R v Haklar-McCarthy; R v Summerill

The Supreme Court of South Australia, constituted by Vanstone, Kelly, and Doyle JJ, considered appeals by the Crown against the sentences imposed on respondents R v Haklar-McCarthy and R v Summerill. The appeals were brought out of time, necessitating applications for extensions of time. The underlying dispute concerned the respondents' failure to fulfil an undertaking to provide truthful evidence against Patrick McCarthy and Bradley Fowler, following their own guilty pleas to assisting an offender.

The central legal issues before the Court were whether to grant extensions of time for the Crown's appeals, whether to grant permission to appeal, and whether the sentences imposed were manifestly inadequate, particularly in light of the respondents' failure to comply with their agreement to cooperate and give truthful evidence. This agreement was a crucial element of the plea bargain that led to the respondents pleading guilty to assisting an offender, in satisfaction of murder charges.

The Court reasoned that the respondents' evidence at Patrick McCarthy's retrial was deliberately untruthful in material respects, deviating significantly from their earlier detailed accounts. Specifically, Ms Summerill's evidence at the retrial omitted key inculpatory details, such as her earlier recollection of Mr McCarthy holding a cloth over Mr Varehov's mouth and her inability to recall seeing Mr McCarthy hurting or touching Mr Varehov, which was a stark contrast to her prior clear account. The Court found these omissions, when considered with other variations, indicated a deliberate attempt to lessen the inculpatory effect of her evidence. Despite the prosecutor not applying to have Ms Summerill declared hostile at the retrial, the Court concluded that the evidence presented demonstrated a failure to fulfil the undertaking to provide truthful evidence.

The Court allowed the applications for extensions of time and granted permission to appeal. It found that the sentences imposed were manifestly inadequate, given the respondents' breach of their undertaking to cooperate and provide truthful evidence, which was a fundamental basis for the Crown accepting their pleas to lesser charges. The Court therefore allowed the appeals and remitted the matters for re-sentencing.