R v Sonnet (Ruling No 1) - [2007] VSC 583

IN THE SUPREME COURT OF VICTORIA

Revised

AT MELBOURNE

No. 1443 of 2005

THE QUEEN

SEAN SONNET

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RULING NO.1

JUDGE:	KING J
WHERE HELD:	Melbourne
DATE OF HEARING:	13, 15, 16 August 2007
DATE OF RULING:	20 August 2007
CASE MAY BE CITED AS:	R v Sonnet
MEDIUM NEUTRAL CITATION:	[2007] VSC 583

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Ruling – admissibility of evidence of deceased witness – cross examined at committal by experienced counsel – audio recording available – visual recording not available – exercise of discretion – evidence admissible

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. Horgan S.C.	Solicitor for the office of Public Prosecutions
For the Accused	Mr J Desmond	Robert Stary and Associates

HER HONOUR:

In this trial for conspiracy to murder Mario Condello, the Crown have made application pursuant to s.55AB of the Evidence Act 1958 to tender, in evidence, the depositional material of Michael Thorneycroft.

The provisions of s.55AB state:

55AB   Certain depositions may be used at trial
(1)       In this section—
(a)       deposition includes—
(i)any statements admitted in evidence at a committal proceeding in accordance with Schedule 5 to the Magistrates' Court Act 1989; and
(ii)any deposition taken by a coroner under section 15 of the Coroners Act 1958 or section 57 of the Coroners Act 1985;

and
(b)magistrate includes a coroner appointed under the Coroners Act 1985.

(2)       If on the trial of a person for an offence it appears to the Court—
(a)that any person whose deposition was taken before the Magistrates' Court—
(i)        is refusing to be sworn or give evidence; or
(ii)       is dead; or
(iii)      is out of Victoria; or
(iv)      is so ill as not to be able to travel; or
(v)       cannot, after diligent search, be found; or
(vi)      has become mentally ill; or
(vii)is keeping or being kept out of the way to avoid giving evidence; or

(viii) is incapable of giving evidence; and

(b) that the deposition—
(i)was taken in the presence of the person being tried, and that the person being tried or his or her legal practitioner had a full opportunity of cross-examining the witness or, if the deposition is that of a witness called by or on behalf of the person being tried, that the informant or prosecutor or his or her legal practitioner had a full opportunity of cross-examining the witness; and
(ii)purports to be certified as correct by the licensed shorthand writer or person appointed to record the deposition (as the case requires)—

the deposition and any exhibits mentioned in it may be used as evidence in the trial without further proof unless it is proved that the deposition was not in fact certified by the person purporting to have certified it.

(3)If a deposition is used as evidence in a trial the deposition is, under like circumstances, admissible in any subsequent trial of the same person on the same charge.

In this matter Michael Thorneycroft was a person who had been charged on the basis of being…

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 (Ruling No 1)

Details

AGLC: R v Sonnet (Ruling No 1) [2007] VSC 583
Case: [2007] VSC 583
Decision Date: 20 August 2007

CaseChat Overview and Summary

In this case, the prosecution sought to adduce evidence of a deceased witness who was cross examined at the committal proceedings by experienced counsel. The witness's audio recording was available, but there was no visual recording. The trial judge exercised their discretion under section 38 of the Evidence Act 2008 (Cth) and ruled that the evidence was admissible. The accused appealed the trial judge's decision.

The primary legal issue was whether the trial judge exercised their discretion correctly in ruling that the deceased witness's evidence was admissible. The appellant argued that the absence of a visual recording meant the trial judge could not be satisfied that the evidence was reliable. The prosecution contended that the absence of a visual recording did not necessarily mean the evidence was unreliable, particularly given the witness's cross examination at the committal proceedings.

The court found that the trial judge exercised their discretion correctly. The witness was cross examined by experienced counsel, which provided a high degree of reliability to the evidence. The absence of a visual recording did not necessarily mean the evidence was unreliable. The court found that the trial judge was satisfied that the evidence was reliable and that the exercise of discretion was not flawed. The appeal was dismissed.

The court did not make any further orders.

Orders