R v Sonnet (Ruling No. 3) - [2011] VSC 558

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1443 of 2005

THE QUEEN

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…

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. 3)

Details

AGLC: R v Sonnet (Ruling No. 3) [2011] VSC 558
Case: [2011] VSC 558
Decision Date: 3 November 2011

CaseChat Overview and Summary

The case before the court involved a retrial of a defendant who had previously been convicted in a criminal matter. The defendant applied for an order that the trial be stayed due to a significant delay. The application was heard in the relevant court. The central issue before the court was whether the prosecution's case had changed in a way that would affect the defendant's rights, given the significant delay between the first trial and the retrial. This necessitated an examination of whether the delay had prejudiced the defendant's ability to mount an effective defence or whether the prosecution's case remained substantially the same.

The court considered the principles surrounding the stay of a criminal trial due to delay. It was noted that a delay could be justified if it was in the interests of justice to proceed with the trial, even if it had caused some prejudice to the defendant. The court also weighed the defendant's right to a fair trial against the public interest in the prosecution of crime. In this instance, the court found that the prosecution's case had not changed in any material way and that the defendant had not demonstrated significant prejudice resulting from the delay. Consequently, the application for a stay was refused.

Given the court's findings, it declined to stay the trial. The court held that the delay did not warrant a stay of the proceedings as the prosecution's case remained substantially the same as in the first trial. The court emphasised that the defendant's right to a fair trial must be balanced against the public interest in the prosecution of crime and that, in this case, the latter prevailed. The court further noted that any prejudice to the defendant was not so significant as to warrant a stay of the proceedings.

No specific orders were made in the ruling aside from the refusal of the application to stay the trial. The court's decision meant that the retrial could proceed as scheduled, with the original conviction remaining in effect until the outcome of the retrial.

Orders