R v Thomas (No 2)

[2006] VSCA 166

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 95 of 2006

THE QUEEN

v.

JOSEPH TERRENCE THOMAS (No. 2)

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JUDGES:	MAXWELL, P., BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	24 and 25 July 2006
DATE OF JUDGMENT:	18 August 2006
DATE OF RULING:	18 August 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 166

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CRIMINAL LAW – Ruling on application by respondent Director for further hearing – Retrial or directed acquittals – Hearing adjourned.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M.P. Taft	Robert Stary & Associates
For the Commonwealth Director of Public Prosecutions	Mr N.T. Robinson	Commonwealth Director of Public Prosecutions
For the Commonwealth Attorney-General (with leave)	Dr S.P. Donahue	Australian Government Solicitor

MAXWELL, P.:

1. The judgment of the Court is that the application for leave to appeal against conviction should be granted, the appeal treated as having been instituted and heard instanter, the appeal allowed and the convictions quashed.  I publish our joint reasons.

1. Counsel for the Crown having acknowledged in the hearing that both convictions depended upon the record of interview being admissible, we propose to direct that a judgment and verdict of acquittal be entered on each count.

(Discussion ensued.)

MAXWELL, P.: 

1. When I announced the judgment of the Court that the appeal would be allowed and the convictions quashed, I informed the parties that the Court proposed to direct a judgment and verdict of acquittal on each count.  As appears from the reasons for judgment which we have published, we proposed to make that direction having been informed on the appeal by Senior Counsel for the Crown that both convictions depended upon the record of interview being admissible. 

1. Mr Robinson, who appears for the Commonwealth Director of Public Prosecutions, has submitted that the Director should have the opportunity to address the Court as to why, instead of directed verdicts of acquittal, this Court should order that there be a re-trial.  Mr Robinson confirms that, as we were told during the hearing, the state of the evidence at trial was such that both convictions did depend upon the admissibility of the record of interview.  The possibility of a retrial was not the subject of oral argument but was first raised in supplementary written submissions filed after the appeal hearing.  The Director says that, following his conviction, Mr Thomas made certain statements in a media interview.  These statements, so the Director submits, might constitute a fresh and sufficient basis for conviction on both counts.

1. Mr Taft, who appears for Mr Thomas, urges that we should proceed as we had intended to do and direct verdicts of acquittal.  He described the Director's submission as "bloody-minded", arguing that if ever a case called for finality, this was that case. 

1. Having taken the time to consider the submission made on behalf of the Director, we are firmly of the view that this issue cannot be disposed of now, and should not be disposed of without full argument on both sides.  Accordingly, we propose to pronounce the orders which I foreshadowed, up to and including the quashing of the convictions and the setting aside of the sentences (that being the consequence of the allowing of the appeal), and to adjourn for further hearing on a date to be fixed the question whether we should order a re-trial or direct that verdicts of acquittal be entered.

1. We will give directions, following the pronouncement of the formal orders, for the filing of written submissions and, in the case of the Director, a prosecution case statement setting out the evidence and the inferences on which the Crown would rely.

1. The orders of the Court are as follows:

1.        The application for leave to appeal against conviction is granted.

2.        The appeal is treated as instituted and heard instanter and is allowed.

3.       The convictions sustained by the applicant in the court below are quashed and the sentences passed thereon are set aside.

4.       The Court adjourns for hearing on a date to be fixed the question whether there should be an order for a re-trial or a direction that verdicts of acquittal be entered.

We make further directions in relation to that hearing.

1.        Within 21 days, the Commonwealth Director of Public Prosecutions file and serve a written submission, together with a prosecution case statement setting out the evidence and the inferences on which the Crown relies.

2.        Within 14 days of that date, the present appellant file a written submission in response.

3.        Any reply submission on behalf of the Commonwealth Director be filed and served within 7 days of that previous date.

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