R v Sonnet (Ruling No 2)
[2007] VSC 584
•20 August 2007
| IN THE SUPREME COURT OF VICTORIA | Revised | |
AT MELBOURNE
No. 1443 of 2005
| THE QUEEN |
| v |
| SEAN SONNET |
RULING NO. 2
---
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 584 | |
---
Application for permanent stay, death of witness, adverse publicity, delay, fair trial, application refused
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Horgan SC | Solicitor for the office of Public Prosecutions |
| For the Accused | Mr J Desmond | Robert Stary and Associates |
HER HONOUR:
Mr Desmond, counsel for Mr Sonnet, has made application for a permanent stay of the proceedings. The basis of the application is threefold – first, being delay; second, being the prejudice that flows if the evidence of Michael Thorneycroft, who is now dead, is admitted pursuant to s 55AB of the Evidence Act 1958; and third, being the adverse publicity that has flowed in respect of this particular offence, his alleged co-offenders and their involvement in a number of other murders.
In relation to the issue of delay, Sonnet was fact arrested on Wednesday, 9 June 2004, remanded in custody and has remained in custody until this date, August of 2007 – a period of some three years and two months. The delay came about through no fault of the accused but occurred predominantly due to the fact that one of the alleged co-conspirators, Carl Williams, had a number of trials which he had to face. He could not of course be present to deal with a number of trials if they were all being heard simultaneously, and in each case there were a significant number of co-accused. Accordingly, there had to be in order in which the trials took place. The first trial that was heard was the trial of the murder of Michael Marshall. The next trial that was due to be heard was the trial of the murders of Jason Moran and Pasquale Barbaro. Immediately before the empanelment of that jury, Williams indicated that he intended to plead guilty to a number of offences including this offence of conspiracy to murder Condello. The plea in respect of those matters was heard on 27 and 30 April 2007 and Mr Williams was sentenced on 7 May 2007. As I said, none of this is the fault of the accused man Sonnet, but realities also have a part to play in respect of at least examining the reasons for delay.
It was argued by Mr Desmond that the delay has resulted in the unavailability of Michael Thorneycroft to give evidence in this case. Michael Thorneycroft was a known drug addict who gave evidence at the committal proceedings in respect of this matter. He was, on his own evidence, a co-conspirator for at least a major part of the time of the conspiracy which is being tried in this case. After the committal and before, this trial he died of an overdose. It is not my view that the delay is the cause of Michael Thorneycroft being unavailable but there is indeed a relevance in looking at the aspect of the unavailability of Thorneycroft and having now ruled that his evidence is admissible pursuant to s 55AB of the Evidence Act any unfairness may flow to the defence. As that ruling makes clear, I am of the view that whilst there may be some prejudice that may flow to the defence it is capable of being dealt with by clear directions to the jury and is not in my view a very significant factor.
Mr Desmond relied upon the two factors that the death of Thorneycroft has resulted in the defence not being able to do “puttage” in respect of a positive defence based upon the instructions of the accused and not being able to directly challenge the statements made by Thorneycroft as being lies and obtaining from Thorneycroft his response. As I indicated in the ruling in respect of the admissibility of this evidence they are not in my view significant matters but they are matters that have some relevance in respect of the totality of this application. Accordingly, I accept that there is delay, in that three years and two months is a significant time, and I accept that there are limitations and restrictions upon the ability of counsel to test the evidence and suggest a positive version of the events to the witness Thorneycroft, although it is of course a matter of degree. The third limb upon which the defence rely relates to the publicity surrounding these matters.
In relation to the Williams’ plea and sentence to which I have earlier referred, complaint was made of the publication of particular documents subsequent to that occurring being in the submission of defence counsel and I quote page 55:
The most unusual event occurring of the DPP himself appearing on a television program concerning Carl Williams on ‘The day of reckoning’ on Channel 9 and in particular again one of the States senior crown prosecutors Mr Horgan appearing on a program called Stateline on the ABC which was broadcast on 2 March 2007.
Then continuing at a later stage he made references to the content of the Stateline program, which he submitted may concern the issue of this conspiracy to murder, as opposed to the murders to which Williams had pleaded:
Q.Geoff Horgan, why did the prosecutors do a deal with a multiple murderer?
A.Geoff Horgan: Well I suppose for two reasons, one we get rid of all these matters, all of the Williams’ matters, many of the Piranha matters and they could take years and years and years to prosecute successfully. The second reason is although we think we have got strong cases or a strong case ahead of us we don’t know. All these cases are dependent on what a jury will do. While we think we have a good case we can’t be certain. I suppose the adage a bird in the hand is worth two in the bush applies.
Q.So the deal involved him pleading guilty to three murders?
A.Geoff Horgan: to three murders and a conspiracy to murder. I don’t know whether that has been said clearly. Everyone has spoken about three murders but also a conspiracy to murder and he has already been convicted of one murder after a jury trial.
Mr Desmond relied upon the Channel 9 program, containing the interview with the Director of Public Prosecutions, as having similar material contained within it although he did not have a transcript of that program.
Mr Desmond then referred to a series of articles that he had obtained from a service called Factiva which enables a worldwide search of newspapers but which he had confined to Australia and New Zealand. The most recent mention of the accused Sean Sonnet in relation to those searches was from 7 February 2006 and that article related to the murder of Mario Condello which had occurred the day before, it mentioned his name, and a reference to the fact that in June 2004 four men were charged over the plot to kill Condello including Sonnet. It listed only the allegations. Then an article in November 2005 relating to Zara Garde-Wilson which referred to her acting for a number of the so-called gangland criminals and also “Sean Sonnet” who was infamously involved in ‘the trial from hell’ when a bag of excrement was thrown at a jury. In April 2005 there was an article relating to the refusal of bail for Greg Hildebrandt, and it mentioned the names of his co accused. There were other articles referred to, but all were earlier in time than those to which I have specifically referred.
There has been, in relation to Sonnet, a suppression order in place for some time, and apart from the material mentioned at the time of the Williams’ plea, he has not been the subject of publicity since February 2006. The original media reports in respect of this and the arrest, and the circumstances of the arrest, date back to June 2004. It was submitted that the circumstances of the arrest and the alleged offending were such a significant event in the Melbourne community that it would not easily be forgotten. After the Williams’ sentence the references to the conspiracy to murder Condello, to which he pleaded guilty, did not contain the name Sean Sonnet.
It is well established that the courts have an inherent jurisdiction to control the criminal process and protect the fundamental right of the citizen to a fair trial. This inherent jurisdiction has been recognised by the High Court in Barton v The Queen;[1] Jago v District Court of NSW[2] and Dietrich v The Queen[3] and referred to in many other cases. In Jago, Deane J described the right to a fair trial as follows:
The central prescript of our criminal law is that no person shall be convicted of crime otherwise than after a fair trial according to law. A conviction cannot stand if irregularity or prejudicial occurrence has permeated or affected proceedings to an extent that the overall trial has been rendered unfair or has lost its character as a trial according to law.
As a matter of ordinary language, it is customary to refer in compendious terms to an accused's "right to a fair trial". I shall, on occasion, do so in this judgment. Strictly speaking, however, there is no such directly enforceable "right" since no person has the right to insist upon being prosecuted or tried by the State. What is involved is more accurately expressed in negative terms as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial.
The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one. Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment. The best that one can do is to formulate relevant general propositions and examples derived from past experience.
[1](1980) 147 CLR 75.
[2](1989) 168 CLR 292.
[3](1992) 177 CLR 292.
In Jago, Brennan J referred to the fairness test as follows:
The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial: see Barton, at pp 102, 106; Sang, at p 437; Carver v. Attorney-General (NSW) (1987) 29 A Crim R 24, at pp 31, 32. At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused: Barker v. Wingo [1972] USSC 144; (1972) 407 US 514; Bell v. D.P.P. (1985) AC 937, as explained in Watson, and Gorman v. Fitzpatrick (1987) 32 A Crim R 330. In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare: Re Cooney (1987) 31 A Crim R 256, at pp 263-264.
Brennan J further observed:
Obstacles in the way of a fair trial are often encountered in administering criminal justice. Adverse publicity in the reporting of notorious crimes (Murphy v. The Queen[1989] HCA 28; (1989) 63 ALJR 422; 86 ALR 35), adverse revelations in a public inquiry (Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25), absence of competent representation (McInnis v. The Queen[1979] HCA 65; (1979) 143 CLR 575; MacPherson v. The Queen[1981] HCA 46; (1981) 147 CLR 512), or the death or unavailability of a witness, may present obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed. Unfairness occasioned by circumstances outside the court's control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.
Ultimately Brennan J in Jago stated how courts should deal with the issue when he stated:
By the flexible use of the power to control procedure and by the giving of forthright directions to a jury, a judge can eliminate or virtually eliminate unfairness. The judge's responsibilities are heavy but they are not discharged by abdication of the court's duty to try the case. If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the courts can make it. Were it otherwise, trials would be prevented and convictions would be set aside when circumstances outside judicial control impair absolute fairness. To take an obvious example, the administration of the criminal law in notorious cases could be brought to a halt by adverse media publicity. To admit a power to stay a case permanently for delay causing prejudice seems wrongly to undervalue the efficacy of the orders, rulings and directions of a trial judge in removing unfairness to an accused caused by delay or other misconduct by the prosecution.
Finally Mason C.J. cited with approval a statement from Wilson J in Barton v The Queen (1980) 147 CLR at page 111 which said:
To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences'.
The concept of a perfect trial is not always attainable and as Brooking J said in Jarvie v. Magistrates' Court of Victoria [1995] 1 VR 84 at 90 a “ ... fair trial does not mean a perfect trial , free from possible detriment or disadvantage of any kind or degree to the accused”.
In this case there is some disadvantage to the accused man, predominately as a result of the death of the witness Michael Thorneycroft. The reasons for the delay are clearly explained and justified, with the only real of consequence of delay that disadvantages the accused being the death of Thorneycroft. The publicity has clearly been extremely limited by the use of the suppression order, and does not, in my view, add anything of real substance to this application for a permanent stay of the proceedings.
I have made it clear that the problems relating to witness Thorneycroft can be dealt with by clear directions to the jury, and on that basis, whilst there is some detriment to the accused man, as I have already stated, it is not of such a level as to require the extraordinary step of permanently staying this trial. The application is refused.
---
0
0
0