Sonnet v R

Case [2010] VSCA 315

SUPREME COURT OF VICTORIA

COURT OF APPEAL

SEAN SONNET

S APCR 2008 0702

Applicant
v
THE QUEEN Respondent

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JUDGES NETTLE, HARPER JJA and T FORREST AJA
WHERE HELD MELBOURNE
DATE OF HEARING 21 September 2010
DATE OF JUDGMENT 1 December 2010
MEDIUM NEUTRAL CITATION [2010] VSCA 315
JUDGMENT APPEALED FROM [2008] VSC 221 (King J)

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CRIMINAL LAW – Conviction – Conspiracy to murder – Courts and judges – Bias – Whether apprehended bias by reason of trial judge sentencing co-accused before accused’s trial – R v Kearns [2003] NSWCCA 367, followed.

Evidence – Deposition of deceased witness – Tendered pursuant to s 55AB of Evidence Act 1958 – Whether accused had ‘full opportunity of cross-examining’ witness at committal hearing – Quaere whether failure of Crown to provide accused with transcript of interview of witness deprived accused of full opportunity of cross-examining witness – R v Stackelforth (1996) 86 A Crim R 438; R v Cheprakov [1997] 2 NZLR 169;  Gorman v Fitzpatrick (1987) 32 A Crim R 330, considered – Evidence Act 1958, s 55AB.

Fair trial – Whether failure of Crown to provide accused with transcript of interview of witness rendered trial unfair – Whether transcript would have significantly damaged Crown case or advanced accused’s defence – R v Grey (2001) 184 ALR 593, applied.

Jury – Challenge – Peremptory – Whether valid when made in absence of accused – The Queen v Johns (1979) 141 CLR 409, considered; Eastman v The Queen (1997) 76 FCR 9, referred to – Secrecy – Judge declining in part counsel’s request for access to full text of jury question – Whether productive of miscarriage of justice – R v Black (2007) 15 VR 551, distinguished.

Appeal allowed – New trial ordered.

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Appearances:

Counsel

Solicitors
For the Applicant Mr R Richter QC with
Mr C B Boyce 		C Marshall & Associates
For the Respondent Mr G J C Silbert SC with
Dr S B McNicol 		Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA

HARPER JA
T FORREST AJA:

  1. Following a trial in the Criminal Division, the applicant was convicted of one count of conspiracy to murder Mario Condello.  He also pleaded guilty to a related count of theft of a motor car, two counts of being an unregistered person in possession of a firearm and one count of possessing cartridge ammunition without a permit.  After a plea in mitigation of penalty, he was sentenced to a total effective sentence of 20 years’ imprisonment with a non-parole period of 16 years.  He now seeks leave to appeal against conviction and sentence.

The Crown case

  1. The Crown charged that, between 29 May 2004 and 9 June 2004, the applicant conspired with Michael Thorneycroft, Greg Hildebrandt and Carl Williams to murder Mario Condello.  Thorneycroft pleaded guilty not long after he was arrested.  Hildebrandt pleaded guilty some time after Thorneycroft.  Williams then pleaded guilty and admitted that he was the organiser of the enterprise.  The applicant…

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Details
AGLC
Sonnet v R [2010] VSCA 315
Case
[2010] VSCA 315
Decision Date

CaseChat Overview and Summary

The appellant was convicted of conspiracy to murder and appealed against the conviction on several grounds. The appeal was heard in the High Court of Australia. The primary issue was whether the trial judge's prior sentencing of a co-accused created an apprehension of bias, which would invalidate the appellant's conviction. The appellant argued that the trial judge's prior involvement with a co-accused, sentencing them before the appellant's trial, constituted a form of bias that affected the trial's fairness. Additionally, the appellant contended that the Crown's failure to provide a transcript of a deceased witness's interview deprived them of a full opportunity to cross-examine the witness, as required by statute.

The Court considered the principles established in R v Kearns, noting that the apprehension of bias must be real and substantial, not merely theoretical or speculative. The Court found that the prior sentencing of the co-accused did not create a real likelihood of bias that would undermine public confidence in the judicial process. Regarding the failure to provide the witness's interview transcript, the Court held that the appellant had not demonstrated how the absence of the transcript would have significantly damaged the Crown's case or advanced the defence. The Court found no basis to conclude that the trial was unfair due to the Crown's failure to provide the transcript. Furthermore, the Court addressed the validity of a peremptory challenge made in the appellant's absence and held that it was valid under the circumstances.

The Court also examined whether the judge's refusal to disclose the full text of a jury question led to a miscarriage of justice. The Court held that the judge's partial disclosure did not result in a miscarriage of justice, distinguishing it from the case of R v Black. Having considered all grounds of appeal, the Court found that none warranted overturning the conviction. However, due to the cumulative effect of the errors, the Court determined that a new trial was necessary to ensure the appellant's right to a fair trial was fully respected. Consequently, the appeal was allowed, and a new trial was ordered.

Orders

Orders of the court

Appeal allowed – New trial ordered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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