R v Sonnet
[2011] VSC 97
•22 March 2011
| IN THE SUPREME COURT OF VICTORIA | Not restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1443 of 2005
| THE QUEEN | |
| v | |
| SEAN JASON SONNET | Accused |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 March 2011 | |
DATE OF RULING: | 22 March 2011 | |
CASE MAY BE CITED AS: | R v Sonnet | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 97 | |
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CRIMINAL LAW – Admissibility of depositions – section 65(3) Evidence Act 2008 – Re-trial – Evidence earlier admitted – Miscarriage of justice – Court of Appeal judgment under Evidence Act1958 – Whether different test for admissibility – Effect of appellate judgment – Nature of original miscarriage of justice – Loss of a fair chance of acquittal – Whether Evidence Act 2008 changes binding effect of appellate judgment – Application by prosecution to admit depositional evidence refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B. Kissane | Office of Public Prosecutions |
| For the Accused | Mr M. Kowalski | Marich Legal Pty Ltd |
HIS HONOUR:
Introduction
In 2007 the accused, Sean Sonnet, was found guilty by a jury of one count of conspiracy to murder Mario Condello. He had pleaded guilty to other offences.
In pre-empanelment submissions before King J, who was the trial judge in 2007, the prosecution sought to admit the depositional material of the witness Michael Thorneycroft pursuant to s 55AB of the Evidence Act 1958.
The basis on which this evidence was sought to be admitted was that Thorneycroft had also been charged as a member of the alleged conspiracy to murder Mario Condello and that later and whilst still on remand, he made a lengthy statement implicating his alleged co-conspirators SeanSonnet, Carl Williams and one Gregg Hildebrandt.
Subsequently, a committal proceeding was conducted at which all three accused men were represented. Thorneycroft gave evidence as a prosecution witness and was cross-examined for about three days. His evidence in the Magistrates’ Court was video recorded but because of a suppression order his image was not recorded. However, there is a complete sound recording. Some time after the committal Thorneycroft died of a drug overdose.
After full argument about whether Thorneycroft’s evidence should, nonetheless, be admitted at the trial of Sonnet, Williams and Hildebrandt, her Honour ruled that the evidence should be admitted, concluding as follows:
There is no doubt that Michael Thorneycroft is an important witness and that there is no dispute he was present for a number of the days and events that occurred. He is a participant in relation to a number of the conversations that are recorded. He was cross-examined by very experienced defence counsel over a period of days. That was recorded and it can be placed to the jury with all the nuances of language, in his own words. It would of course be preferable if they had vision to accompany that but it doesn’t exist. Having examined all of the arguments presented by counsel, it is my view that in relation to the exercising of my discretion, that the probative value of the evidence far exceeds the prejudicial aspects. Further, that directions [sic] to the jury are capable of being given that will make them understand the limitations that have been placed upon counsel in presenting the defence and the caution that they will need to exercise when dealing with this particular witness. Accordingly, in my view, this evidence is admissible, pursuant to s 55AB of the Evidence Act 1958”.[1]
[1]R v Sonnet (Ruling No. 1) [2007] VSC 583 at [40].
The accused man was subsequently found guilty by the jury and sought leave to appeal to the Court of Appeal on 21 September 2010. The Court delivered its judgment on 1 December 2010.[2] The appeal was allowed and a new trial was ordered as a result of that Court’s conclusion about the effect of King J’s ruling on the admission of the Thorneycroft evidence. In particular, the Court of Appeal held that “the judge erred in the exercise of the fairness discretion in failing to exclude the statement and the committal cross-examination”.[3]
[2]Sonnet v The Queen [2010] VSCA 315 per Nettle, Harper JJA and T Forrest AJA.
[3]Ibid at [77].
I will return in more detail to their Honours’ reasons for that conclusion. I am to be the trial judge for the re-trial of the accused.
On behalf of the Director of Public Prosecutions it was submitted by the Crown Prosecutor, Mr Kissane, that notwithstanding the judgment of the Court of Appeal, I should admit the depositions of Thorneycroft on the re-trial of Mr Sonnet, primarily because the re-trial will be conducted under the Evidence Act2008, and the principles under that Act which govern the reception of evidence of this nature are significantly different.
On behalf of the accused, Mr Kowalski of counsel has submitted that I am bound by the decision of the Court of Appeal and that the effect of the Evidence Act2008 is not such as to permit me to vary from the Court’s conclusion.
Transitional Provisions
For the sake of completeness, there appears to be no argument that the Evidence Act 2008 applies to this trial based on s 2(2) of the Transitional Provisions in Schedule 2. Both counsel for the Director and for the accused agree that it does.
The Court of Appeal
In order to deal with the submissions that have been made, it is necessary to first be clear about what the Court of Appeal decided, albeit that a different regime existed in relation to the rules of evidence. At the time of the Court’s judgment the Evidence Act2008 had been in force in Victoria for 12 months but, unfortunately for me, no reference is made in the judgment as to whether that might have had an effect on the outcome. Further, the Crown did not submit to the Court of Appeal that whatever its conclusion, a re-trial should not be ordered because the Thorneycroft evidence would be bound to be admitted in a re-trial, given the changes introduced by the Evidence Act 2008.
The Court of Appeal first dealt with the submissions on behalf of the accused that there had not been a “full opportunity of cross examining” Thorneycroft at the committal, contrary to s 55AB(2)(b) of the Evidence Act1958, because counsel then representing the accused had not been aware of a transcript of a police interview of Thorneycroft conducted on 6 June 2004. That interview was apparently first revealed to counsel for the accused during pre-empanelment submissions before King J. Alternatively, it was argued that the significance of the matters dealt with in the interview were such that the statements of Thorneycroft and his committal cross‑examination should have been excluded as unfair in the exercise of the trial judge’s discretion. As I follow it, it was on this latter basis that the Court allowed the appeal.
The Court of Appeal spent some time analysing what “full opportunity of cross-examining the witness” meant[4] but then concluded by saying:
That being so,[5] it is unnecessary to make a final decision as to whether a full opportunity of cross-examining includes being provided with relevant documents. We propose to deal with the matter by deciding whether the Crown’s failure to provide the defence with the transcript of Thorneycroft’s interview at the time of the committal hearing rendered the trial unfair.
[4]Ibid at [40]-[54].
[5]Referring to counsel’s submission that it makes no difference whether the Crown’s failure to disclose the interview transcript is properly to be described in terms of depriving the accused of a full opportunity of cross-examining Thorneycroft or in terms of the Crown’s failure to disclose as rendering the admission of Thorneycroft’s statement unfair.
The Court then identified the question it proposed to deal with in the following terms:
In light of what the High Court said in R v Grey,[6] we take the law to be that, if provision of the transcript of interview to defence counsel at the time of the committal hearing was capable of significantly strengthening the attack then made on Thorneycroft’s credibility, or otherwise significantly damaging the Crown case or advancing the applicant’s defence, the Crown’s reliance on Thorneycroft’s depositions at trial would have been unfair; and, in view of the Crown’s concession as to the importance of Thorneycroft’s evidence, would have been productive of a substantial miscarriage of justice. The question is whether the Crown’s failure to provide the transcript of interview realistically deprived the defence of an opportunity of significantly damaging the Crown case or strengthening the applicant’s defence.[7]
[6](2001) 184 ALR 593.
[7][2010] VSCA 315 at [55], emphasis added.
By its reference to the judgment of the High Court in R v Grey, I take the Court of Appeal to be leaving unresolved the issue of whether or not there had been a full opportunity to cross examine Thorneycroft under the Evidence Act1958. The Court then moved to consider whether the inability of the accused to cross‑examine Thorneycroft about the record of interview he made on 6 June 2004 and the inconsistencies that might be identified between that and Thorneycroft’s statements and committal evidence meant that the accused lost a fair chance of acquittal. The Court of Appeal concluded that it did.
The loss of a chance of acquittal and its effect were referred to by the High Court in R vGrey and discussed earlier in Wilde v The Queen:[8]
Those authorities establish that where there has been a departure from the requirements of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost "a chance which was fairly open to him of being acquitted" to use the phrase of Fullagar J. in Mraz v. The Queen or "a real chance of acquittal" to use the phrase of Barwick C.J. in Reg. v. Storey. Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside: see Driscoll v. The Queen; Reg. v. Storey; Gallagher v. The Queen. Unless that can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed: see Mraz v. The Queen. The loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice (citations removed).
[8](1988) 164 CLR 365 at 371.
The Court of Appeal conducted a careful analysis of the extent of inconsistency between what was in Thorneycroft’s statements and committal transcript and what he had said in the undisclosed record of interview. The important issue about which there was said to be inconsistency was the identity of the proposed victim of the conspiracy. At the conclusion of that analysis, the Court of Appeal said:[9]
[9][2010] VSCA 315 at [76]-[77].
Possibly, the sentence ‘I still don’t know who’s the persons’ name or whatever’ was intended to speak in the historical present. As the prosecutor submitted to the trial judge, and her Honour appears to have accepted, the last five words of the answer: ‘Like I didn’t know then’, suggest that he did know at the time of interview. But, even if that is so, the apparent inconsistency dictates that the provision of the transcript of interview to the defence at the time of the committal hearing would have significantly strengthened the attack then made on Thorneycroft’s credibility and been capable of significantly damaging the Crown case and advancing the applicant’s defence.
It follows, in our view, that the judge erred in the exercise of the fairness discretion in failing to exclude the statement and the committal cross-examination.
After the hearing of the appeal, the Court of Appeal was provided with further written submissions dealing with further inconsistencies. At the conclusion of the Court’s analysis of those submissions,[10] their Honours observed:
….we consider that the apparent disparity is something which might have been exploited to the applicant’s advantage if the transcript of interview had been available to the applicant at the time of the committal hearing. It strengthens our conclusion that, because it was not provided, the applicant was deprived of a realistic chance of acquittal.[11]
The conclusion of the Court of Appeal was that:
For the reasons earlier given, we consider that the Crown’s failure to provide the applicant with the transcript of the Wallace interview at the time of the committal hearing meant that Thorneycroft’s statement should have been excluded from evidence as a matter of fairness. Its importance to the Crown case was such that, by reason of the judge’s failure to exclude it from evidence, the applicant was deprived of a realistic chance of acquittal. It follows that the conviction sustained below should be set aside. [12]
[10]Ibid at [78]-[100].
[11]Ibid at [99].
[12]Ibid at [129].
Submissions
In considering this matter, I had the benefit of written submissions filed on behalf of the prosecutor and the accused. Considerable attention was paid to the differences and admissibility thresholds under s 55AB of the Evidence Act 1958 and s 65(3) of the Evidence Act 2008. It was common ground that there had been significant changes. The test for such evidence pursuant to s 65(3) of the Evidence Act 2008 is said to be “less onerous”.[13] Importantly, it was submitted by the prosecutor that there is no general “unfairness” discretion under the new Act, over and above that provided by ss 135 and 137.
[13]Submissions on behalf of the prosecution, by reference to Bongiorno JA in DPP v BB & QN [2010] VSCA 211.
As I understood the prosecutor’s submissions put on that analysis, the new Act results in the depositions of Thorneycroft being clearly admissible. The provisions of the new Act have an effect on the outcome in the Court of Appeal, he submitted, such that I would be permitted to admit the evidence without risk that a miscarriage of justice, of the kind the Court found had occurred in 2007, would occur again. I am unable to accept that submission. With respect, I suspect that the prosecutor’s submission misconceives the basis on which the Court reached the conclusion it did. Mr Kissane did submit that the loss of opportunity on behalf of the accused to cross-examine Thorneycroft which was central to the Court’s conclusion was somehow inextricably linked to s 55AB of the Evidence Act1958. I am also unable to accept that submission.
Conclusion
In my opinion, I am bound by the judgment of the Court of Appeal not to admit this evidence. The Court did not determine the accused’s appeal by reference to whether s 55AB of the Evidence Act 1958, was or was not complied with. There is no question but that the standard by which such evidence might be admitted has now changed by reason of the effect of the Evidence Act2008.
Instead, the Court of Appeal decided the case on the basis that the accused lost a “fair chance of acquittal”,[14] making clear that what was lost was the opportunity to cross-examine Thorneycroft about his more recently disclosed record of interview, and the inconsistencies which could have been exploited on behalf of the accused to considerable effect. I am unable to see how the legislative change in any way entitles me to re-examine the Court of Appeal’s conclusion about that. If the accused had lost a chance of acquittal in 2007 by virtue of his inability to cross‑examine Thorneycroft about these matters, that loss remains and is not ameliorated by the advent of the Evidence Act2008.
[14]Grey v R (2001) 184 ALR 593 at [27] per Gleeson CJ, Gummow and Callinan JJ. Grey v R was a case determined in New South Wales where the Uniform Evidence Act was in force at all relevant times.
The evidence of the statements and depositions of Michael Thorneycroft will be excluded.
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