R v Cerantonio and Ors (Ruling No 18) - [2018] VSC 698

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
DATES OF HEARING:	24 & 30 October and 8-9 November 2018
DATE OF RULING:	15 November 2018
CASE MAY BE CITED AS:	R v Cerantonio & Ors (Ruling No 18)
MEDIUM NEUTRAL CITATION:	[2018] VSC 698

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CRIMINAL LAW – Pre-trial ruling – 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 – Whether evidence of mere fact of utterances or actions of an accused (i.e. shorn of any beliefs that may be inferred from such behaviour at time of occurrence) is admissible in proof of belief, motivation or intention of that accused at time of charged conduct – Evidence inadmissible on that basis because either irrelevant or impossible to use it in the manner sought – Criminal Code (Cth), ss 11.2A & 119.4; Evidence Act 2008 (Vic), ss 55, 56, 59, 60, 95, 97, 101, 135 & 137; Ahern v The Queen (1988) 165 CLR 87; Elomar v The Queen (2014) 300 FLR 323; R v Karabegovic (Ruling No 3) [2015] VSC 641; Higgins (a pseudonym) v The Queen [2016] VSCA 47; Parachoniak v The Queen [2017] VSCA 347; R v Azari (No 7) [2018] NSWSC 1680.

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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 J Williams 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

On this pre-trial application to exclude evidence, I am asked to rule on the following very narrow question. The Crown submits that evidence of the mere fact of certain utterances or actions by the accused – i.e. utterances or actions completely shorn of any belief or state of mind of that accused as may be inferred from such utterances or actions at the time of their occurrence – is admissible against that accused in proof of the belief, motive or intention that he held at the time of entry into the alleged agreement the subject of…

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 698
Decision Date: 15 November 2018

CaseChat Overview and Summary

In the matter of R v Cerantonio and Ors (Ruling No 18), the defendants were charged jointly with engaging in conduct preparatory to entering a foreign country with the intention of engaging in hostile activities. The case was heard by the County Court of Victoria, presided over by Judge McDonald. The defendants challenged the admissibility of evidence intended to demonstrate their beliefs, motivations, or intentions at the time of the charged conduct. Specifically, the defendants argued that evidence of mere utterances or actions, stripped of any inferred beliefs, was inadmissible to prove their state of mind at the relevant time.

The court was tasked with determining whether such evidence could be used to establish the state of mind of the defendants at the time of the alleged conduct. The defendants submitted that such evidence was either irrelevant or impossible to use in the manner sought by the prosecution. The court needed to weigh the admissibility of this evidence under the Criminal Code (Cth), the Evidence Act 2008 (Vic), and relevant case law, including Ahern v The Queen, Elomar v The Queen, R v Karabegovic (Ruling No 3), Higgins v The Queen, Parachoniak v The Queen, and R v Azari (No 7).

The court concluded that the evidence in question was inadmissible as it did not meet the legal standards for relevance or admissibility. The court held that such evidence could not be used to establish the state of mind of the defendants at the time of the charged conduct. Consequently, the court ruled that the evidence was either irrelevant or impossible to use in the manner sought by the prosecution. This decision was grounded in the principle that evidence of mere utterances or actions, devoid of any inferred beliefs, cannot be relied upon to prove the state of mind of an accused at the time of the alleged conduct. The ruling effectively excluded the contested evidence from the trial, setting a precedent for similar cases.

Orders