R v Sonnet - [2011] VSC 97

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…

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 Sonnet

Details

AGLC: R v Sonnet [2011] VSC 97
Case: [2011] VSC 97
Decision Date: 22 March 2011

CaseChat Overview and Summary

The case of R v Sonnet involved the defendant, Sonnet, who was facing a retrial for a criminal offence. The dispute centred around the admissibility of depositions taken during the initial trial under section 65(3) of the Evidence Act 2008, in light of a previous appellate judgment that found a miscarriage of justice due to the unreliability of the evidence. The matter was heard by the Court of Appeal, which was required to determine whether the new Evidence Act 2008 altered the binding effect of the previous appellate judgment and whether a different test for admissibility should apply in this context.

The court had to decide if the Evidence Act 2008 introduced a new standard for admissibility that could potentially affect the binding nature of the earlier appellate judgment. It also needed to consider the specific circumstances of the original miscarriage of justice, namely, whether the defendant lost a fair chance of acquittal due to the inadmissible evidence. The court further had to examine whether the appellate judgment's effect under the Evidence Act 1958 was still applicable or if the new Act provided a mechanism for reconsidering the admissibility of depositional evidence in light of the miscarriage of justice.

The court found that the Evidence Act 2008 did not alter the binding effect of the appellate judgment and that the original miscarriage of justice, due to the loss of a fair chance of acquittal, remained a critical factor. The court concluded that the test for admissibility of depositional evidence remained unchanged, and therefore, the application by the prosecution to admit the depositional evidence was refused. This decision underscored the importance of the integrity of the judicial process and the protection of a defendant's right to a fair trial.

Orders