R v Sonnet (Ruling No 2) - [2011] VSC 551

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 702 of 2008

THE QUEEN

SEAN SONNET

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATES OF HEARING:	24 & 25 October 2011
DATE OF RULING:	28 October 2011
CASE MAY BE CITED AS:	R v Sonnet (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2011] VSC 551

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CRIMINAL LAW – Conspiracy to murder – Re-trial – Whether evidence of the accused at the first trial can be relied on in the re-trial – Unfairness – Evidence Act 2008 s 90 – Evidence excluded.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B Kissane	Office of Public Prosecutions
For the Accused	Mr G Meredith and Mr M Kowalski	Emma Turnbull

HIS HONOUR:

Sean Sonnet is charged with one count of conspiracy to murder and his trial is due to commence on 7 November 2011. The trial will be a re-trial pursuant to an order of the Court of Appeal on 1 December 2010. The count in the indictment is now in the following terms:

The Director of Public Prosecutions charges that SEAN JASON SONNET at Melbourne in Victoria between the 29^th day of May 2004 and the 9^th day of June 2004 agreed together with MICHAEL THORNEYCROFT, CARL ANTHONY WILLIAMS and GREGG HILDERBRANDT to pursue a course of conduct which would involve the commission of an offence namely the murder of a person unknown.
Statement of Offence – Conspiracy to Murder contrary to s.321I of the Crimes Act 1958.

A preliminary issue has arisen as to whether the prosecutor should be permitted to lead a record of the evidence given by the accused at his first trial as part of the prosecution case on this trial. Such an issue would ordinarily be straightforward,[1] but not so in this case. To understand how the issue arises it is necessary for me to summarise some of the background.
[1]See for example R v Mills [1986] VR 617 per Southwell J.

On Wednesday 9 June 2004, Sean Sonnet and Gregg Hildebrandt were arrested by police in North Road, East Brighton near the main entrance to the Brighton Cemetery. At about the same time, Carl Williams and Michael Thorneycroft were arrested at other locations in Melbourne. Each of the four men were charged with conspiracy to murder Mario Condello.

When Sonnet was arrested and searched he was found with two loaded firearms in his possession. Apparently for the purpose of communicating with Hildebrandt, he was also in possession of a two-way radio. The Crown case against Sonnet at his first trial was that he was acting pursuant to an arrangement with Williams and the other participants to murder Mario Condello who lived in the vicinity at 292 North Road in East Brighton.

The participants having been arrested, Thorneycroft, Hildebrandt and Williams pleaded guilty at various stages. Sonnet was the only one of the four to plead not guilty. Thorneycroft pleaded guilty at an early stage and on 22 July 2004…

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 2)

Details

AGLC: R v Sonnet (Ruling No 2) [2011] VSC 551
Case: [2011] VSC 551
Decision Date: 28 October 2011

CaseChat Overview and Summary

In the matter of the Crown versus Sonnet, the appellant faced a re-trial for the charge of conspiracy to murder. The original trial had resulted in an acquittal due to a legal error, prompting a re-trial. The central issue for the court was whether evidence given by Sonnet during the first trial could be relied upon during the re-trial. The appellant argued that the inclusion of such evidence would render the re-trial unfair, in breach of the principles of natural justice.

The court considered whether the use of the appellant’s evidence from the first trial would contravene the provisions of the Evidence Act 2008, particularly section 90, which addresses the exclusion of evidence obtained unfairly. The court was tasked with balancing the fairness of the re-trial against the interests of justice and the rights of the accused. It found that allowing the evidence from the first trial would compromise the fairness of the re-trial, potentially prejudicing the jury and contravening the statutory requirement for a fair trial.

Ultimately, the court ruled that the evidence given by Sonnet at the first trial should not be admissible in the re-trial. This decision was grounded in the need to uphold the integrity of the judicial process and to ensure that the re-trial was conducted fairly. The court held that the exclusion of the evidence was necessary to comply with the requirements of the Evidence Act 2008 and to protect the appellant's right to a fair hearing. The court emphasised that this ruling was essential to maintain the principles of natural justice in the judicial system.

Orders