]
[3]See The Queen v Cerantonio & Ors (Rulings 1-11) [2017] VSC 725; and The Queen v Cerantonio & Ors (Ruling 13) [2018] VSC 35.
On 19 February 2018, the Director filed over an indictment[4] charging the six accused jointly with an offence against s 119.4(1) of the Criminal Code (Cth) (“the Code”). This is the third indictment filed in this matter.
[4]The indictment is dated 12 February 2018.
In substance, it is alleged that the accused agreed to engage, and did engage, in conduct – including towing a boat to Queensland – preparatory to an intended covert departure from Australia, by use of that boat, for a foreign country (such as Indonesia), with the ultimate destination being entry to the Philippines, with the intention of engaging in a hostile activity in that country.
As they had done with respect to the previous two indictments, the accused submitted that the new indictment did not give adequate particulars of the conduct component of the alleged agreed and intended hostile activity in the Philippines. They also submitted that, because of that failure, it is impossible to determine whether there might be a realistic potential connection between the alleged agreed and intended conduct and the objective thereof.
On 28 February 2018, I ruled inter alia that those particulars are adequate and that they allege agreed and intended conduct capable of having a realistic potential connection with the alleged objective of that conduct.
This morning, each accused applied for certification for an application for leave to appeal to the Court of Appeal against those two aspects of that interlocutory decision. I heard submissions from counsel for each accused and from counsel for the Director. At the conclusion of argument, I indicated that I would grant certification but that I would announce that decision formally, together with my reasons for doing so, this afternoon.
Otherwise of sufficient importance etc
I turn now to the reasons why I accept the parties’ submission that the interlocutory decision is “otherwise of sufficient importance to the trial to justify its being determined on an interlocutory appeal” within the meaning of s 295(3)(b) of the CPA.
First, the Director has informed this Court that it is not possible, on the evidence in the brief, to identify any more precisely the alleged agreed and intended conduct in the Philippines than it has been identified in the particulars. To attempt to go any further, it is said, would be to engage in speculation. The Director accepts that, if it is correct to say that the current particularization is inadequate, an application for a permanent stay of the charge would have to succeed or a notice of discontinuance would have to be filed. Thus, it follows that an interlocutory appeal could avoid the need to conduct a trial in this matter at all.
Secondly, that trial would be long and would employ a substantial amount of resources. There are six accused. At the bar table, there are fifteen barristers, not including those who have appeared – and likely will appear – upon interlocutory matters during pre-trial proceedings and the trial proper. On current estimates, there is likely to be a minimum of a further two weeks of pre-trial argument as to matters of admissibility of evidence concerning only the one accused. While it may be that those arguments will be applied equally to all other accused, I think it is reasonable to expect that there will be a good deal more than two weeks’ worth of legal argument before a jury is empanelled. To estimate a month’s worth would be very conservative, I think. As to the trial proper, the last estimate provided was that it might be as long as three months or more. Thus, if it turns out that my ruling is wrong but went uncorrected before trial, it is likely that a total of a further four months or more of Court time – and all of the resources that go with it – will have been wasted.
Thirdly, while the law concerning the need for particulars might be regarded as well-settled, the legislation which gives rise to the charge, and which provides the context in which the matters at issue must be considered, is unusual, complex and untested.[5] The Director concedes – correctly, in my view – that the application has sufficient merit to warrant certification. Indeed, while I have ruled as I have and for the reasons I have given, I have not found the questions sought to be agitated by the accused on appeal as admitting of easy answers. Indeed, I can see how others might reach a different view from mine. This, at least in part, is a function of the unusual and complex nature of the legislation in its application to the law concerning particulars against what it is thought the evidence might show in this case. In my view, to have the guidance of an intermediate appellate court on the issues raised by the accused’s application would be important not only for the case at hand but also for future cases involving these new provisions and, therefore, for the administration of justice generally.
[5]See, e.g., my remarks in The Queen v Cerantonio & Ors (Rulings 1-11) [2017] VSC 725 at [33]-[34].
Conclusion and orders
Thus, for these reasons, I shall grant each accused’s application for certification for an application for leave to appeal to the Court of Appeal against an interlocutory decision and, in particular, my rulings:
a) that the indictment provides adequate particulars of the agreed and intended conduct in the Philippines; and
b) that those particulars allege agreed and intended conduct capable of having a realistic potential connection with the alleged objective of that conduct.
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