The Queen v Cerantonio & Ors (Ruling 13) - [2018] VSC 35

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0078; S CR 2017 0079
S CR 2017 0080; S CR 2017 0081
S CR 2017 0082; S CR 2017 0104

Between:

THE QUEEN

-and-

ROBERT EDWARD CERANTONIO
PAUL JAMES DACRE
ANTONINO ALFIO GRANATA
SHAYDEN JAMIL THORNE
KADIR KAYA &
MURAT KAYA

Accused
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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATES OF HEARING:	31 January & 1 February 2018
DATE OF RULING:	9 February 2018
CASE MAY BE CITED AS:	R v Cerantonio & Ors (Ruling 13)
MEDIUM NEUTRAL CITATION:	[2018] VSC 35

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CRIMINAL LAW – Pre-trial ruling – Six men charged jointly with offence of engaging in conduct preparatory to offence of entering a foreign country with intention of engaging in a hostile activity in that country – New indictment and particulars filed over previous indictment following earlier rulings – Whether new particulars not in fact particulars but merely restatement of offence – Whether new particulars concern further preparatory offence instead of stated offence – Whether particulars so uncertain as to be inadequate – Whether realistic potential connection between particularized intended conduct and objective thereof – Whether particulars render charge duplex – Criminal Code (Cth), ss 11.2A, 100.1, 117.1, 119.1 & 119.4; The Queen v Cerantonio & Ors (Rulings 1-11) [2017] VSC 725.

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Appearances:	Counsel	Solicitors
For the Crown	Mr R Maidment QC with Ms R Sharp and Ms A Peek	Solicitor to Commonwealth Director of Public Prosecutions
For Robert Cerantonio	Mr M Cahill SC with Dr G Boas	Stary Norton Halphen Criminal Lawyers
For Paul Dacre	Mr J McMahon SC with Ms G Morgan	Slades & Parsons Criminal Lawyers
For Antonino Granata	Mr C Farrington with Mr C Terry	Patrick W Dwyer Barristers & Solicitors
For Shayden Thorne	Mr S Moglia with Ms G Connelly	Doogue O’Brien George Barristers & Solicitors
For Kadir Kaya	Mr D Hallowes SC with Ms F Todd	Galbally & O’Bryan Defence Lawyers
For Murat Kaya	Mr D Dann QC with Mr M Goldberg	James Dowlsey & Associates Criminal Law

HIS HONOUR:

Overview

The issue

Over 80 years ago, in Johnson v Miller,[1] Dixon J said that an accused person:

is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge.

[1]Johnson v Miller (1937) 59 CLR 467 at 489. See also, e.g., R v Caldwell (2009) 22 VR 93 at 97[51] (per Kellam JA) and 99[59] (per Weinberg JA) (with both of whom Dodds-Streeton JA agreed).

The principal question at issue in this ruling is whether the accused in the present proceeding have been given adequate particulars of the alleged agreed and intended conduct in the Philippines forming part of the foundation of the offence charged.

First indictment and particulars

As I have explained in previous rulings in this matter,[2] on 23 October 2017, counsel for the…

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.

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Details

Case: [2018] VSC 35
Decision Date: 9 February 2018

CaseChat Overview and Summary

The Queen brought an appeal against six men, collectively referred to as Cerantonio, in the Supreme Court of Victoria. The men were charged jointly with the offence of engaging in conduct preparatory to entering a foreign country with the intention of engaging in a hostile activity in that country. The court was tasked with deciding several legal issues surrounding the indictment and particulars filed over a previous indictment. The primary concerns were whether the new particulars were in fact particulars or merely a restatement of the offence, whether they concerned a further preparatory offence instead of the stated offence, whether they were so uncertain as to be inadequate, and whether they rendered the charge duplex.

The court examined the particulars in light of the legal requirements and previous rulings. It considered whether the particulars were sufficient to inform the accused of the nature and circumstances of the offence, as required by sections 11.2A, 100.1, 117.1, 119.1, and 119.4 of the Criminal Code (Cth). The court also assessed whether there was a realistic potential connection between the particularized intended conduct and the objective of the offence, and whether the particulars rendered the charge duplex. The court concluded that the particulars were indeed particulars and not a restatement of the offence, and that they were not so uncertain as to be inadequate. However, the court found that the particulars did concern a further preparatory offence instead of the stated offence, and that the particulars rendered the charge duplex.

Based on the findings, the court quashed the indictment and ordered a new indictment and particulars to be filed. The new particulars were required to clearly state the offence and the preparatory conduct, and to ensure that there was a realistic potential connection between the particularized intended conduct and the objective of the offence. The court also ordered that the charge should not be rendered duplex by the particulars. The court's ruling provided clarity on the legal requirements for particulars in this type of case and ensured that the accused were properly informed of the charges against them.

Orders