DISTRICT COURT
CRIMINAL JURISDICTION
v.
..DAY 1
MR SMITH: Page 1, Massimo Sica. Your Honour, if it pleases
the Court, my name is Smith, initials S M, solicitor with the
Office of the Director of Public Prosecutions. I appear for
the Crown.
HER HONOUR: Yes.
MR SMITH: Your Honour, I haven't heard either from
Mr Di Carlo or Ms Douglas recently, so I don't know whether
either of them are planning on turning up. However, I note
the accused's mother's in the back of the courtroom, so
perhaps if the matter could be stood down to allow other
matters to proceed first and we see if Mr Di Carlo arrives.
HER HONOUR: Was Mr Di Carlo informed that the matter was to
be mentioned today?
MR SMITH: Well, not directly, your Honour, but he was given
leave to withdraw at one of the previous mentions. On the
last occasion, Ms Douglas, from Douglas Law, asked to be
placed on the record and was present when the matter was then
duly dealt with and listed for mention today. The purpose of
today's mention, I should add, was really to update the Court
in relation to the progress of the matters pending before the
Supreme Court.
HER HONOUR: Are there matters pending before the Supreme
Court?
MR SMITH: Yes, there are, and they were to have been
mentioned last Friday.
HER HONOUR: What matters are those?
MR SMITH: The three - there is one indictment containing
three counts of murder. That matter was to have been-----
HER HONOUR: Is it intended that these matters proceed after
the trial-----
MR SMITH: Yes.
HER HONOUR: -----is dealt with in the Supreme Court?
MR SMITH: Yes, that is the case, and both-----
HER HONOUR: Well, I will stand the matter down for a short
time.
MR SMITH: Thank you, your Honour.
HER HONOUR: It was listed at 9.30 this morning, was it?
MR SMITH: Yes, it was, your Honour.
HER HONOUR: Yes, very well. Well, we will see whether
Ms Douglas deigns to make an appearance. I will take the next
matter.
MATTER STOOD DOWN
HER HONOUR: Before I adjourn, whilst you are making
inquiries, perhaps I can deal with the matter of Sica. Yes,
the matter of Sica?
MR SMITH: Yes, your Honour. For the record, your Honour, my
name is Smith, initials SM, solicitor with the Director of
Public Prosecutions. I appear for the Crown.
MS DOUGLAS: Good morning, your Honour. For the record, Kerry
Mr Sica.
I apologise for being late this morning. It was my
understanding that a barrister would be present but I got a
telephone call at
been approved, so he is not-----
HER HONOUR: Yes, very well. Well, you are here now. Let's
deal with the matter.
MS DOUGLAS: Righto. Thank you, your Honour. Your Honour, I
was going to request that this matter be brought on before the
murders simply because my client's instructed that he hasn't
been able to see his five-year-old daughter for two and a half
years because they are sex offences and the Arthur Gorrie
Correctional Centre won't allow him to see his daughter. He
hasn't - as I say, he hasn't seen the child for two and a half
years, so I would like to bring this matter on ASAP and
even-----
HER HONOUR: But surely in cases where there are allegations
of sexual misconduct, and so on, there can be contact between
the parent and child that is supervised in a custodial
situation?
MS DOUGLAS: The Arthur Gorrie Correctional Centre won't allow
the mother to bring the daughter into the prison.
HER HONOUR: What, Mr Smith, do you say is the purpose of
having these matters dealt with after the murder trial?
MR SMITH: Your Honour, firstly, the Crown and defence in
relation to both sets of matters have always agreed that that
would be the position-----
HER HONOUR: Yes, but that apparently is now not the case.
MR SMITH: Mmm. Secondly, the convention, as I have always
understood it, is that the Supreme Court matters ought to
proceed first, particularly in light of the seriousness of the
allegations in relation to those matters.
A third issue, which is related, of course, concerns custody.
The accused is formally remanded in relation to both sets of
charges. The history behind that, if I can just briefly
relate to you, was that the accused was arrested in relation
to these matters before he was arrested in relation to the
murders. He was initially remanded in custody in relation to
these murders and was then given Supreme Court bail. Whilst
he was on Supreme Court bail for those matters he was then
arrested for the murders-----
HER HONOUR: Is he in custody in relation to these matters?
MR SMITH: He is now, yes, and he has been remanded in custody
continuously in relation to both sets of charges since - I
think it was the 9th or the 5th of February 2009.
HER HONOUR: Was that an order made by the Supreme Court?
MR SMITH: No. He was - he applied unsuccessfully for bail in
relation to the murders as well, but at a mention in the
Magistrates Court in relation to these matters, when they were
still in the committal process, the Court file was endorsed
that he was also remanded in custody in relation to these
charges.
Unfortunately, I can't detail any further what - how that
actually came to be, but from that point on, the Corrective
Services people have always treated the accused as having been
formally remanded in relation to both sets of charges.
When the indictment was presented in this Court before her
Honour the Chief Judge, her Honour formally made an order
remanding the accused in relation to these charges as well.
HER HONOUR: Well, then, is there not likely to be
publicity-----
MR SMITH: Well, that's-----
HER HONOUR: -----about these matters should they come on
before the trial, and is there then not likely to be a
question as to whether he has received pretrial publicity in
relation to other matters that may affect the fairness of the
murder trial?
MR SMITH: And that was always the concern behind the
agreement or arrangement between the parties.
HER HONOUR: Do you abandon that submission now, Ms Douglas?
MS DOUGLAS: No, no, your Honour, I don't, and-----
HER HONOUR: That's the difficulty that you have, you see, and
that your client faces, I think.
MS DOUGLAS: It was my understanding that he got bail on these
charges, on the rape charges, and it was subsequent to getting
bail he was then charged with the murder charges.
My client is clearly innocent of these rape charges, and I
won't go into-----
HER HONOUR: Well, I don't know whether anyone can say that.
That's really going to be not even the province of a jury.
Juries only say that the person is not guilty, which mean the
prosecution hasn't proven its case. So it is no use using
hyperbole with me.
MS DOUGLAS: No, well, I think even you, your Honour, after
hearing-----
HER HONOUR: Even me? What do you mean by that, Ms Douglas?
MS DOUGLAS: Well, I mean that any Judge, any Judge would
understand that when a person if - being charged with rape and
is still a virgin is going to get off the rape charges, and he
has been charged with 20 of them. The purpose of my-----
HER HONOUR: You might tell me is it penile rape, is it rape
by digital penetration, or penetration by something other than
a penis?
MS DOUGLAS: It was supposed to be a full penetration by
penis, your Honour, and she is still a virgin. So that's why
I would like to get these matters on and heard quickly, and
then he will be found not guilty on those and then we can
start attacking the murder trial.
HER HONOUR: Yes, well, there you are, Ms Douglas, there is
the problem.
MS DOUGLAS: What-----
HER HONOUR: You used the phrase "he will be found not
guilty". No-one can ever say that until the verdict is
announced. I am against you on that. I think in the
circumstances these matters should proceed after the murder
trial. Should there then be a mention date of these matters?
When is the murder trial set to commence? Is there a date?
MR SMITH: No, there is not, your Honour. The murder
indictment is to be mentioned this Friday-----
HER HONOUR: Yes.
MR SMITH: -----in the Supreme Court. It is anticipated that
pretrial legal argument may be listed in the second half of
this year with a trial perhaps to be in the first half of next
year. That's about as clear as I can really make the position
in relation to future listing of that matter. The purpose of
these charges being listed for mention today, as I indicated
earlier, was to simply update the Court in relation to the
progress of the listing on the Supreme Court matters.
So if your Honour was minded to list these matters at some
future stage after the Supreme Court matter is listed again
this Friday.
HER HONOUR: Yes, well, perhaps it should be. I will mention
the matter before me next week at 9.30.
MS DOUGLAS: I will be on - I will be on time, your Honour.
HER HONOUR: 24th of May. So at this stage my inclination is
that these matters should proceed after the murder trial but I
will have further information by next Wednesday. I will
adjourn the matter until then.
MS DOUGLAS: Thank you, your Honour.
MR SMITH: Thank you, your Honour.
MS DOUGLAS: May I be excused?
HER HONOUR: Yes, thank you.
MS DOUGLAS: Thank you, your Honour.
HER HONOUR: Adjourn the Court, please.
THE COURT ADJOURNED AT 10.27 A.M.
DISTRICT COURT
CRIMINAL JURISDICTION
v.
..DAY 1
MR MILES: Your Honour‑‑‑‑‑
HIS HONOUR: Mr Miles?
MR MILES: ‑‑‑‑‑your Honour, if it pleases the Court, my name is Miles, initials J M, I seek leave to appear for the Director's Office.
HIS HONOUR: Yes.
MS RADFORD: Good morning, your Honour, if it pleases the Court, my name is Radford, initials A A, legal officer with Legal Aid
MR MILES: Is your Honour minded to hear some matters out of turn, this morning?
HIS HONOUR: Yes.
MR MILES: Would your Honour take the matter of Massimo Sica, it's on page 3 of the mentions list?
MR FULLER: Your Honour, my name is Fuller, initials T A, I appear instructed by the office of the Director of Public Prosecutions.
HIS HONOUR: Yes.
MS SMITH-DOUGLAS: Good morning, your Honour, for the record, Kerry Smith-Douglas, I appear for Massimo Sica in relation to the sexual matters and we're making a submission in relation to why the sexual matter should go - be heard before the - the murders.
HIS HONOUR: Yes. And you have written submissions?
MS SMITH-DOUGLAS: Well, I have your Honour but I've written on them - I was going to read them to you.
HIS HONOUR: Yes, very well.
MS SMITH-DOUGLAS: The first submission is‑‑‑‑‑
HIS HONOUR: I - I take it - I should hear from the Crown. Do you oppose this course, Mr Fuller?
MR FULLER: Yes, your Honour.
HIS HONOUR: Is there anything I should know about? I was told last week that there was a Supreme Court trial.
MR FULLER: There is, your Honour. The matter of‑‑‑‑‑
HIS HONOUR: Do you mind if Mr Fuller tells me about the history of the matter up until this morning, Ms Douglas?
MS SMITH-DOUGLAS: I beg your pardon, your Honour? Sorry, I missed it.
HIS HONOUR: Do you mind - it's important to listen. Is it - would you mind if Mr Fuller tells me about the history of the matter up until this morning?
MS SMITH-DOUGLAS: Yes.
HIS HONOUR: You do?
MS SMITH-DOUGLAS: I - I'll be touching on it.
HIS HONOUR: Yes, well I'm going to ask Mr Fuller to tell me about it. What's happened so far?
MR FULLER: All right. Your Honour, the Supreme Court matters have now been listed in January of next year for trial. The - his Honour Justice Byrne has been appointed to have oversight of those matters. There's an anticipation of some pretrial applications leading up to the commencement of the trial. And some dates have been set aside for that.
HIS HONOUR: How long is the trial expected to take?
MR FULLER: Your Honour, the estimate is up to 15 weeks.
HIS HONOUR: Yes. And do you agree with that estimate, Ms Douglas?
MS SMITH-DOUGLAS: No, your Honour. We believe it will take at least six months.
HIS HONOUR: Thank you. Was that mentioned to Justice Byrne?
MR FULLER: Your Honour, the matter was listed by Justice Martin. The Crown estimate was 10 to 15 weeks.
HIS HONOUR: Yes.
MR FULLER: And the defence estimate is obviously of some greater period of time. But the matter has been listed to commence in January.
HIS HONOUR: Yes.
MR FULLER: On that basis.
HIS HONOUR: And Justice Martin was told it would be six months by the defence?
MR FULLER: I understand Mr Di Carlo appeared and suggested the trial may make up to 20 weeks.
HIS HONOUR: That's five months in my calculations.
MR FULLER: Yes.
MS SMITH-DOUGLAS: If‑‑‑‑‑
HIS HONOUR: It's - it's - it's lengthened another month since last Friday, has it?
MS SMITH-DOUGLAS: It was my understanding - I wasn't in Court on that occasion, your Honour, but it was my understanding that Mr Di Carlo has made a submission to Legal Aid that will take six months to even read the material. I think the - the committal took - how long did the committal take?
UNIDENTIFIED SPEAKER: Ninety-four days.
MS SMITH-DOUGLAS: What's that?
UNIDENTIFIED SPEAKER: Ninety-four days.
MS SMITH-DOUGLAS: Ninety-four days - the committal took 94 days, your Honour. So what's that in months?
HIS HONOUR: I don't know whether it truly can be said that there is always relativity between a committal and a trial. Often issues will be refined at trial. And often those matters that are explored at committal will often be, by competent counsel, abandoned at trial. But, anyway, I understand what you say about the length of the committal.
MS SMITH-DOUGLAS: And what we say, your Honour, is that - that‑‑‑‑‑
HIS HONOUR: What you submit.
MS SMITH-DOUGLAS: Yes, what we submit, your Honour, is that the - that unless the District Court matter is heard first, it will unfairly prejudice the Supreme Court matter, is baseless as the District Court proceedings will not create an irredeemable prejudice on the Supreme Court trial, and I refer to the case of Dupas and the Queen [2010] High Court Appeal, and I have a copy of that case for you, your Honour.
HIS HONOUR: Thank you.
MS SMITH-DOUGLAS: I have given a copy to my friend.
HIS HONOUR: Would be able to, if you can‑‑‑‑‑
MS SMITH-DOUGLAS: Yes.
HIS HONOUR: ‑‑‑‑‑particularise the prejudice.
MS SMITH-DOUGLAS: Particularise the what, your Honour?
HIS HONOUR: The prejudice that you say will occur‑‑‑‑‑
MS SMITH-DOUGLAS: Right.
HIS HONOUR: ‑‑‑‑‑if these District Court matters are not heard before the Supreme Court trial.
MS SMITH-DOUGLAS: Well, the‑‑‑‑‑
HIS HONOUR: And then secondly, deal with what prejudice you accept would occur, should the matters occur the other way around.
MS SMITH-DOUGLAS: Well, it was clearly spelt out in the case of Dupas, where the Full Court of the High Court of Australia stated that extensive adverse pretrial publicity was capable of being relieved against the trial Judge in the conduct of the trial, by thorough and appropriate directions to the jury. We say, that because it has had such extensive media coverage and, I point out‑‑‑‑‑
HIS HONOUR: It, what do you mean by it?
MS SMITH-DOUGLAS: It's - the - the case, Massimo Sica's pretrial publicity has had‑‑‑‑‑
HIS HONOUR: In relation to what?
MS SMITH-DOUGLAS: A - in relation to the name Massimo Sica has had four million‑‑‑‑‑
HIS HONOUR: The publicity in relation to what matter?
MS SMITH-DOUGLAS: The murders, your Honour.
HIS HONOUR: Yes.
MS SMITH-DOUGLAS: He has had four million hits. Under the name of Max Sica he has had 7.5 million hits, and under the Singh murders he's had 1.8 million hits. So, there's also been - compared to 252,000 hits when - with the words Sica and rape. The Brisbane Times and Courier Mail websites have combined a total of 140 articles that featured Massimo Sica, and the vast majority of these articles and hits relate to the Singh triple murder case.
As the District Court is referred to in most of the articles, other unrelated matters. It's my submission that due to the extreme amount of exposure the Supreme Court matter has been subject of, it is undoubtedly tainted to some extent, through grossly excessive media coverage. We say that the District Court matter should go first, simply because he was charged with the rapes before the murders, he was given bail for the rapes and not the murders‑‑‑‑‑
HIS HONOUR: So, in the event that he was tried and acquitted in the District Court, it would mean that he would still be in custody until after the hearing of the murder trial in any event.
MS SMITH-DOUGLAS: Correct, your Honour.
HIS HONOUR: Mmm.
MS SMITH-DOUGLAS: It's been, I think and I‑‑‑‑‑
HIS HONOUR: Might you - might you argue that his acquittal on the rape charges might be beneficial and be able to be used in the murder trial, or is it entirely irrelevant and distinct?
MS SMITH-DOUGLAS: I think it's entirely distinct, your Honour.
HIS HONOUR: Mmm.
MS SMITH-DOUGLAS: Simply because the matter of hits that has been on the - the internet.
HIS HONOUR: Well, that might then be against you in your argument that the rape trial should go first.
MS SMITH-DOUGLAS: Well, the rape trial, as my friend indicated, isn't coming up till the - January 2012. He's been in custody for two and a half years. He's not able‑‑‑‑‑
HIS HONOUR: In - in the murder trial?
MS SMITH-DOUGLAS: Yes. Yes.
HIS HONOUR: The murder trial is being heard in January of 2012.
MS SMITH-DOUGLAS: Yes.
HIS HONOUR: Yes.
MS SMITH-DOUGLAS: And I think this matter was set down for November, I think, of this year. I'll stand corrected.
HIS HONOUR: Is there any issue about the proximity of the District Court trials, I'll call them, to the Supreme Court trial, in terms of when it could be listed. For example, would you say that there is any prejudice that might arise if the trial was heard within two or three months of the murder trial, and prior to it.
MS SMITH-DOUGLAS: Yes, I'd like it to be heard prior to it, your Honour.
HIS HONOUR: Yes, I understand that's your submission. But the difficulty at the moment is the list, I think, and when the trial could be heard - properly heard. How long will it take?
MS SMITH-DOUGLAS: I think, it wouldn't take any more than two weeks, your Honour.
HIS HONOUR: Just a moment. Yes. The trial couldn't be heard before November, I am told now by the Listing Clerk. So that means that this trial would be heard in November‑‑‑‑‑
MS SMITH-DOUGLAS: Yes.
HIS HONOUR: ‑‑‑‑‑and the murder trial heard in January and therefore, there is an obvious issue about the proximity between the two. Do you understand what I'm saying?
MS SMITH-DOUGLAS: Yes, well they've got to be heard at some stage and I believe that this matter was set down to be heard in November. Now we've got the murder date last week, which is in January 2012. My submission is that the rape should be put to bed - put aside, and then let the murder go ahead because‑‑‑‑‑
HIS HONOUR: Yes. Explain why?
MS SMITH-DOUGLAS: Well, because he's not guilty, your Honour. We submit, he's not guilty and that's why we're‑‑‑‑‑
HIS HONOUR: Well I suppose that's evident by his plea. Has he been required to plead to the indictment yet?
MS SMITH-DOUGLAS: Yes. I - yes, he has, your Honour. It's‑‑‑‑‑
HIS HONOUR: A plea's been entered. Is that so, Mr Fuller? You don't know.
MR FULLER: Your Honour, I'm not confident that that occurred before the prerecording. The history of the matter, a prerecording occurred in October of last year. It went for about a week.
HIS HONOUR: A prerecording for a week?
MR FULLER: Yes.
HIS HONOUR: Well, it sounds as though the trial would be at least two weeks.
MR FULLER: Indeed, your Honour. That would be, I guess‑‑‑‑‑
HIS HONOUR: Is that‑‑‑‑‑
MR FULLER: ‑‑‑‑‑conservative.
HIS HONOUR: ‑‑‑‑‑the prerecording of evidence which would be played to the jury, unless there's a substantial editing, would be about a week.
MR FULLER: Yes, the complainant gave evidence‑‑‑‑‑
HIS HONOUR: That gives me some idea then of the length of the trial.
MR FULLER: Yes, the complainant gave evidence for about three days, your Honour, and then there's the 93A tapes. I think there are approximately four or five of those, as well.
HIS HONOUR: Yes. As a practical consequence for Mr Sica, one of the issues is that were he tried and acquitted, as you so confidently say, then he'll still be in custody. So there's no advantage to him in relation to that. There's no issue, you accept, that could be used by his acquittal, should it occur, in the District Court trial in relation to the Supreme Court murder trial. As you say, they are entirely distinct matters. So, what else do you submit about why the District Court trial should take precedence over the Supreme Court trial?
MS SMITH-DOUGLAS: Well, in - one issue, your Honour, and the most important issue, is that he hasn't been able to see his two and half - his five year old child for two and a half years. The child is growing up not knowing her father because of the sexual offences.
HIS HONOUR: Yes, that - that seems to me, an important consideration.
MS SMITH-DOUGLAS: Thank you, your Honour. And the Corrective Services are ignoring our request. The mother of the - the child is sitting in Court here today and that is her main concern. The child is growing up without knowing her father, or even being able to see her father on a weekly visit that the mother's allowed to. She's got to leave her child behind with the grandmother, who's also in Court.
HIS HONOUR: Why - do you know why Corrective Services have made this decision. After all, if the mother of the child is anxious to have the father see the child, the child is seen in circumstances that are‑‑‑‑‑
MS SMITH-DOUGLAS: In company with the mother.
HIS HONOUR: Not only in company with the mother, but, to use a neutral phrase, supervised.
MS SMITH-DOUGLAS: Yes.
HIS HONOUR: What approaches have been made to Corrective Services by others apart from the mother, if anyone?
MS SMITH-DOUGLAS: The family, your Honour. The family and the prisoner.
HIS HONOUR: Not any vocal legal representation, Ms Douglas.
MS SMITH-DOUGLAS: Your Honour, if I can just explain, the Corrective Services are a law unto the themselves. For example, in relation to the Patel matter we‑‑‑‑‑
HIS HONOUR: I'm not interested in hearing about any of this - bringing another matter‑‑‑‑‑
MS SMITH-DOUGLAS: All right. Okay, well they're very difficult to deal with.
HIS HONOUR: You say they're difficult to deal with.
MS SMITH-DOUGLAS: Extremely difficult to deal with.
HIS HONOUR: Yes, all right. So, you make the issue about the - the defendant not having - not being able to see his child.
MS SMITH-DOUGLAS: Yes.
HIS HONOUR: Yes.
MS SMITH-DOUGLAS: And also the witnesses are going to start losing their memory, your Honour. Even the alibi witnesses are - are - have told me that they're starting to forget what has occurred.
HIS HONOUR: I would have thought a statement might have been taken from them.
MS SMITH-DOUGLAS: Well a statement has been‑‑‑‑‑
HIS HONOUR: That's normally a way of them refreshing their memory.
MS SMITH-DOUGLAS: It is, your Honour. And also at the time when these alleged rapes occurred, Mr Sica's family home was under surveillance both video and audio, when these offences were supposed to have taken place. And we believe that it's important that these matters are heard first so that Justice can be done and that any prejudice that has been put upon my client in relation to media articles and these millions and millions and millions of hits on the internet should be set aside and let my client have justice and to be able to stand up a free man from these rapes and then I believe he would be getting a fairer trial in the Supreme Court for the murders.
HIS HONOUR: And what have the - what if the converse is true, that having had a trial in the District Court and he's convicted, that obviously then is true that it may affect his Supreme Court trial.
MS SMITH-DOUGLAS: It may - but he may have had time served by the time it's heard in the District Court. I mean it's going to be coming up to what nearly‑‑‑‑‑
HIS HONOUR: I'm talking about pre-trial publicity then. You make the submission - you make the submission that by acquittal in the District Court although the charges are irrelevant because of the media publicity it may have some positive effect on his murder trial then the converse is surely true.
MS SMITH-DOUGLAS: Yes, I'll agree with that, your Honour.
HIS HONOUR: Yes, very well. Yes.
MS SMITH-DOUGLAS: I'm instructed, your Honour, that the family have written to the General Manager of Corrective Services and submitted that the complainant - sorry, your Honour, I withdraw that.
HIS HONOUR: Yes.
MS SMITH-DOUGLAS: They're my submissions.
HIS HONOUR: Yes, thank you.
MS SMITH-DOUGLAS: Thank you.
HIS HONOUR: I want to hear what Mr Fuller has to say. Mr Fuller?
MR FULLER: Your Honour, the primary submission is that the murder trials are the most significant of the prosecutions and of the greatest of public interest in my submission and therefore whatever safeguards can be put in place to ensure the fairness of that trial and the ultimate proceedings in the Supreme Court should be taken.
If I can deal firstly with the issue about his access to his child. Your Honour, my officer has written to Corrective Services and be advised that there is a discretion that rests in the General Manager of the Correctional Centre as to whether access can be granted to the child or not. There is a provision that requires him to review whether it's in the best interests of the child taking all of the matters into consideration as to whether the child should have access to Mr Sica.
HIS HONOUR: And has he done so by consulting the mother of the child?
MR FULLER: Your Honour, he - I've simply been advised that he has taken all of the matters into account as he is required to do and made a determination that in the circumstances that it would not be in the best interests of the child for her to have access to Mr Sica. I understand that a review can be made of his decision by writing to the Deputy Commissioner of Custodial Operations and there is a review process which is available to Mr Sica and his family if they wish to have that reviewed.
It's unclear, your Honour, whether the removal of the - or the dealing with of the sexual offences initially would result in the General Manager changing his opinion as to whether the child can have access in light of the other offences with which Mr Sica has also been charged.
Your Honour, with respect to the issue of publicity one of the issues of concern to the Crown throughout the prosecution has been leakage of any of the matters involving these completely unrelated matters with that of the murder and the press has been fairly reserved in their reporting with respect to the sexual offences.
HIS HONOUR: Well, you see, Mr Fuller, one of the matters that Ms Douglas has raised is this. Now I've discussed it with her, that although she accepts the District Court matters are unrelated and cannot in any evidentiary sense, that is the District Court matters form any basis for the way in which the trial is conducted in the Supreme Court, in a general way she submits that the acquittal of her client on the District Court charges prior to the murder trial will have some beneficial effect at least to the extent that those who are knowledgeable of and interested in the District Court offences, will have their interest extinguished by acquittal. It seems to me to follow that the converse is also true, that a conviction in the District Court matters could, although they are entirely irrelevant, even with directions from a trial Judge have the same effect of encouraging interest in the Supreme Court trial and in the allegations made against the defendant in the Supreme Court matter.
MR FULLER: Indeed, your Honour, and if I could also add to that the nature of the‑‑‑‑‑
HIS HONOUR: I should say Mrs - Ms Douglas is entirely confident of the defendant's acquittal, that however - that confidence however is hers alone. It could only be effected by jury verdict.
MR FULLER: The other difficulty I can foreshadow, your Honour, is the nature of the evidence in the District Court trial would involve, as we've heard from my learned friend, some suggestion about police investigation or activity with respect to him, with respect to the Supreme Court matter and indeed‑‑‑‑‑
HIS HONOUR: So there is - there will be a connection, in respect, from the committal.
MR FULLER: Well from - with respect to his defence of the charges includes this idea that there was surveillance and other things happening at the time.
HIS HONOUR: This is something Ms Douglas mentioned, is that correct, Ms Douglas?
MS SMITH-DOUGLAS: That's correct, your Honour.
HIS HONOUR: Yes, thank you.
MR FULLER: And that indeed some of the talk between some of the young girls who are involved as witnesses in the trial focussed in some part on allegations against Mr Sica with respect to the murder.
HIS HONOUR: Tell me about the time of the charges, that's something that hasn't been clearly indicated. Are these charges, that is the District Court charges, charges later in time.
MR FULLER: No, your Honour.
HIS HONOUR: Before?
MR FULLER: Yes. They are perhaps not completely dated but they are historical in the nature of the complaint.
HIS HONOUR: Yes.
MR FULLER: So in the circumstances, your Honour, the most appropriate course in my submission is for the Supreme Court matters to be heard first and that was indeed their defence position when this matter was listed for November of this year in November of last year, before her Honour the Chief Judge when Mr Di Carlo was in the matter. And that they didn't wish these matters to be dealt with at that time.
HIS HONOUR: Yes.
MR FULLER: The only other matter‑‑‑‑‑
HIS HONOUR: You might make submissions if you wish on the fact the trial - there would be real proximity between the two trials, that is, the District Court matters could not be heard until November.
MR FULLER: Indeed, your Honour, but‑‑‑‑‑
HIS HONOUR: And the trial is in the Supreme Court is listed in January.
MR FULLER: Yes, your Honour, in early January. I could also indicate, not knowing which counsel is going to be in the matter, Mr Di Carlo was previously in the matter. Ms Douglas' firm does not appear for Mr Sica in the Supreme Court matters, though it appears Mr Di Carlo will and that I have no real confidence as to the length of this trial in light of some of the matters which have been raised today. Certainly with respect to alibi where no notice has been served on the Crown as to alibis in this matter.
HIS HONOUR: You accept that, Ms Douglas?
Certainly with respect to alibi where no notice has been served on the Crown as to alibis in this matter.
HIS HONOUR: You accept that, Ms Douglas?
MS SMITH-DOUGLAS: I'm not sure, your Honour.
HIS HONOUR: Well I'll have to accept what Mr Fuller says.
MS SMITH-DOUGLAS: My instructions are that - sorry, that indicates, has the discretion‑‑‑‑‑
HIS HONOUR: No, we're - we're really not dealing with this matter of this aspect of it at the moment. I was just asking about‑‑‑‑‑
MS SMITH-DOUGLAS: The alibi.
HIS HONOUR: ‑‑‑‑‑using alibi. Yes, thank you.
MS SMITH-DOUGLAS: Yes. I - I'm of the understanding that there is an alibi and I have been told by the mother that she is the alibi, Max Sica's wife.
HIS HONOUR: And I was asking whether notice of alibi which is required under the Rules has been served on the prosecution‑‑‑‑‑
MS SMITH-DOUGLAS: Well‑‑‑‑‑
HIS HONOUR: ‑‑‑‑‑with all the details that are required.
MS SMITH-DOUGLAS: I'm not sure whether Mr Di Carlo had served that on the DPP.
HIS HONOUR: Mr Fuller tells me and I'll - I'll accept that that's the case, yes. Thank you, Mr Fuller.
MR FULLER: The other practical issue, because he's being represented by two different parties, is the preparation for the murder trial and his participation in that. He's participating in a District Court trial that will take perhaps into the middle of December‑‑‑‑‑
HIS HONOUR: Yes.
MR FULLER: ‑‑‑‑‑to complete.
HIS HONOUR: Yes. The trial is set down presently on the 14th of November.
MR FULLER: Yes.
HIS HONOUR: That leaves a month and a little more perhaps before the Supreme Court trial.
MR FULLER: Yes.
HIS HONOUR: Yes. Thank you. Anything further?
MR FULLER: No thank you, your Honour.
HIS HONOUR: Ms Douglas and your client?
MS SMITH-DOUGLAS: Thank you, your Honour. Just a couple of points. The - Massimo Sica's wife has written to the Deputy Commissioner of Corrective Services and they have also refused and - her application to bring her child into the prison and they said you can't reapply for another year. Reasons - she asked why and he - well, the response was reasons that were non urgent and non compelling so my client cannot see his child because the general manager of Corrective Services has the discretion which he believes in the best interests of my client's child not to see him with his mother and or his grandmother and or extensive family. And they're a big Italian family, you know, there's - there's - they're a large group of people and they're very family orientated as the Italians are and it upsets them terribly that this - their son isn't able to see his son.
Your Honour, my friend indicated that there's been leakage. I might point out that my friend has a police - full police liaison office and there certainly hasn't been any leakage from that - our part.
Your Honour, the matter has been set down for the 14th of November and I - we submit that that date remain, we have this matter heard so my client can get justice and based on that case that was tendered earlier, the High Court case, I'll leave the decision in your capable hands. They're my submissions, your Honour.
HIS HONOUR: You might answer this - who is briefed in the District Court trial?
MS SMITH-DOUGLAS: Me.
HIS HONOUR: You're going to appear?
MS SMITH-DOUGLAS: It looks like it, your Honour. I can't get Legal Aid. The family don't have any money so I'm going to have to do it myself.
HIS HONOUR: Yes. And how long will the trial take?
MS SMITH-DOUGLAS: I think a couple of weeks, your Honour.
HIS HONOUR: Does that mean two?
MS SMITH-DOUGLAS: Yes, your Honour. Well, I can't say exactly two but I would say around about two and hopefully your Honour will have it struck out - if you're hearing it or whoever's hearing it - will have it struck out due to the evidence that's going to be relied on.
HIS HONOUR: So, is there to be a pretrial application?
MS SMITH-DOUGLAS: No. No, your Honour. We'll go straight in.
HIS HONOUR: What do you mean by struck out?
MS SMITH-DOUGLAS: Straight into the trial.
HIS HONOUR: Yes. What do you mean by struck out?
MS SMITH-DOUGLAS: On the evidence, your Honour, the - it's my understanding that the girl is still a virgin and that she was supposed to be fully penetrated. The lies - the deceit that has been stated to the police is just outrageous and we also submit‑‑‑‑‑
HIS HONOUR: Yes. Thank you for that. I don't think this is the time or the place to ventilate arguments about the trial.
MS SMITH-DOUGLAS: Righto.
HIS HONOUR: Yes, thank you.
MS SMITH-DOUGLAS: Thank you.
TAKE IN JUDGMENT
DISTRICT COURT
CRIMINAL JURISDICTION
v.
JUDGMENT
HIS HONOUR: This is an application for the trial of Massimo Sica in the District Court to proceed on the date listed,
The legal representative for the defendant has argued that a variety of factors exist which would lead to the conclusion that the trial, in fairness, should proceed. These include that her client is not guilty, although I take it that from a plea of not guilty or an intended not guilty, that will always be the case. She further submits that there is a strong case to argue, that her client is not guilty. She argues that the defendant is prejudiced in a private and family sense by the fact of his being unable to have contact with his child, that contact has been refused by the relevant prison authorities.
She has referred to substantial pretrial publicity, both in relation to this trial and a trial which has been set down to commence in the Supreme Court in January of 2012, that trial is in respect of the charge of murder.
Ms Douglas, the defendant's legal representative, expects to appear in the trial herself, and it is expected, she thinks, to last - to use her phrase - a couple of weeks. I note that the evidence which will be led at the trial, that is prerecorded evidence and section 93A material, will take approximately one week. Further to that, Ms Douglas refers to the existence of alibi evidence. That material in terms of formal notification of alibi, has not been provided to the prosecution.
It seems to me that a trial of two weeks is at least entirely possible, and perhaps somewhat longer. The trial, I note from the listings that have already been given, is listed for three weeks, and I am told in Court this morning, by the District Court listing officer who sits beside me, that no earlier trial date is available. One matter that is immediately obvious is that should the trial proceed in November, that trial will be very much proximate to the commencement of the Supreme Court trial.
Although, in the matter of Dupas v. Queen [2010] HCA 20, the Court rejected an argument about substantial pretrial publicity. In that case, that was a matter which involved a stay of proceedings. It is always the case that prejudice may arise in respect of pretrial publicity, the question is how and to what extent it may be dealt with, and how that it possible, and the directions which may be given in terms of the quality and extent of the pretrial publicity and the prejudice that may obtain in that regard.
It is indeed unfortunate that the defendant does not have contact with this child, although I am unable to say the entire - I am unable to know the entire circumstances of the requests for contact, or the decision making process and what was taken into account by the relevant prison authorities, in making the decision at which they arrived.
Ms Douglas also submits that pretrial publicity in relation to the District Court trial, although actually irrelevant in evidenciary terms to the Supreme Court matter, may have an implicit effect in this way, that an acquittal on the District Court matter or matters, may extinguish interest otherwise gathered in relation to the defendant himself, who of course faces the Supreme Court trial. In other words, it would have some minimising effect on interest that's been generated in the media about the particular defendant.
It seems to me that the converse is also true, that is to say that a conviction in the District Court may enhance interest, and is perhaps likely to increase some prejudice against the defendant. No doubt this can always be dealt with by suitable directions from a trial Judge, nonetheless, the potential is there, in my view.
Ms Douglas argues very strongly, the cause the defendant is not guilty, or indeed at least intends to plead not guilty, that this matter should be dealt with prior to the Supreme Court trial. The argument put against her by the prosecution is that in the interests of justice, the most serious matter should proceed first. I note that the District Court matter is said, although not to be one that is sometimes referred to as a historic matter, it is nonetheless one which is said to have occurred at a time prior to the alleged offence in the Supreme Court. I have taken that into account in considering these matters.
In all the circumstances, I am of a view that the Supreme Court trial should proceed first. I delist the trial in the District Court on the 14th of September. The matter will be mentioned again on the 14th of September. In the event that there are, firstly, issues to be raised from the District Court trial that relate to pretrial matters; secondly, in relation to the provision to the prosecution of alibi evidence according to the rules, the criminal practice rules; and thirdly, any other matters arising, and perhaps at that time being able to give some potential listing for the trial.
I note also that the defendant is in custody in respect of the Supreme Court trial and should he have been acquitted in respect of the District Court trial prior to the Supreme Court trial commencing, he would nonetheless remain in custody. That is another matter I have taken into consideration.
Nothing further?
MS DOUGLAS: Nothing further. That's my only matter, may I be excused.
HIS HONOUR: Yes, thank you.
MS DOUGLAS: Thank you. Good morning, your Honour.
