The Queen v Cerantonio & Ors (Ruling 15) - [2018] VSC 77

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:	19-21 February 2018
DATE OF RULING:	28 February 2018
CASE MAY BE CITED AS:	R v Cerantonio & Ors (Ruling 15)
MEDIUM NEUTRAL CITATION:	[2018] VSC 77

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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 (third) indictment and particulars filed over previous indictment following earlier rulings – Whether new particulars still so uncertain as to be inadequate – Whether realistic potential connection between particularized intended conduct and objective thereof – Whether particulars render charge duplex or risk uncertain verdicts – 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; The Queen v Cerantonio & Ors (Ruling 13) [2018] VSC 35.

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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

On 19 February 2018, the Commonwealth Director of Public Prosecutions filed over an indictment[1] charging the six accused jointly with an offence against s 119.4(1) of the Criminal Code (Cth) (“the Code”). This is the third indictment filed in this matter.
[1]The indictment is dated 12 February 2018.

In substance, it is alleged that the accused agreed to engage, and did engage, in conduct – including towing a boat to Queensland – preparatory to an intended covert departure from Australia, by use of that boat, for a foreign country (such as Indonesia), with the ultimate destination being entry to the Philippines, with the intention of engaging in a hostile activity in that country.

As in my rulings concerning the two previous indictments, the principal question at issue in this ruling concerns whether the accused have been given adequate particulars of the conduct component of the alleged agreed and intended hostile activity in the Philippines. A related issue is whether the same particulars…

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 77
Decision Date: 28 February 2018

CaseChat Overview and Summary

Six men charged with offences under the Criminal Code, including engaging in conduct preparatory to entering a foreign country with the intention of engaging in a hostile activity, were the subject of a pre-trial ruling in The Queen v Cerantonio & Ors (Ruling 15). The accused were initially indicted under a previous indictment, but the prosecution subsequently filed a new indictment and particulars. The accused challenged the adequacy of these new particulars, arguing that they were uncertain and potentially duplex, risking an uncertain verdict. The court was required to determine whether the new particulars were sufficiently certain, whether there was a realistic potential connection between the intended conduct and the objective, and whether the particulars made the charge duplex or risked uncertain verdicts.

The court considered the statutory provisions of the Criminal Code, including sections 11.2A, 100.1, 117.1, 119.1, and 119.4, and previous rulings in The Queen v Cerantonio & Ors (Rulings 1-11) [2017] VSC 725 and The Queen v Cerantonio & Ors (Ruling 13) [2018] VSC 35. The court found that the new particulars were sufficiently certain to inform the accused of the nature and circumstances of the offence, to enable them to answer the charge, and to protect them from the risk of being tried again for the same offence. The court also found that there was a realistic potential connection between the particularized intended conduct and the objective of engaging in a hostile activity in a foreign country. Consequently, the court rejected the accused's challenge to the adequacy of the new particulars.

In light of the above, the court held that the new particulars were not so uncertain as to be inadequate, and did not render the charge duplex or risk uncertain verdicts. The accused's challenge to the adequacy of the new particulars was therefore dismissed. The court made no orders in relation to the ruling, as the matter proceeded to trial on the new indictment and particulars.

Orders