R v Sonnet (Ruling No 2)
[2011] VSC 551
•28 October 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 702 of 2008
| THE QUEEN |
| v |
| 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 29th day of May 2004 and the 9th 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 he was sentenced to three years’ imprisonment, wholly suspended. On 15 December 2006, Hildebrant, was presented in the Supreme Court on one count of conspiracy to murder Mario Condello. He pleaded guilty and was sentenced to 13 years’ imprisonment with a non-parole period of nine years.[2] Williams ultimately pleaded guilty and was sentenced to 25 years’ imprisonment with no minimum, as part of a sentence comprising three separate sentences for murder, with an overall minimum term of 35 years.
[2] See R v Gregg James Hildebrandt [2008] VSCA 142.
On 9 June 2004, Thorneycroft indicated to police that he was willing to assist them and later made two statements to police implicating the accused Sonnet in the conspiracy. Importantly, on 9 June 2004 Thorneycroft spoke with a police officer, Detective Senior Constable Scott Wallace, in a recorded conversation outlining what he could say to assist the police investigation. Thorneycroft was cross-examined about his police statements at the committal proceedings for Sonnet commencing on 21 March 2005. However, the fact of the conversation between Wallace and Thorneycroft on 9 June 2004 had not been disclosed to the accused at that stage. In May 2007, before Sonnet’s trial, Thorneycroft died of a drug overdose never having been cross-examined about the inconsistencies between his formal police statements and his representations to Wallace on 9 June 2004, which were later analysed by the Court of Appeal.
On the 13th day of August 2007, the accused was presented for trial before King J in this Court. As I have already noted, the count on which he was tried alleged that between 29 May 2004 and 9 June 2004 he conspired with Thorneycroft, Hildebrandt and Williams to murder Mario Condello. As part of the prosecution case in that trial, and over the objection of the accused, the Crown put forward the statements and committal transcript of Thorneycroft pursuant to s 55AB of the Evidence Act 1958. That evidence was significant in the Crown case as I will later describe.
At the conclusion of the trial the accused was found guilty by the jury of the count of conspiracy. He had earlier pleaded guilty to other matters relating to the theft of a motor car and firearms offences. He was sentenced by King J to a total effective sentence of 20 years’ imprisonment with a non-parole period of 16 years.
On 21 September 2010, the accused sought leave to appeal in the Court of Appeal in relation to that conviction and on 1 December 2010 the Court allowed the appeal and ordered a re-trial.[3] The appeal was decided on the basis that the trial judge erred in the exercise of the fairness discretion and that she should have excluded the statement and committal cross-examination of Michael Thorneycroft from the evidence at the trial.[4] In concluding their judgment the Court said:
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.
Counsel for the applicant submitted that, given Thorneycroft’s statement would have to be excluded from evidence at any re-trial, a judgment and verdict of acquittal should be entered. We reject that contention. Despite the importance of Thorneycroft’s statement to the Crown case, we consider that there was sufficient evidence apart from the statement to sustain a conviction. We will order accordingly that a new trial be had.[5]
[3]Sonnet v R [2010] VSCA 315 per Nettle and Harper JJA and T Forrest AJA.
[4]Ibid. at [77].
[5]Ibid. at [129] – [130].
Once this matter was allocated to me as the trial judge for the re-trial of the accused, the Director of Public Prosecutions effectively applied to revisit the question of the admissibility of the Thorneycroft deposition notwithstanding the judgment of the Court of Appeal. On 17 March 2011, the prosecutor Mr Kissane of counsel, submitted that despite the judgment of the Court of Appeal I should admit the depositions of Thorneycroft on the re-trial of Sonnet, primarily because this trial will be conducted under the Evidence Act 2008 as opposed to the Evidence Act 1958. He argued that the principles under the later Act which govern the reception of evidence of this nature are significantly different. On behalf of the accused, Mr Kowalski of counsel submitted that I was bound by the decision of the Court of Appeal and the change in the legislation affecting the admissibility of evidence was not such as to enable me to do other than comply with the Court of Appeal’s conclusion. I ruled as follows:
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 Act 2008.
Instead the Court of Appeal decided the case on the basis that the accused lost a “fair chance of acquittal” 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 changes 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 ability to cross-examine Thorneycroft about these matters, that loss remains and is not ameliorated by the advent of the Evidence Act 2008.[6]
[6]R v Sean Jason Sonnet [2011] VSC 97R per Lasry J.
At his first trial, the accused gave evidence on oath. In effect, in that evidence he admitted that he had participated in the making of an agreement that a person be killed, but claimed that he had never intended to participate or complete his role in the arrangement. In giving evidence, and despite the exhortations of the then prosecutor and the trial judge, he refused to say who the target of the agreement was. It is sufficient to note that in his evidence the accused effectively identified the voices of himself and the other participants in the conspiracy, as well as relevant sounds of firearms on the electronic recording evidence of these events, and the surrounding conversations leading to them. There is no question that the evidence sought to be admitted is relevant and probative.
Thus, the question now for determination is whether or not the prosecutor should be permitted to put the evidence of the accused at the first trial before the jury on this trial. As I have earlier noted on this trial, the accused faces one count in the following terms:
The Director of Public Prosecutions charges that Sean Jason Sonnet at Melbourne in Victoria between the 29th day of May 2004 and the 9th day of June 2004 agreed together with Michael Thorneycroft, Carl Anthony Williams and Gregg Hildebrandt to pursue a course of conduct which would involve the commission of an offence namely the murder of a person unknown.
In view of the judgment of the Court of Appeal and my subsequent ruling in relation to the depositions of Thorneycroft, it is not possible for the prosecution to conduct the case on the basis that the target of the conspiracy was Mario Condello, hence the reformulation of the present count.
Mr Meredith of counsel who appears with Mr Kowalski on behalf of the accused, has submitted that I should not permit the Crown to put the evidence of the accused at his first trial before the jury in this trial. He has made that submission on a number of separate bases, each of which depends on sections of the Evidence Act2008, specifically to ss 84, 90, 135, 137 and 138.
Section 84 is concerned with the exclusion of admissions influenced by violence in certain other conduct and was raised for discussion in the application before me. Section 85 concerns the reliability of admissions by an accused person and, in particular, making admissions inadmissible unless the circumstances in which the admission were made was such as to make it unlikely that the truth of the admission was adversely affected. Section 86 is only concerned with oral admissions made to an investigating official in response to a question put or representation made by the official. Of course, this case is not concerned with the admissibility of an admission made in the course of questioning of the kind contemplated by ss 84, 85 and 86. After some refining of the argument by counsel for the accused, I understood that his primary submission was that this matter fell to be determined by reference to s 90, although he specifically did not abandon his alternative reliance on the other sections I have mentioned.
For the reasons that follow, I have concluded that I should exclude the evidence upon considerations of fairness. I therefore will only deal in detail with the reliance placed on s 90 of the Evidence Act 2008. Given the nature of this application and the manner in which it has arisen, I am not convinced that ss 84 and 138 are appropriate bases to deal with the matter and, given the conclusion I have reached, I do not need to express a view on ss 135 or 137.
Evidence by the accused
Before me, the accused submitted that the miscarriage of justice that had occurred had a significant effect on the accused. In response to a Crown case which included the Thorneycroft depositions, which the Court of Appeal said should not have been admitted, the accused was faced with deciding whether or not to give evidence. On this application, the accused gave evidence on that issue. His evidence included the following:[7]
[7]Transcript (25 October 2011) at 101.
MR MEREDITH: You said that Thorneycroft's evidence was crushing? -- Yes. You felt you had to respond to it? --- Yes.
What if Thorneycroft's evidence hadn't gone in? --- I wasn't going to give evidence.
If you hadn't given evidence, what was your belief about the state of the evidence as to who the target was if the Crown didn't have Thorneycroft? --- I believed, from listening to what the court had said from the judge and the prosecutor that they wouldn't be able to prove their case on the elements of who the actual target was, what the actual conspiracy was, and that they would fail to actually get - they would fail to get up on a no case submission I would have won.
And with Thorneycroft's evidence go in? --- I felt then I had no option.
And that you had to mount a positive defence? --- And I had to mount a positive defence.
Are you saying that otherwise - - -? --- I would never have got in the witness box.
Because? --- The Thorneycroft evidence went in, I felt that I had no option but to get in the witness box and mount a positive defence to the Thorneycroft evidence going in.
And without that evidence, you mentioned a potential no case? --- From what I heard the judge say and I heard the prosecutor say, coming from her own mouth, that I wouldn't have had a case to answer.
All I can say about that evidence is that it is not at the basis of the decision I have come to. It is sufficient to note that the Thorneycroft deposition occupied a significant role in the Crown case. That evidence identified Carl Williams as Thorneycroft’s cousin and nominated the accused and Williams as being involved in the conspiracy to murder. His evidence implicated Hildebrandt in storing Sonnet’s gun and indicated that he, Thorneycroft, was to be the driver for Sonnet to shoot someone. His evidence described the planning meeting with Sonnet and Williams which, as I understand it, was held at the Westmeadows Hotel. He had identified the target as being Mario who was the “money man for the other side”. The Thorneycroft evidence described the association between the Carl Williams and the accused. It described the request that the accused was said to have made of Thorneycroft to drive him while he shot someone named Mario and that Sonnet was to be paid between $120,000 and $140,000. He identified the house as the target and surveillance was conducted on it. Thorneycroft said he was to steal the getaway vehicle. He was informed by the accused that “Mario” walked his dog every morning and that Sonnet proposed to shoot “Mario” at his children’s school. Thorneycroft said that he withdrew from the arrangement and that he drove the stolen getaway car to an area near Hildebrandt’s place.
During the course of the debate before King J in relation to whether or not this evidence should be admitted, the then prosecutor Mr Horgan SC made a number of submissions about the significance of the Thorneycroft evidence. The effect of his submissions was that the Crown case as it was then formulated would be not able to be proved without the Thorneycroft depositions being before the jury
Submissions
On behalf of the accused, Mr Meredith, in dealing with s 90 of the Evidence Act 2008, accepted that the burden of establishing unfairness rested on him and described the nature of the unfairness as being an “abrogation of procedural safeguards” which had the result of creating a situation where the relevant admissions may not have been made if those procedural safeguards were properly adhered to.[8] The submission was based on the observations of Brennan CJ in R v Swaffield[9] where, in effect, what was being put on behalf of the accused was that but for the admission of the Thorneycroft deposition the accused may not have given evidence and therefore it would be unfair to use that evidence in the Crown case on this trial. Mr Kissane, on behalf of the prosecution, submitted that on the basis of authorities to which he referred, the evidence was admissible. Mr Kissane effectively submitted that there was no unfairness in it being admitted as part of the Crown case in this re-trial. Some reliance was placed by Mr Kissane on the judgment of the High Court in Stewart v The King,[10] where the High Court concluded that:
We do not doubt that the voluntary statements of a prisoner on a trial for an offence, which is inconclusive, may be used on a second trial for the same offence. The fact that the statements were made under cross-examination does not destroy their voluntary character. The extent to which such evidence can be used is the question here.[11]
[8]Transcript (24 October 2011) at 38.
[9](1998) 192 CLR 159 at page 174.
[10](1921) 29 CLR 234 per Knox CJ, Gavin, Duffy, Rich and Stark JJ.
[11]Ibid at 240-241.
The Court went on to order a re-trial on the basis that the issue of character had not been put in issue in the second trial of the accused and therefore should have been excluded. It should be noted that the conviction in the first trial in that case was apparently set aside because of the “improper reception of evidence”. No further details are given. That case is referred to by Southwell J in R v Mills.[12]In that case, Southwell J ruled that on a re-trial of an accused person for murder the unsworn statement made by the accused at the earlier trial was admissible. The first trial was conducted to completion but the jury were unable to agree on a verdict.
[12](1986) VR 617 at 618.
It seems to me as a matter of ordinary principle that prima facie when an accused person gives evidence at his or her trial and there is a re-trial, the evidence given is admissible unless it would be unfair to use that evidence on that second trial.
Dealing specifically with s 90, the Crown submitted first that there was nothing unreliable about the evidence proposed to be led and that it was not possible to assess what part the admission of the evidence of Thorneycroft played in the decision by the accused to enter the witness box.
The prosecution submitted that Sonnet’s choice was a free choice and he answered questions about a range of matters. In particular he did not directly contradict Thorneycroft’s evidence but rather sought to explain his own conduct in a manner inconsistent with being an intentional member of the conspiracy. Therefore, it was submitted it was not unfair to admit the evidence. The prosecutor also referred me to the judgment of the New South Wales Court of Criminal Appeal in R v Heffernan & Peters.[13]In that case, the accused had appealed against their convictions in relation to the disposal of stolen cigarettes and also supplying cannabis. They had each pleaded guilty following an unsuccessful challenge to the admissibility of certain evidence which they had given at an earlier trial.
[13]Unreported, Nos. 60394/1997 and 60395/1997 (16 June 1998) per Smart, James and Sperling JJ.
The earlier trial involved allegations that they had been involved in the distribution of heroin. At that trial the accused gave evidence and explained some of the recordings of incriminating conversations on the basis that they were talking about supplying cannabis and not heroin. They were acquitted but were later advised that they would be presented on an ex officio indictment in relation to their admissions concerning marijuana and the question arose as to whether or not the evidence they gave at the trial should be admitted against them on the later trial. The complication was that police evidence given at their first trial was now able to be demonstrated to be fabricated evidence as a result of evidence given by a police officer at the New South Wales Royal Commission into the Police Service.
The trial judge at the second trial decided to admit the evidence given at the first trial proceeding on the assumption that significant police evidence had been fabricated at the first trial. The Court of Criminal Appeal agreed and in analysing what the Court referred to as the “residual discretion” concluded that the facts of the case compelled the conclusion that the evidence of the accused at the heroin trial admitting the offences the subject of the later trial should be admitted. In the course of the Court’s reasons, their Honours said:
As to whether convictions, following a trial in which the evidence of admissions was given, would be brought at too high a price, the police misconduct in relation to the heroin trial was not directed to obtaining admissions that the appellants had engaged in supplying marijuana and disposing of stolen cigarettes. The police were not really interested in these matters. Their object was to convict those involved in what they believe was a heroin supply ring. The two suppliers of heroin to the police undercover officer reinforced that belief. The extensive police operation was addressed to uncovering and prosecuting major drug offences. The police paid no heed to the evidence available of supplying marijuana and disposing of stolen cigarettes.
The evidence which the police allegedly fabricated or endeavoured to twist was only part of the Crown case. The jury was able to make up its own mind and reject, as Judge Nash did, the mixed interpretations, the slanted interpretations and the errors of the police in transcribing the contents of the tapes. The judge and jury were also able to identify the police evidence which was unsatisfactory. [14]
[14]Ibid. at 19, per Smart, James and Sperling JJ.
In my opinion there are significant differences between that case and the case before me. In Heffernan & Peters, the accused, on their first trial, were acquitted of the offences with which they were charged. They gave their evidence in a trial that was not impugned as the outcome clearly demonstrates, albeit that it turned out that some police evidence may have been false. Their evidence was not given during a trial which could be described as unfair or producing a miscarriage of justice.
It is also significant that, unlike the accused, Sonnet, Heffernan and Peters admitted to criminal conduct but not the criminal conduct with which they were initially charged. To the extent that the Crown in this case sought to rely on that case as supporting the conclusion they submitted I should reach, I would distinguish it.
Section 90 of the Evidence Act 2008
It is not in contention that what was said by the accused in his evidence at the first trial is an admission which falls within the meaning of s 90, which is in the following terms:
90 Discretion to exclude admissions
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if—
(a)the evidence is adduced by the prosecution; and
(b)having regard to the circumstances in which the admission was made, it would be unfair to an accused to use the evidence.
The dictionary in the Act provides that an “admission” is a previous representation that is—
(a)made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and
(b)adverse to the person's interest in the outcome of the proceeding.
In many of the cases which concern this section of the Act, the subject matter is questioning by police in various circumstances. However, in EM v The Queen,[15] the High Court concluded that the language in s 90 of the Evidence Act 2008 is so general that it would not be possible in any particular case to mark out the full extent of its meaning. Gleeson CJ and Heydon J noted that the application of s 90 is “likely to be highly fact-specific”.[16] Their Honours also noted that the onus of demonstrating that it would be unfair to use the evidence lay on the accused person asserting the unfairness. In the judgment of Gummow and Hayne JJ (agreeing that the appeal should be dismissed), their Honours said:
As pointed out at the commencement of these reasons, the central issue is whether the evidence of admissions should not have been admitted because, having regard to the circumstances in which they were made, it would be unfair to the defendant to use the evidence. That question requires consideration of whether there was identified some aspect of the circumstances in which the admissions were made that revealed why the use of the evidence at the trial of the person who made the admissions, “would be unfair”. That is, the focus of section 90 falls upon the fairness of using the evidence at trial, not directly upon characterising the circumstances in which the admissions were made, including the means by which the admissions were elicited, as “fair” or “unfair”. [17]
[15](2007) 232 CLR 67.
[16]Ibid. at [56].
[17]Ibid. at [107].
Gummow and Hayne JJ said that when it is unfair to use evidence at the trial of an accused person is not able to be described exhaustively:
Unfairness whether for the purposes of the common law discretion or for the purposes of section 90 may arise in different ways. But many cases in which the use of evidence of an out-of-Court admission would be judged, in the exercise of the common law discretion, to be unfair to the accused are dealt with expressly by particular provisions of the Act other than section 90.[18]
[18]Ibid. at [109]. I note that their Honours were there referring to the operation of ss 84, 85 and 86 of the Evidence Act 2008.
Their Honours also observed:
Because the chief focus of the common law discretion falls upon the fairness of using the accused person’s out of court statement, not upon any purpose of disciplining police or controlling investigative methods, the reliability of what was said out of court is important to the exercise of that discretion.[19]
[19]Ibid. at [111].
I should note that no question of the reliability of what was said by the accused in the course of his evidence on his first trial is raised in this case as part of the submission made on his behalf.
In dealing with what amounts to unfairness, in his dissenting judgment in EM v The Queen, Kirby J noted that:
Moreover, what is unfair will vary over time in response to changing community attitudes and perceptions. The language of section 90 of the Act expresses the concept of unfairness “in the widest possible form”,[20]
and his Honour there refers to the judgment of the Court in R v Swaffield.[21]
and later:
In R v Swaffield, the joint reasons in this Court acknowledged that the term “unfairness” lacks precision and demands an evaluation of all the relevant circumstances. As noted in Van Der Meer v The Queen, it is not concerned as such with unfair conduct on the part of the police, but rather with whether it would be unfair to the accused to use his statement containing admissions against him.[22]
[20]Ibid. at [77].
[21](1998) 192 CLR 159 at 193.
[22]Ibid. at 191, references omitted.
Kirby J concluded that the unfairness provisions in s 90 were intended to confer a “power or discretion” on a trial judge in criminal proceedings to reject prosecution evidence, that is at least as broad as that which was provided previously by the common law. His Honour allowed for the possibility that s 90 actually “casts a wider net”.
So, in this case, commencing the analysis of whether the Crown’s failure to disclose the transcript of the Thorneycroft interview with Wallace rendered the trial unfair the Court of Appeal said:
In light of what the High Court said in R v Grey, we take the law to be that if the 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 concessions as to the importance of Thorneycroft’s evidence would have been productive of a substantial miscarriage of justice.[23]
[23]Sonnet v R [2010] VSCA 315 at [55] per Nettle and Harper JJA and T Forrest AJA; references omitted.
The Court went on to conclude that that is what had occurred.
Conclusion
In my opinion, as I have already observed, I consider I should exclude the evidence given by the accused at his first trial. Unlike the case of R v Heffernan & Peters, the accused gave evidence and was convicted during a trial which the Court of Appeal concluded represented a miscarriage of justice and in respect of which the accused is said to have lost a “realistic chance of acquittal”. In my opinion, it would be unfair to the accused in the conduct of this trial for the Crown to gain a forensic advantage as a result of a trial which the Court has ruled was productive of a miscarriage of justice.
As I earlier noted. Mr Meredith has sought to rely on the following passage from the judgment of the High Court in R v Swaffield:[24]
[24](1998) 192 CLR 159 at [19], my emphasis is underlined; references omitted.
…in Van der Meer, Mason CJ allowed a wider operation to the fairness discretion. In the circumstances of that case, he observed that:
"[T]he police conduct of the interrogation was such as to make it unfair to use the later statements made by Ayliffe and those made by Storhannus against them. Had the police observed the principles governing the interrogation of suspects, it might well have transpired that the statements would not have been made or not have been made in the form in which they were made. (Emphasis added.)"
His Honour found unfairness not in the admitting of a confession of dubious reliability but in the admitting of a confession that might not have been made or not made in the same form but for the improper conduct of the police.
However, in my opinion the question does not depend on the nature of the conduct leading to the non-disclosure of the Thorneycroft interview or whether the accused might not have given evidence if the trial had taken a different course and the Thorneycroft deposition had not been admitted. The fact is it was admitted and the Court of Appeal have ruled that it produced a miscarriage of justice. Had the trial judge in the accused’s first trial excluded the Thorneycroft evidence then it is likely that the trial would have proceeded as this one is expected to, with an inability to identify Condello as the target of the conspiracy and relying only on the observations of police and other witnesses, coupled with the electronic evidence. Whether the accused would have given evidence is open to debate but, obviously, the Crown would not have had the forensic benefit of any earlier evidence given the accused such as the evidence that they now seek.
Therefore, to some extent my reasoning is similar to the ruling I delivered on 22 March 2011. To permit the Crown to gain any forensic advantage from the first trial of the accused is at odds with the effect of the Court of Appeal’s decision and would be unfair to the accused in the trial that is about to commence. I will, therefore, not permit the Crown to lead the record of the evidence given by the accused at his trial in this trial.
Before leaving the matter, I note that some attention was paid to whether or not the accused could be cross-examined in this trial about his earlier evidence if he chose to again enter the witness box. Consistent with this ruling he could not be so cross‑examined without my leave. It may well be, as Mr Kissane said in the course of argument,[25] that if the accused gave evidence which was totally inconsistent with the position that he put at his the first trial, I might consider granting leave. It should not be considered that his protection from being cross‑examined about his earlier evidence is absolute.
[25]Transcript (24 October 2011) at 93.
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