R v Sonnet (Ruling No 1)
[2007] VSC 583
•20 August 2007
| IN THE SUPREME COURT OF VICTORIA | Revised | |
AT MELBOURNE
No. 1443 of 2005
| THE QUEEN |
| v |
| 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 a member of the alleged conspiracy to murder Mario Condello. At a later stage, and whilst still on remand, he made a lengthy statement implicating his alleged co-offenders, Sean Sonnet, Carl Williams and Gregg Hildebrandt.
Subsequent to the charging of these persons, in due course, a committal proceeding was held at which all three accused men were represented. Williams was represented by Mr C. Heliotis QC, Hildebrandt by Mr J. Kennan QC and Sonnet by Mr G. Meredith of counsel.
Mr Thorneycroft gave evidence at the committal in the normal manner and his statement including the first statement of some 45 pages and a second statement were tendered and adopted by him as being true and correct. He was then cross-examined for a period of approximately three days. All of this was video recorded.
Most unfortunately, because of a suppression order that related to Michael Thorneycroft, his image was not in fact video recorded and when one views the video one can see all counsel during the cross-examination and examination in chief, but where the person being cross-examined would normally be depicted the screen was blank. The suppression order had been interpreted such that his image was not in fact recorded. Thus his responses were audible and although there is no recording of his physical appearance, the intonation and pauses in relation to his evidence are recorded, as is the intonation in respect of the questions asked by counsel.
Subsequent to the committal proceedings, and before the trial commenced, Michael Thorneycroft died of a drug overdose, having been a drug addict for some years. It is clear that his depositional material falls within s.55AB in that:
· s.55AB(1) - his deposition was taken at a committal proceeding, and
· s.55AB(2)(a) - he is dead,
· s.55AB(2)(b) - the deposition was taken in the presence of Mr Sonnet, he was represented by a legal practitioner as were his co-offenders and he had a full opportunity of cross-examining that witness.
· Counsel for Mr Sonnet concedes that the depositions were certified and also concedes that the witness Thorneycroft had died in relation to those two pre-conditions.
Accordingly, the evidence of Thorneycroft is prima facie admissible under this legislation.
In this case, the trial of Sonnet is proceeding without Williams and Hildebrandt as they both pleaded guilty at an earlier stage, for which they have been sentenced. Neither man has made a statement or is being called to give evidence by the crown.
In relation to the law relating to the admissibility of depositions under these circumstances in R v Collins[1] Hampel J held that s.163 of the Magistrates’ (Summary Proceedings) Act 1975, which was the relevant legislation prior to the introduction of s.55AB of the Evidence Act, did not leave the Court with a discretion to exclude the evidence once the criteria for the use of the depositions had in fact been made out. However Hampel J held that the Court had an overriding general discretion which could be exercised by a trial judge to exclude evidence, either because its prejudicial effect outweighs its probative value, or because for any other reason its use would deprive the accused of a fair trial. He relied upon the observations of Justice Starke in R v Ristic.[2]
[1][1986] VR 37 at 40.
[2]Unreported, Full Court, 7 October 1981.
Some of these issue were discussed in R v Massie[3] where Brooking J[4] appeared to refer to R v Collins with approval. In relation to the exercise of a discretion, his Honour noted in the particular case that the court was considering, that the only argument put at the trial in this regard was based on the jury’s needs to see the witness in order to assess the witness’ credibility.
[3](1999) 1 VR 542.
[4]At 550.
His Honour then went on to criticise the fact that applications were being made in the Court of Appeal which were not in fact pressed before the trial judge. His Honour also noted that in relation to this evidence, as the trial judge pointed out, all arguments about the evidence of the witness should in any event be considered in light of the fact that the defence was really one of confession and avoidance (“I was pretending”) rather than denial. Equally in this case it should be noted that the defence, according to the submissions of counsel is clearly one that the accused was pretending, that is, that the conspiracy was a sham conspiracy.
Finally, in R v Cacic[5] the Court was hearing argument related to the use of s.55AC of the Evidence Act. At page 452 the Court made extensive references to s.55AB. Chernov JA stated:
[5](2002) 5 VR 446.
21.Mr Shwartz accepted that, ordinarily, once the requirements of s.55AC are satisfied, the earlier evidence of the witness becomes admissible in a subsequent proceeding. Counsel argued, however, that the trial judge was under an obligation to scrutinise carefully Paull’s earlier testimony and consider whether its “quality” was such that, in the circumstances, there was a real risk that its introduction into evidence, in conjunction with Paull’s evidence, would render the trial unfair to the applicant. In support of his submission Mr Shwartz referred to what he claimed was said in this regard by the Privy Council in Scott v R [1989] AC 1242. In that case, their Lordships dealt with the admissibility into evidence of a deposition under a statutory provision not dissimilar from s.55AB of the Evidence Act. The Privy Council recognised that, although a trial judge has power at common law to exclude in the interests of justice the admission of a deposition which is otherwise admissible, such power should be exercised with great restraint. Nevertheless, said Lord Griffiths for the Board, the judge must scrutinise the deposition “to ensure that it does not contain inadmissible matters such as hearsay or matter that is prejudicial rather than probative and any such material should be excluded from the deposition before it is read to the jury.” His Lordship went on to say:
“It is the quality of the evidence in the deposition that is the crucial factor that should determine the exercise of the discretion. By way of example if the deposition contains evidence of identification that is so weak that a judge in the absence of corroborative evidence would withdraw the case from the jury; then if there is no corroborative evidence the judge should exercise his discretion to refuse to admit the deposition for it would be unsafe to allow the jury to convict upon it. But this is an extreme case and it is to be hoped that prosecutions will not generally be pursued upon such weak evidence. In a case in which the deposition contains identification evidence of reasonable quality then even if it is the only evidence it should be possible to protect the interests of the accused by clear directions in the summing up and the deposition should be admitted. It is only when the judge decides that such directions cannot ensure a fair trial that the discretion should be exercised to exclude the deposition.”
22.Counsel’s principal argument was that the judge erred in allowing Paull’s earlier testimony to be adduced because, in the circumstances, its prejudicial effect outweighed its probative value. More particularly, it was said, Paull’s earlier testimony conflicted with that of Jones on at least two important matters, one being the number of times that the applicant moved the cue from one side of his body to the other before he struck the deceased with it, and the other being the presence of Bosnjak at the hotel on the evening in question. Moreover, it was claimed, it was apparent before Paull gave her evidence at the second trial, that her then proposed demonstration of how the cue was moved by the applicant would be inconsistent with that given by her at the earlier trial. Counsel argued that in fact her evidence at the trial was inconsistent with that given previously and it was otherwise unsatisfactory and unreliable. Furthermore, it was claimed, it was plain that the applicant’s counsel would be denied the opportunity of meaningfully cross-examining the witness. Thus, it was said that his Honour should have ruled that Paull’s earlier testimony should not be led by the Crown and that his failure so to rule constituted error.
23.It seems to me, however, that the success of Mr Shwartz’s argument must be dependent upon his establishing that his Honour should not have permitted the Crown to call Paull as a witness. This is because, in my view, there is nothing inherently inadequate about her earlier testimony – that there was a conflict between her evidence and that of Jones on two factual matters did not render her earlier testimony relevantly inadequate. This conflict was one for the jury to resolve and, in my view, it could not be said that it caused Paull’s earlier testimony to lack “quality” in the sense that that term was used in Scott. Consequently, if, as I think, there was nothing inherently wrong with Paull’s earlier testimony, then the only basis on which it could have been excluded was that, if taken together with the evidence that Paull was then to give, it would have rendered the trial unfair to the applicant.
In that case, the witness Paull had given evidence at a previous trial but due to an accident had been rendered mute and what the witness was being called for was to be provide only a demonstration not to answer any questions.
My reading of those authorities make it clear that if the evidence is prima facie admissible. It should only be excluded on the two bases as outlined by Hampel J in R v Collins and the Court should exercise such a power as described in Scott’s case with great restraint.
As the Court noted in R v Cacic, ss.55AB and 55AC reflect, and in some respects expand, the pre-existing common law rule which made admissible, where the witness was dead, the transcripts and depositions of the evidence, as an exception to the hearsay rule. It was described by the Court as being an enabling provision.
In relation to the submissions made by counsel for Mr Sonnet, at my request counsel provided a four page document headed “What the defence say it has been deprived of the opportunity of being able to do by reason of Thorneycroft being dead”. It contained 19 points upon which they relied. I will list what that document contains.
The first line commences with the general statement that “much of what Thorneycroft says in his first statement is in issue between the parties”, it then continues, to what could be described as the specifics:
1.Paragraph 7 of Thorneycroft’s statement. The precise content of this conversation is disputed and Thorneycroft is either lying or has a poor recollection of same.
2.Paragraphs 10-17 concerns the group of persons at the hotel and the conversation alleged to have occurred. Much of same is disputed in relation to parts of the conversation attributed to Sonnet.
3.Paragraph 26 details an alleged conversation with Sonnet at the garage. This conversation as to the content of same is disputed. This amounts to a significant conversation allegedly going into detail of the alleged conspiracy. It allegedly identifies the target, the reward from participation and how it was to be perfected. The Crown no doubt would be seeking a conviction on this conversation as proof of a conspiracy. The defence was deprived of the opportunity of testing and challenging Thorneycroft in relation to same.
4.Paragraph 27. The conversation alleged at a pub somewhere is disputed.
5.Paragraph 28 is disputed and Thorneycroft himself says he was so under the influence of speed he can’t recall the details of the alleged conversation.
6. Paragraph 29. The alleged conversation in the garage is disputed.
7. Paragraph 42 is disputed re what happened in the car park.
8. Paragraph 50. Some of the alleged talk attributed to Sonnet is disputed.
9. Paragraph 55 is disputed in relation to actions attributed to Sonnet.
10.Parts of paragraph 56 are disputed in relation to the sequence of events and conversations held between the two.
11.Paragraph 58. Parts of a conversation alleged against Sonnet are disputed.
12. Paragraph 62. The conversation in the garage is disputed.
13. Paragraph 67. Parts of the conversation are disputed.
14. The statements remain untested by trial cross-examination.
15.In relation to the second statement, Thorneycroft agreed that despite having said it was true and correct he hadn’t even read the same.
16.The accused did not squarely put the defence to the witness Thorneycroft at the committal.
(a)Page 80: Michael Thorneycroft says “I remember some parts … I just remember some things which Sean was saying to me about going to Mario Condello’s place and stuff like that”.
(b)Page 99: Sean took a gun out of his pants – not challenged about this.
(c)Page 172: Conversation at the bistro – not challenged about same.
(d)Pages 180 and 181: Michael Thorneycroft talking about how he knew the job was to shoot someone because “when he pulled out the gun he’s done the action …” No description of the apparent demonstration given by Michael Thorneycroft in court and further no challenge made to same or puttage to the contrary.
(e)Page 184: Michael Thorneycroft not challenged on the suggestion Sean Sonnet virtually said “Drive for me while I pop some cunt”.
(f)Page 188: Michael Thorneycroft is too vague and changes as to when the alleged conversation is held – not challenged.
(g)Page 192: “The whole 47 pages came flowing from your memory---that’s correct”. Not challenged or put to the contrary that the police must have assisted him with his alleged recollections.
(h)Page 191: In relation to paragraph 26 of the statement he needs to refresh his memory from the brief. Not challenged. Throughout the cross-examination issues are aired but no challenge is made to Thorneycroft’s assertion.
17.Specific complaint is made concerning, inter alia, but not limited to the following:
·No challenge to the sequence of events re the enhanced tape of 1 June intercept secured by police the day prior to the commencement of making the first statement and it would be impossible for the heavy drug addict Michael Thorneycroft to have produced such a comprehensive statement of 47 pages without assistance.
·Thorneycroft was never challenged that there was no conspiracy to kill anyone let alone Condello.
·That Michael Thorneycroft was just a Williams’ puppet not to be trusted as he was Williams’ relation and was reporting to Williams.
·That Michael Thorneycroft was taken to incorrect houses in Brighton.
·That he took him to various houses in the area because Thorneycroft was saying at the time he would get out and just walk into the house and shoot whatever “cunt” was there and he would shoot it out with the jacks if necessary.
·There was money talk in relation to outstanding drug issues/disputes between Sean Sonnet and Michael Thorneycroft.
·It was Sean Sonnet who told Michael Thorneycroft and Carl Williams that Mario Condello was residing in Brighton despite Carl Williams having said Mario Condello was living in town.
·The whole exercise was a sham.
·That Michael Thorneycroft is a loose cannon. Watch him with Sean Sonnet and report him back to Williams.
·The repercussions of reneging on Carl Williams would have deadly consequences.
·That it was Sean Sonnet who actually got rid of and/or engineered Michael Thorneycroft’s exit to get Williams off his back.
18.The potential response of Thorneycroft to such puttage is unknown.
19.A real question of prejudice arises if the evidence is received by the jury. Firstly, the evidence goes to the critical issue in the trial, was there a conspiracy? And if and insofar as there was – what was the nature of the conspiracy i.e. to do what. Thorneycroft’s evidence is not going to some peripheral issue only in the trial and the essential grievance is:
(a)Much of what is in dispute quite properly was not challenged on the committal in the legitimate and proper expectation he would be a trial witness.
(b)Direct puttage on the alleged conspiracy and the surrounding circumstances of the same is absent and thus Thorneycroft’s response to same is pure conjecture.
Those issues were dealt with seriatim during the discussions and submissions made by counsel. The dot points made in paragraph 17 were dealt with first, as counsel submitted that these were the most significant of the matters in terms of the inability to cross examine the witness.
The first dot point related to – ‘no challenge to the sequence of events relating to the enhanced tape of the 1 June intercept, having been secured by the police the day prior to the commencement of the making of the first statement’. It was pointed out to counsel that he could cross-examine the police officers who took the statement from Thorneycroft and the circumstances under which the taking of that statement occurred. Counsel agreed that that could be done. But then submitted:
Because with the greatest respect we would expect the police would say ‘of course we gave no assistance to the man. It is his statement and completely his alone’.
However, in respect of this criticism, Thorneycroft was cross examined about the making of this statement at the committal and the circumstances under which it was made and he said that the police did not assist him. That was his evidence. It was affirmatively put to him that the police had helped him and he denied it. In respect of the material that Mr Desmond wishes to place before the jury in relation to matters going to the likelihood of this occurring, they includes the drug affected nature of Mr Thorneycroft, the fact that he was in custody, as he put it, while undergoing withdrawal from drugs ‘cold turkey’, that the police had the enhanced tape, that the statement was taken over a number of days. All of those matters are in evidence including the witness’ response to the allegation. The argument on this point does not in view have any substance.
The next dot point was that – ‘Thorneycroft was never challenged that there was no conspiracy to kill anyone let alone Condello’. Having read the material, it is clear that Thorneycroft was cross-examined extensively on this issue. He was asked about the precise words used, whether the word “Mario” was used, whether “kill Condello”, precisely what words Sonnet had said to him, and other questions along those lines. Although Mr Desmond submitted that it was never put to Thorneycroft that it was a lie, that he was making it up. On my reading of the material it is clear that it is put to him that it is his imagination, and that he couldn’t be satisfied or have any knowledge that it was going to be a conspiracy to murder any more than perhaps an armed robbery. He denied this saying he knew it was going to be a murder and explained why he knew that. He also indicated that a gun had been produced by sonnet at that time, and the way he held it and what he said made it clear to him that it was going to be a murder. Mr. Desmond argued that because the jury will not be able to see the way Thorneycroft demonstrated the gun was held, it will not be possible for them to assess this important evidence. During the questioning, there are from my reading of the material descriptions given of the manner in which he held the gun, sufficient for the jury to be able to comprehend the point. Once again this argument does not in my view have any substance.
The next dot point was that – ‘Michael Thorneycroft was just a Williams’ puppet, not to be trusted, that he was Williams’ relation and was reporting to Williams’. It was argued that it was never put to Thorneycroft that he was in fact Williams’ puppet. I agree that in those precise words it was not raised but it was raised that he was Williams’ cousin. He also gave evidence that he tried to and did speak to Carl Williams in respect of the behaviour of Sean Sonnet. Thorneycroft was extensively cross-examined about his relationship with Williams at pages 81, 93, 96-98 and 165 of the depositions. Also the material itself, the listening devices, telephone intercepts demonstrate also the nature of the relationship. There is also a listening device of 2 June which is an example of Thorneycroft actually reporting to Williams and commenting on Sonnet. The ability to make comments to the jury in respect of Thorneycroft being a puppet of Williams is, in my view, clearly open, on the material contained in the depositions of Thorneycroft and the intercepted material in the brief.
The next dot point was that – ‘Michael Thorneycroft was taken to incorrect houses in Brighton’. That evidence is clearly contained in his statement and he is cross-examined at committal and it is demonstrated that he was taken and shown houses that were not in fact the residence of Mario Condello. The police can and will give evidence of which residence in Brighton was the residence of Condello. The surveillance demonstrates them on occasion looking at wrong houses. Counsel submitted that in fact it was never established and it was in his submission a significant issue in this trial. Clearly what he is referring to in respect of that, because the incorrect houses aspect is so clearly established, is combining that matter with the next dot point which relates to puttage, - ‘being that Sonnet took Thorneycroft to various houses in the area because Thorneycroft was saying at the time he would just get out and walk into a house and “shoot whatever cunt was there and he would shoot it out with the jacks if necessary”’. That is clearly a question that he wished to put to the witness Thorneycroft as being one of the motivations behind Sonnet taking him to different and wrong houses.
When this matter was pursued there was a discussion between counsel and myself as to this issue (page 220 of the transcript):
Mr Desmond: I’m trying to work my mind around the double negatives. The defence case is that he did take Thorneycroft to incorrect addresses, incorrect houses.
Her Honour: But isn’t that clear from the material?
Mr Desmond: It is partially clear. I wasn’t sure as to what extent it was either going to be an issue or not. It is really the purport why.
Mr Desmond: That is what hasn’t been put.
Her Honour: But Thorneycroft couldn’t have said why he was taken to wrong houses because that would be in the mind of Mr Sonnet.
Mr Desmond: I understand the argument. Sonnet is not going to disclose the true reason because then the jinks up. He is not going to say “I was taken to the wrong house because this is all a joke”.
Her Honour: Yes, and I can’t have a witness asked about what was in the mind of the person. He can be asked what did he say to you. There is no suggestion that this whole thing is a joke. I don’t think you miss anything on that.
Mr Desmond: Well I do your Honour. Only because Thorneycroft has got to be wondering why are we going to all these different places.
Her Honour: I don’t care what he is wondering
Mr Desmond: That would be relevant in cross-examination.
Her Honour: It would not be relevant what Thorneycroft was thinking.
Mr Desmond: Well that is a poor way of putting it. Did you ask him why are you showing me this house because you showed me that house three days ago, for example. Yet now you’ve shown me this third house. Did you ask him that Mr Thorneycroft.
Her Honour: And if he said no - any further comment is for the jury isn’t it.
Mr Desmond: In my submission they are legitimate matters that one would be entitled to ask a co-conspirator when he is the only witness that is including you.
Her Honour: Well he is not going to know what is in Mr Sonnet’s mind and I wouldn’t let him answer what is in Mr Sonnet’s mind. He can answer about a conversation but the chances of him saying “Well Sonnet told me the whole thing is a sham and a pretend”.
Mr Desmond: No I wouldn’t expect that to come out. But if the Crown was relying on him to convince the jury that this was the conspiracy I would be expecting him to ask but didn’t you ask him then if the question of his participation and his level of inquiry into the alleged conspiracy that is the point of it.
Her Honour: I don’t think this is a significant point as it is now explained.
For the reasons outlined in the discussion I am still of the view that there was nothing of real significance that was lost in not being able to put to Thorneycroft what he submitted Sonnet was thinking or reasoning, as it is highly unlikely that he would have admitted to Thorneycroft that he was taking him to different houses because this was all a sham or a pretence. The argument is that he was still trying to convince Thorneycroft that he was genuinely a co conspirator in the plan devised by Williams.
The next dot point was that – ‘the money talk was in relation to outstanding drug issues and disputes between Sean Sonnet and Michael Thorneycroft’. From what I have been able to glean from the argument what is being said is that Sonnet and Thorneycroft had some sort of arrangement in respect of drug transactions between them and that any discussion about money that was recorded on telephone intercepts may in fact relate to the issue of drug matters rather than the issue of the conspiracy to murder. There is ample material on the listening devices and in the evidence of Thorneycroft that Thorneycroft was a significant drug user and that Sonnet equally was involved in the use of drugs. This material may in fact be excluded if the evidence of Mr Thorneycroft is admissible in terms of the issue of prejudice, but in relation to the evidence of them both being consumers of drugs, there is more than sufficient material for that comment to be made to the jury. The matter of excluding individual items is a matter that is firstly a matter for discussion between the crown and the defence, and perhaps ultimately a matter for me, but is dependent on the overall evidence being admissible.
It does not appear from my reading of the material to have been specifically asked of Thorneycroft if the references to money that he made in his statements, or in the listening devices, are references to transactions and disputes that he and Sonnet were having about drugs. There are many questions relating to drug dealing, and whether he was involved in drug trafficking as a business, and the response of Thorneycroft is to decline to answer the questions on the grounds that they may tend to incriminate him. If required, that answer, and the reasons for it, can be explained to a jury. Accordingly, the issues have been highlighted without the exact question raised by counsel, being put to Thorneycroft. There is in my view no substance to this argument.
The next dot point was that ‘it was Sean Sonnet who had told Michael Thorneycroft and Carl Williams that Mario Condello was residing in Brighton despite Carl Williams having said Mario Condello was living in town’. There is clear evidence that it was Sean Sonnet who was directing Michael Thorneycroft to the address in Brighton and the surveillance of the address in the area of Brighton in which the home of Mario Condello was located. The surveillance evidence equally demonstrates that as well as the listening device material. There was no evidence of any general or specific conversation, in which Carl Williams informed Sean Sonnet that Mario Condello was living in the city. There is, again, no evidence of any conversation in which Sean Sonnet convinces or attempts to convince Carl Williams that Mario Condello is in fact residing in Brighton. When pressed about what this argument was based upon, Mr Desmond stated (page 113):
I am saying that the evidence will come from Sonnet, if he gives evidence in his case, and we would have been obliged to put it to Thorneycroft, and even if Sonnet didn’t, it is such a significant point, because it is so relevant to the criminal intent that the Crown has got to prove here, that he was going out of his way to convince all and sundry that Condello was down there, knowing that he is not down there, so it could never happen.
They are the instructions clearly that counsel have, that this was all part of the sham in which Mr Sonnet was participating, that is, pretending to be agreeable to murdering Mario Condello, but delaying any such murder until a time at which, for some reason, he would no longer have to or be able to pursue the undertaking.
Whilst I agree that it has not been specifically put that there was such a conversation in which Sonnet relayed to Thorneycroft that Williams had told him about Condello living in the city and Sonnet convincing Williams that that was incorrect - he was truly residing in Brighton. He was, however, cross-examined about whether Sonnet was in fact delaying the murder being carried out, the attitude that he displayed towards the murder taking place, whether he thought Sonnet was never going to go through with it, or if he believed that this was a conspiracy that was a real conspiracy and was going to occur.
This all relates equally to the next dot point, that is he was unable to put to the witness Thorneycroft that this was a sham. Once again we have the issue of asking the opinion of the witness. The witness cannot and would not be permitted to give evidence of his opinion, but he would be permitted to give evidence of any conversations that he had with Sonnet, that demonstrated or indicated that Sonnet was in fact not genuine in his actions or statements, in relation to carrying out the murder. I indicated during discussions with counsel that it was obvious that evidence had been elicited, during the cross-examination at the committal proceedings, of facts on which the defence could effectively put that argument to the jury. I have already dealt with that point and there is in my view no substance to the argument.
The dot point that - ‘Michael Thorneycroft was a loose cannon watching Sean Sonnet and reporting back to Williams’, that evidence is available. He was asked about his drug usage, his alcohol usage, his unreliability. The tape recordings of the listening devices demonstrate that alleged unreliability. They further demonstrate the witness Thorneycroft attempting, and succeeding at times, in reporting back to Williams about what was going on, and in particular, about Sean Sonnet.
The next dot point is that - ‘the repercussions of reneging on Carl Williams would have deadly consequences’. That again is opinion evidence and clearly something that is capable of being made as a comment to the jury based solely on the fact that it was Carl Williams who was asking for the execution of this man to occur, and that Williams had pleaded guilty to a number of murders, which puts him in a quite distinct category separate from the average citizen.
The final dot point was that – ‘it was Sean Sonnet who actually got rid of and/or engineered Michael Thorneycroft’s exit to get Carl Williams off his back’. That relates, as I understand Mr Desmond’s submissions, to the inability to put to Thorneycroft when he describes himself in his statement as he pulling out of the conspiracy, that in fact it was Sean Sonnet who had him removed from the conspiracy, not him pulling out. In relation to this matter he has given the evidence that he pulled out of the conspiracy, he is cross-examined about it, but those precise instructions are not put. What is in evidence is that there are a number of conversations recorded of Mr Sonnet indicating to Mr Williams the unreliability of Michael Thorneycroft. The issue of him pulling out of the conspiracy was a topic on which he was cross-examined, as I said, relatively extensively, including questions such as: “You didn’t actually tell anyone that you pulled out” indicating a clear lack of believability on the issue. There are constant references in the listening devices of Sonnet actually saying to Thorneycroft that he is not up to it, that he is off his head, he’s incapable and drug fucked, words along those lines.
In relation to the aspect of puttage and the opportunity that the defence have been denied, there was during the submissions a discussion between Mr Desmond and myself about the point of puttage (at page 120), wherein there was discussion about what had been put to the witness at the committal, Mr. Desmond commenced by reciting some of that evidence :
Mr Desmond: You said Sean asked you if he can store the revolver at your house and you said that he could. A: Yes, that’s right. Q: That’s nonsense isn’t it. That’s absolute nonsense isn’t it. Witness: No it’s not.
Mr Desmond: As I say there is at least two propositions in that question. Bearing in mind no doubt it will be explained it was by Mr Heliotis, counsel for Williams:
Her Honour: Why does that have to be explained?
Mr Desmond: Well, the jury might be wondering why there are three barristers cross-examining for a start. They all had specific roles representing different – I am anticipating, I may be wrong in anticipating that.
Her Honour: Well the jury is going to be told because it is part of the presentment that this was a conspiracy with other persons.
Mr Desmond: I understand that.
Her Honour: So Mr Williams will certainly be a factor and one would expect that –
Mr Desmond: Yes, but the jury would see me representing Sonnet not representing Williams and here is Williams’ then barrister. If your Honour says that that is a challenge, challenging him on a point.
Her Honour: I don’t think the jury will take the issue of which particular person was challenging him in respect of it but the point is the challenge has been made.
Mr Desmond: It is a limited challenge your Honour. I mean on serious points like this you would go on with it. “You are lying you are just making it up”.
Her Honour: It doesn’t make it any better whether you say to him four times “you’re lying” and he says “no” or you say it once. It doesn’t make it any better. As I say to the jury it doesn’t matter how often the question is asked or how many times it is denied. It is the answer that is the evidence.
Mr Desmond: That’s right and that is what we miss out after the second and third time. The pregnant pauses and the ruddy face getting ruddier and ruddier as the seconds elapse in court and the shifting of the feet in the witness box.
Her Honour: If the seconds elapse then they will be heard by the jury won’t they. Tick, tick, tick.
(At page 123):
Mr Desmond: Well I can’t challenge Thorneycroft on any of this. It just gets read in your Honour. These conversations as to the specifics are disputed.
Her Honour: But all of this is cross-examined on extensively.
Mr Desmond: The issue is raised to see whether he swears up your Honour on these matters.
Her Honour: He is cross-examined on it quite extensively. The conversation at the hotel and his reliability in respect of it, the amount of alcohol he has consumed,
Mr Desmond: It is put to him that it is a lie - Sonnet didn’t say that.
Her Honour: Whether it is put to him or not if all you are going to put to him is that’s a lie, then I don’t see that that assists you enormously.
Mr Desmond: Or that is what I would be obliged to do if Thorneycroft was a witness here.
Her Honour: Indeed. And I would say to the jury that whilst that might normally happen it doesn’t happen here. But the defence dispute that he is telling the truth and he has been cross-examined and asked about these issues without actually anyone saying this whole thing is a tissue of lies. That can be made quite clear to them. If all you are talking about is putting to him this is a lie, that is a lie, you are not putting anything specific that could demonstrate or could shake him in terms of it ---
Mr Desmond: Well, there is not much you can put for one on one conversations. You can only put to the witness “tell us what was said”, you see if it marries up with his statement to see if there is any inconsistency and then you put to him “you are just wrong about that, you are either lying or you are making it up or your memory if faulty”.
Her Honour: The point is Mr Desmond you have got the cross-examination on the issues which allow you to make the comment about unreliability, inaccurate – all of those things. Because of the cross-examination having occurred you have the ability to make the comment to the jury. As I say when you are dealing with this you would have to tailor things so it would be explained. Look it wasn’t put to him directly that he was lying. The reason was that it wasn’t necessary he was going to be a witness in this trial. He isn’t a witness in this trial because he is no longer alive.
Mr Desmond: In my submission whilst it is probably the most adequate direction that could be given it is wholly inadequate for the purposes of the jury understanding why barristers, defence barristers, aren’t actually making the accusation “you are lying” when they have got the opportunity to.
Her Honour: Can I tell you I will make it abundantly clear – this is just talking off the top of my head – if this material goes in it would have to be tailored very specifically to deal with this sort of issue. My concern is not so much that you are losing an opportunity to put to him that “you lied you lied you lied”. My concern is whether or not these areas have in fact been challenged in some way or tested because if they haven’t then I think you have got a much stronger argument.
Having examined all of the points made in paragraph 17, I am of the view that as far as the specific complaint that there were no challenges to those aspects as listed there that that is not an accurate assessment. The witness was tested and in most cases challenged as to the accuracy, reliability, recollection and occurrence of the events referred to with the exception of the puttage that Sean Sonnet told Michael Thorneycroft that Carl Williams had told him Mario Condello was living in the city and he had convinced him that Mario Condello was living in Brighton. That is nothing more than the puttage of instructions and if required, if it is persisted with at trial, that matter can be dealt with quite simply by instructions to the jury.
As to what is contained in points, 1, through to 13, in the document tendered by defence counsel, they are nothing more than the listing of areas that are disputed, which are disputed, as I understand it, on the instructions of Mr Sonnet. They have been cross-examined on and any comments that counsel wishes to make to the jury, if there is any alternative version given, are there and available as a result of the cross-examination. As was stated by Justice Chernov in R v Cacic:
… that there was a conflict between her evidence and that of Jones on two factual matters did not render her earlier testimony relevantly inadequate. This conflict was one for the jury to resolve and, in my view, it could not be said that it caused Paull’s earlier testimony to lack “quality” in the sense that that term was used in Scott.
One would expect there to be some form of dispute between the witness and the accused man as to precisely what occurred if he maintains he is not guilty of the offence.
As to point 16 which was that the accused did not squarely put the defence to the witness Thorneycroft at the committal as to points (a), (b), (c), (d), (e), (f), (g) and (h). Once again they are put as not being challenged. All of those matters were in fact questioned at the committal and on those issues in respect of most of them there were in fact challenges, although not in each case was any specific instruction put as to what Mr Sonnet’s version may or may not have been. But the manner in which he was cross-examined leaves no doubt that there was a dispute as to the accuracy and veracity of those areas of his evidence.
The purpose of cross-examination is to test the accuracy, reliability and truthfulness of witnesses. It is not an opportunity for counsel just to put to the witness “you are telling lies”, or to merely put the instructions of his client.
Point 14 is that the statements remain untested by trial cross examination. That is undoubtedly true and will remain the situation if the evidence is admitted, but it is hard to imagine a clearer case in which the evidence has been tested and thoroughly scrutinised. The witness is cross examined over a number of days by arguably some of the most experienced and able counsel practising in the criminal jurisdiction, it is recorded, with all the nuances and intonations available to be heard. The witness is not seen, but that is a very small point in comparison to be being able to hear him. If the trial cross examination is only the ability to put to the witness that he is lying or put the instructions of the accused, then the loss is, in my view, minimal.
Point 15 is that - ‘in relation to the second statement, Thorneycroft agreed that despite having said it was true and correct he hadn’t even read the same.’ It is clear from the material, that he was referring to the fact that he hadn’t read it recently, and if counsel wishes to pursue that point with the jury, the ability to make the comment is contained within the material. I do not consider that this is a point of any real substance.
The witness Thorneycroft, if his evidence is permitted to be given will, be the subject of a strong warning to the jury as he was an accomplice for at least part, if not most, of the alleged conspiracy. They will be cautioned that it is dangerous to convict upon his evidence unless it is corroborated, so that they will have to look for corroboration of that evidence, examine that material to see if there is anything that does corroborate the evidence and that will be combined with the warning about the problems of the death of Thorneycroft has created for the defence, particularly in this case the forensic disadvantage that they would face.
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 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.
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