R v Sonnet (Ruling No. 3)
[2011] VSC 558
•3 November 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1443 of 2005
| THE QUEEN |
| v |
| SEAN SONNET |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 2 November 2011 | |
DATE OF RULING: | 3 November 2011 | |
CASE MAY BE CITED AS: | R v Sonnet (Ruling No. 3) | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 558 | |
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CRIMINAL LAW – Re-trial – Application for an order that the trial be stayed – Delay – Whether prosecution case different from first trial – Application refused.
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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:
In this matter the accused, Sean Sonnet, has applied for an order that the re-trial about to commence before me be stayed. Primarily, that application is based on what his counsel submits is unfair or oppressive conduct so far as he is concerned such as to justify an order that the hearing of the trial be stayed notwithstanding the order of the Court of Appeal. Naturally, the application is opposed by the Director of Public Prosecutions.
The circumstances giving rise to this application are adequately set out in the judgment of the Court of Appeal in this matter,[1] a ruling by me subsequent to that judgment,[2] a ruling by me on the application for bail by the accused[3] and a recent ruling by me on the issue of the admissibility as part of the Crown case in this trial of the evidence given by the accused on his first trial.[4]
[1]Sonnet v R [2001] VSCA 315.
[2]R v Sonnet [2011] VSC 97R.
[3]In the matter of an application for bail by Sean Jason Sonnet [2011] VSC 114R.
[4]R v Sonnet (Ruling No 2) [2011] VSC 551R.
It is sufficient to explain that the accused is charged with conspiracy to murder a person unknown and that his trial is a re-trial as ordered by the Court of Appeal on 1 December 2010. As the judgment of the Court of Appeal and my subsequent rulings demonstrate, the reasons for this application being made arise because at the first trial of the accused in this Court in 2007 he was tried on a presentment which alleged that he conspired with Carl Williams, Michael Thorneycroft and Gregg Hildebrandt to murder Mario Condello between May and June 2004. The accused succeeded in his appeal and a re-trial was ordered principally because the deposition of Michael Thorneycroft, an accomplice who had assisted the police and given evidence at the committal but who died before Sonnet’s first trial, was admitted by the trial judge pursuant to section 55AB of the Evidence Act 1958. The Court of Appeal considered that the admission of that evidence resulted in a miscarriage of justice because there had been insufficient disclosure of information by the police and/or the Director of Public Prosecutions of an interview which occurred between Thorneycroft and police on 9 June 2004. That interview was not disclosed until after Thorneycroft’s death and appeared to contain factual inconsistencies with the material that was placed before the jury in the form of Thorneycroft’s two police statements and the record of his cross-examination at the committal proceedings about which he could have been effectively cross-examined.
On this re-trial, the accused is indicted on the following count:
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.
The significant change is that the Crown no longer set out to prove that the alleged victim of this agreement was Mario Condello – an immediate consequence of not being able to rely on Thorneycroft’s deposition. In turn, I am told that for the same reason there is no longer an evidentiary basis for asserting a motive for this agreement and its objective.
In his original written submissions in support of the application for a stay, Mr Meredith of counsel who appears with Mr Kowalski for the accused relied on a number of factors.
First, he submitted that there has been a substantial change in both the evidence to be led by the Crown and the nature of the conspiracy to be alleged against his client. Second, he submitted that there has been a substantial delay of some seven years since the accused was alleged to have committed the offence, much of which has been spent by him in custody in onerous conditions. Third, he had relied on the fact that the Crown intended to rely upon the evidence which the accused gave at his first trial as part of the Crown case to be presented at this trial.
On 28 October 2011 in R v Sonnet(Ruling No 2),[5] I ruled that the prosecution would not be permitted to lead as part of the Crown case in this trial the evidence given by the accused at his first trial. That, therefore, disposes of the third basis of this application.
[5][2011] VSC 551R.
The other two bases which are relied upon in combination are delay and the change to the prosecution case.
The principles which apply to the exercise of a trial judge’s jurisdiction to prevent an abuse of the process of the Court are reasonably familiar. The Court’s control over proceedings before it are designed to ensure that an accused person before the Court receives a fair trial. In Jago v District Court (New South Wales),[6] in relation to applications for a permanent stay, Mason CJ said:[7]
The test of fairness which much 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. 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. 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.
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”.
Where delay is the sole ground of complaint, an accused seeking a permanent stay must be “able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute”.
[6](1989) 168 CLR 23.
[7]Ibid. at 33 (references omitted).
Thus, the question for me is whether in this case, as a result of what has occurred and the manner in which the Director of Public Prosecutions proposes to present its case, there is a fundamental defect which goes to the root of the trial such that there is nothing I can do to avoid unfairness to the accused.
Consistently, in the judgment of Brennan J (as he then was) in the same case,[8] his Honour said:
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.
[8]Ibid. at 47.
In this case, Mr Meredith relies substantially on the failure of disclosure of the Thorneycroft deposition as a default or impropriety on the part of the prosecution that has caused the difficulties which have beset this case, and which are at the root of the unfairness that he says will occur if this trial proceeds. On that issue, Deane J in Jago made the following observations:[9]
Thus, it can be said, as a general proposition, that default or impropriety on the part of the prosecution in pre-trial procedures can, depending on the circumstances, be so prejudicial to an accused that the trial itself is made an unfair one. One example is where particulars supplied to an accused have been so inadequate and misleading that an accused has been denied a proper opportunity of preparing his defence. Another is where impropriety on the part of the prosecution has concealed from an accused important evidence which would have assisted him in his defence. In each of those examples, the effect of the default or impropriety could ordinarily be dealt with by orders (e.g., adjournment, further particulars or a new trial) which will avoid unfairness in a subsequent trial or re-trial. It is, however, possible to formulate examples of cases in which the effect of default or impropriety on the part of the prosecution would necessarily be that any subsequent trial was unfair to the accused. Thus, one can envisage circumstances in which calculated and unreasonable delay on the part of the prosecution in bringing proceedings to trial had so unfairly and permanently prejudiced the ability of an accused to defend himself that no subsequent trial could be a fair one.
[9]Ibid. at 57.
These passages highlight the rare and exceptional nature of the ordering of a stay in criminal trials and emphasise the responsibility of trial judges to not refuse to hear cases unless it is absolutely necessary to do so, but rather to take such steps as are necessary to counteract any prejudice or unfairness which an accused person might suffer.
In this case, the Court of Appeal concluded that the admission of the Thorneycroft depositions at the first trial generated an unfairness and meant that the accused lost a realistic chance of acquittal. The Court then ordered a re-trial on the basis that even without the Thorneycroft deposition, there was still sufficient evidence to support a conviction. Given the particularity with which the Court examined the matter, that is an important conclusion.
As described earlier, I have since ruled that, notwithstanding the change from the Evidence Act 1958 to the Evidence Act 2008, I will not admit the Thorneycroft deposition on the re-trial of the accused. In addition, and on a separate issue, given the significant time that has passed since this offence was alleged to have been committed, I admitted the accused to bail in March of 2011. Further, and as I also explained earlier, I have recently ruled that the evidence given by the accused at the first trial is not admissible as part of the Crown case on this trial, primarily on the basis of a consideration of the application of s 90 of the Evidence Act 2008. I explained in that ruling that I consider that to use such evidence would be unfair.
I am satisfied that for these reasons there is no fundamental defect which would go to the root of this trial, and I am satisfied that the accused can receive a fair trial. The only unfairness that cannot be reduced is the time that has passed since this offence was alleged to have been committed. There was a delay from June 2004 until the first trial in 2007. There was another substantial delay from the trial until the delivery of the judgment of the Court of Appeal in December 2010. These delays are most unfortunate from the point of view of the accused, particularly given that he was in custody for most of that time. It is not asserted that these delays were attributable to the accused.
I do not intend to minimise the effect of such delay but it has not been argued that the delay has resulted in any reduction of the ability of the accused to defend himself. Subject to what follows, I am therefore of the view that the procedures taken since the Court of Appeal’s judgment mean that the accused can receive a fair trial and a stay would not be granted on the basis of the delay, regrettable though it is.
However, that does not dispose of all of the arguments put to me during the application. Mr Meredith places considerable reliance on what he asserts is a new case or at least a substantial change in the evidence to be led by the Crown and a change in the conspiracy to be alleged. He has referred to the change in the count of conspiracy to “conspiracy to murder simplicter” coupled with the absence of any evidentiary attempt to identify the target of the conspiracy and the motive for it as being connected with revenge for the killing of Andrew Vienamin by Dominic Gatto. He submitted that the result was a prosecution case that has been changed substantially and in a manner which is “oppressive” and would justify an order for a permanent stay of the trial.
Clearly, the Crown have reformulated their case in a manner which accommodates their inability to rely on the deposition of Thorneycroft. They continue to allege a conspiracy to murder but, because Thorneycroft was the source of the identification of the proposed victim of the conspiracy, they no longer assert that that victim was Mario Condello. It is also correct to say that the Crown will no longer assert, as a motive for the participants to be involved in this conspiracy, that Williams wished the accused to kill Condello as a reprisal for the death of Andrew Vienamin at the hands of Dominic Gatto, Condello being a powerful figure in the so-called “Carlton Crew” of which Gatto was said to be a member. Otherwise, however, the Crown case remains as it was presented at the previous trial.
In dealing with the third basis on which it is argued that a stay should be ordered, Mr Meredith has particularly relied on the judgment of the High Court in R v Taufahema.[10]He referred to that case because he argued that I should make an order for a stay notwithstanding the willingness of the Court of Appeal in this case to order a re-trial. Mr Meredith submitted that the order of the Court was made without knowing what would be contained in the most recently reformulated Crown opening and also without knowing that notice had later been given of the intention of the Crown to rely on the evidence of the accused at his first trial. The second of those issues is now irrelevant to the argument. Although the circumstances are slightly different, I take Mr Meredith to be submitting, in effect, that if the Court of Appeal knew what I now know, a re-trial would not have been ordered and therefore I should order a stay. Whether or not that is, or should be, the test, I respectfully disagree with the submission.
[10](2007) 228 CLR 232.
In Taufahema, the accused had been charged with the murder of a police officer and the Crown presented him at his trial on the basis that he was a party to a joint criminal enterprise involving the use of a firearm to prevent lawful arrest of himself and the three other people present with him in the motor vehicle. By the end of the trial, the way in which the Crown presented the case had been reformulated so as to allege a joint enterprise to evade apprehension involving the shooting of a police officer. Evasion of apprehension was not a crime known to the law and the Court of Appeal consequently entered a verdict of acquittal. In the hearing of the application for special leave, and for the first time, the Crown characterised the joint enterprise as the commission of an armed robbery in which a fatal shooting was foreseen as a possible incident.
The High Court considered the issue of when appellate courts should order a new trial and the circumstances in which a new case that was not made at the first trial may be relied upon in a re-trial. In the judgment of the majority,[11] their Honours noted:
However, the way the authorities have been decided tends to show that the “new case” test is not easy for accused persons to satisfy.
The Court then examined four of the authorities[12] and, having reviewed those cases, their Honours concluded:[13]
These authorities suggest that the difference between the case relied on in a first trial and the case to be relied on in a second trial must be substantial if the difference is to stand as a bar to an order for a second trial.
[11]Ibid. at [60], per Gummow, Hayne, Heydon and Crennan JJ.
[12]R v Wilkes (1948) 77 CLR 511, King v R (1986) 161 CLR 423, Jiminez v R (1992) 173 CLR 572 and Parker v R (1997) 186 CLR 494.
[13]Ibid. at [67].
In then analysing the case that was before them, the plurality concluded that:[14]
[14]Ibid. at [69].
What the prosecution proposes to do is rely on the same evidence as was called at the first trial, but to seek to characterise the facts which that evidence may establish in a different way, but not a radically different way.
….
All the prosecution proposes to do at the second trial is to rely on an inference which could have been drawn in the first trial.
…
It is not been shown that the evidence to be called by the prosecution at the second trial will be different in any other respect.
By a majority, the Court decided that a re-trial was appropriate.
Consistently with that judgment, in my opinion, what the prosecution is doing in this case is presenting the trial which, on one view, should have been presented in July 2007 without the Thorneycroft deposition. The changes to the prosecution case do not represent a significant or oppressive departure from what was put at the first trial. This case has been tailored to suit the judgment of the Court of Appeal and my subsequent ruling supporting that judgment, notwithstanding the change to the statutory rules of evidence. Otherwise, it is fundamentally the same case. Though it has taken far too long, the beneficiary of the removal of the Thorneycroft deposition from the case and the consequences that flow from that is the accused.
It follows that I am not persuaded that any of the factors relied upon by the accused either in combination or individually would justify a stay being ordered.
The application is refused.
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