R v Cerantonio (Ruling No 19) - [2018] VSC 725

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:	20 November 2018
DATE OF RULING:	22 November 2018
CASE MAY BE CITED AS:	R v Cerantonio & Ors (Ruling No 19)
MEDIUM NEUTRAL CITATION:	[2018] VSC 725

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CRIMINAL LAW – Application by Crown 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 Crown, that 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 not admissible, against that accused, in proof of belief, motivation or intention of that accused at time of charged conduct – Court left open other bases of admissibility of same evidence to be argued and ruled on – Whether interlocutory decision “otherwise of sufficient importance to the trial to justify its being determined on an interlocutory appeal” – Whether “the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case” – Whether application without merit – Whether application misconceived – Whether application premature – Application for certification refused – Criminal Procedure Act 2009 (Vic), s 295; The Queen v Cerantonio & Ors (Ruling 18) [2018] VSC 698.

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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

The Crown 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 Crown wishes to appeal concerns my most recent pre-trial ruling in this matter (“Ruling 18”).[1] In particular, I ruled that evidence of the mere fact of certain utterances or actions by an accused (i.e. utterances or actions completely shorn of any belief or state…

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 R v Cerantonio (Ruling No 19)

Details

AGLC: R v Cerantonio (Ruling No 19) [2018] VSC 725
Case: [2018] VSC 725
Decision Date: 22 November 2018

CaseChat Overview and Summary

In R v Cerantonio (Ruling No 19), the Crown sought certification to appeal an interlocutory decision in a case involving six men charged with engaging in conduct preparatory to entering a foreign country with the intention of engaging in a hostile activity. The respondents objected to the Crown’s application. The legal issues before the court were whether the interlocutory decision was of sufficient importance to warrant an appeal, whether the evidence, if ruled inadmissible, would substantially weaken the prosecution case, and whether the application was without merit, misconceived, or premature.

The court found that the interlocutory decision was not of sufficient importance to justify an interlocutory appeal. The ruling that the mere fact of utterances or actions was not admissible to prove belief, motivation, or intention was not final and did not preclude the Crown from adducing other evidence. The court left open the possibility of other bases of admissibility for the same evidence to be argued and ruled on. The Crown’s application for certification was refused on the basis that it was premature and misconceived. The court held that the evidence, if ruled inadmissible, would not eliminate or substantially weaken the prosecution case.

The court concluded that the Crown’s application for certification was without merit. The interlocutory decision was not sufficiently significant to warrant an appeal, and the Crown had not demonstrated that the evidence in question was crucial to the prosecution case. The application was deemed premature as the court had not yet ruled on the admissibility of the evidence in question. Furthermore, the court found the application to be misconceived as it did not properly address the legal issues at hand. The final order was that the application for certification was refused.

Orders