Carbone v R - [2020] NSWCCA 318

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Carbone v R [2020] NSWCCA 318
Hearing dates: 13 May 2020
Decision date: 15 December 2020
Before: Bathurst CJ at [1]
Button J at [2]
Wilson J at [153]
Decision:
(1) Leave to appeal against conviction granted.
(2) Appeal upheld.
(3) The conviction for murder entered against the applicant is quashed, and a new trial is to be had.
(4) The matter is listed in the Arraignments List of the Supreme Court at 10 am on 12 February 2021.

Catchwords:
CRIMINAL LAW – murder trial – where Crown relied upon joint criminal enterprise – whether directions about mental element for extended joint criminal enterprise were inadequate – whether failure to leave manslaughter on a certain basis led to miscarriage of justice – whether directions about approach by jury to circumstantial case were erroneous – conviction appeal allowed

Legislation Cited:
Criminal Appeal Act 1912 (NSW), s 6(3)

Cases Cited:
Burrell v R [2009] NSWCCA 163; (2009) 196 A Crim R 199
Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
Hadchiti v R (2016) NSWLR 671; [2016] NSWCCA 663
Justins v The Queen (2010) 79 NSWLR 544; [2010] NSWCCA 242
McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108
Millerv The Queen; Smith v The Queen; Presley v Director of Public Prosecutions (SA) [2016] HCA 30; (2016) 259 CLR 380
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Stokes and Difford v R (1990) 51 A Crim R 25
R v Davidson [2009] NSWCCA 150; (2009) 75 NSWLR 150
R v Merritt [1999] NSWCCA 29
Restricted Decision [2019] NSWCCA 153
Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313

Texts Cited:
Criminal Appeal Rules (NSW), r 4

Category: Principal judgment
Parties: Diego Carbone (Applicant)
Regina (Respondent)
Representation:
Counsel:
T Game SC & R Khalilizadeh (Applicant)
F Vetro (Respondent)
Solicitors:
Gregory Goold Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/255002
Publication restriction: Not to be placed on Caselaw until any pending trial by jury resolved
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Date of Decision:

12 October 2017

Before:

Matthews AJ

File Number(s):

2014/255002

Judgment

BATHURST CJ: I agree with the orders proposed by Button J and with the reasons given by him for making the proposed orders.
BUTTON J:

Introduction

On 12 October 2017, after a trial before Matthews AJ in the Supreme of Court New South Wales, Mr Diego Carbone (the applicant) was found guilty by a jury of the murder of Mr Bradley Dillon (the deceased). The fatal acts were said to have been committed in an underground carpark of Leichhardt Marketplace shopping centre, in the inner west of Sydney.
On 22 March 2018, the applicant was sentenced to a term of imprisonment featuring a non-parole period of 21 years, to commence on 23 July 2015 and to expire on 22 July 2036, with an additional term of 7 years, to commence on 23 July 2036 and to expire on 22 July 2043. The earliest date on which he is eligible for release on parole in 22 July 2036.
The Crown case at trial was that, shortly after 5:20 PM on 11 August 2014, the applicant and Mr Antonio Bagnato were together responsible for the murder of the deceased by way of the infliction of several stab and gunshot wounds to his person. Mr Bagnato had fled overseas by the time of the trial, and the applicant stood trial alone. For convenience, I shall nevertheless refer to Mr Bagnato as “the co-accused”.
The applicant seeks leave to appeal against his conviction for murder. There is no application for leave to appeal against sentence.

Sketch of background

Because all grounds of appeal focus upon directions given to the jury, the facts of the matter need only be discussed with sufficient detail to examine the correctness and sufficiency of those directions.
The Crown case was as follows. The sister of the deceased, Ms Cassie Dillon, had lent $2,000 to her boyfriend, Mr Adriano Riccio. Mr Riccio was a friend of the co-accused. The co-accused and the applicant are first cousins. The deceased was pressuring Mr Riccio to repay the debt to the sister of the deceased. Mr Riccio, the co-accused, and the applicant had all been associated with a particular “fight club” located in the inner west at various stages. The family business of the applicant was located around the corner from the carpark in question.
The applicant and the co-accused were together at 11:17 AM on 11 August 2014, as demonstrated by CCTV from the carpark of the apartment block in which the co-accused lived in Marrickville.
CCTV footage showed the applicant in the loading dock of his family’s business, very close to the carpark, at 4:17 PM. At the time, he was wearing a green jersey with the number 7 on its back.
CCTV footage separately showed the co-accused departing his apartment block at 4:24 PM in a motor vehicle. The same vehicle is seen on CCTV at the loading dock of the family business of the applicant, and a little after 4:41 PM the applicant enters its front passenger seat. The vehicle is next seen on a street adjacent to the carpark at 5:13 PM. At 5:20 PM, a text message was sent to the deceased as follows “Car park under tab”. The carpark, although attached to a suburban shopping centre, was an unusually isolated and secluded spot, used by some persons to ingest prohibited drugs. Shortly after the transmission of the text message, the deceased entered the carpark on foot.
There he was stabbed in the back a number of times, and shot three times, including once through the sole of his left foot. Five shots in total were fired. He fled on foot up the ramp of the carpark, collapsed on a nearby footpath, and died shortly thereafter.
Two men were seen running away from the carpark shortly afterwards. At trial, there was no dispute that one of them was the applicant.
DNA identical to the profile of the applicant was found in fingernail scrapings from the deceased. A piece of green fabric was found at the scene that featured DNA consistent with that of the applicant and the deceased. It was likely that that piece of fabric had come from around the collar or neckline on the front of a garment. The Crown case was that it was a portion of the green jersey that the applicant had been seen to have been wearing shortly beforehand.
Sometime later, the applicant sought to leave Australia, but was forestalled from doing so by authorities.
The Crown case could not differentiate as to the alleged physical roles of the applicant and the co-accused. By that I mean, it was not said that one man or other did all of the violent acts. Nor was it said that one man did the shooting, and the other the stabbing. The Crown case simply asserted that the applicant was guilty of murder by way of joint criminal enterprise, primarily in its basic form, but also, as necessary, in its extended form. The foundational offence for the purposes of extended joint criminal enterprise was spoken of as “assault”, but to be more precise it was battery.
In his final address to the jury, defence counsel then appearing for the applicant largely focused on the asserted lack of evidence of any agreement entered into by the applicant to inflict violence upon the deceased, and posited at least one scenario whereby the co-accused alone could have been responsible for his death.

Grounds of appeal

In support of the application for leave to appeal against conviction, the following grounds were notified and pressed at the hearing before this Court:

Ground 1: The directions given as to extended joint criminal enterprise were erroneous.
Ground 2: The directions as to manslaughter were inadequate and erroneous.
Ground 3: The directions on circumstantial reasoning and inferences obscured the standard of proof.

Ground 1: The directions given as to extended joint criminal enterprise were erroneous.

In a nutshell, the submission was that the directions about extended joint criminal enterprise were incomplete, as follows.
The directions neglected to make clear to the jury that, before returning a verdict of guilty of murder based upon the doctrine, they would need to be satisfied beyond reasonable doubt that the applicant foresaw the possibility of the co-accused acting with, at the least, the intention to inflict grievous bodily harm. In other words, it was contended that a central “mental element about a mental element” had been omitted, with the result that the jury had been provided with a “false path” towards a verdict of guilty.
In order to assess that submission, it is necessary to set out all the material from the trial whereby the jury was spoken to about the elements of murder by way of extended joint criminal enterprise. I shall also set out some of the discussions between trial judge and counsel in the absence of the jury that explain why the jury was and was not directed about certain matters. I shall set things out in the order in which they unfolded in the trial. All emphases by way of italics have been added by me.
First, towards the end of his opening, the Crown prosecutor summarised the legal bases for the Crown case:

In terms of the way that the Crown puts its case the Crown alleges a joint criminal enterprise between the accused and Mr Bagnato with respect to this matter and even though the precise role played by the accused is unknown the Crown says that from the facts of the case it can be inferred that the accused gave his assent to a criminal enterprise which either firstly involved the infliction of what we call grievous bodily harm or very serious bodily injury or, putting its case a second way, that the accused contemplated the intentional infliction of grievous bodily harm through the discharge of a firearm or use of a knife should the occasion arise.

In relation to a joint criminal enterprise the situation is that if you find the existence of one then each participant is liable for the acts of the other, if you like they are jointly liable for the acts done and it does not matter who exactly fired the gun or who ask exactly used the knife. [TT (trial transcript) 20.21-20.35]

Defence counsel did not open to the jury.
Secondly, at TT 544.50 and following, before the Crown case closed, the following exchange took place between her Honour and counsel:

HER HONOUR: Yes. What I would like to do if I can is to give the jury before addresses start if possible a list of questions, a question chart, and just to give you an idea "Has the Crown proved beyond reasonable doubt the following matters - that the accused deliberately inflicted the injury. If yes go to Question 2. If no go to Question 3.

Question 2 - That at the time he intended to kill or really seriously injure the deceased is yes you will find him guilty of murder. If no then go to Question 5".

Then Question 3 if they answered no to Question 1 -

"That there was a joint criminal enterprise between the accused and Antonio Bagnato to kill or really seriously injure the deceased"

And Question 4 - "That one or other of the accused or Antonio Bagnato, or both of them, deliberately inflicted the fatal injuries upon the deceased pursuant to that enterprise. If yes you will find the accused guilty of murder. If no you will find the accused not guilty."

Then there is a question about the intention to kill. Does the Crown rely on unlawful and dangerous act for manslaughter?

CROWN PROSECUTOR: Yes your Honour.

HER HONOUR: Okay that would then be the question and is that also in relation to the joint criminal enterprise?

CROWN PROSECUTOR: Yes, your Honour, and can I say the joint criminal enterprise is on two bases; one is straight out joint criminal enterprise, the other is an extended one. You might recall when I opened I said "either intended to inflict that or contemplated as a possibility" so I put my case on both of those.

HER HONOUR: What was the joint criminal enterprise in that event?

CROWN PROSECUTOR: To at least inflict grievous bodily harm.

HER HONOUR: That does not need to be extended then by me. That's it. If they find it was joint criminal enterprise to inflict grievous bodily harm and he dies as a result then that is murder.

CROWN PROSECUTOR: But joint criminal enterprise is simply to beat him up.

HER HONOUR: Okay.

CROWN PROSECUTOR: So I am a little apprehensive.

HER HONOUR: To beat him up?

CROWN PROSECUTOR: Well to assault him or to inflict some damage.

HER HONOUR: all right to assault him and that it was contemplated. That complicates things a bit but if that is what the Crown is relying on then-

[DEFENCE COUNSEL]: That is what the Crown opened on.

HER HONOUR: That is right and as a matter of law of course it is a stepping stone to towards murder. So you are relying on those?

CROWN PROSECUTOR: Yes, your Honour. (TT 544.50 – 546.9)

Thirdly, a little later on the same day, commencing at TT 547.06, aspects of the proposed question trail were further discussed:

HER HONOUR: I have already, I have done a draft also. It is a first draft of potential questions for the jury. So, can I give you each a copy (handed to counsel). And there are a couple of - the first, questions 1, 2 and 7, just rely on 10 the unlikely proposition that the jury finds beyond reasonable doubt that it was the accused himself who inflicted the fatal injuries, and that 1, 2 and 7 - 7 giving the alternative possibility of manslaughter under unlawful and dangerous act.

But more importantly really asks some questions, 3 on, that one or the other inflicted the fatal injuries.

Anyway you have time to think about it.

Might I just ask to refresh my memory of the definition of 'dangerous'.

HER HONOUR: In this context, it is the objective, I say an act of danger if a reasonable person in the position of the accused –

[DEFENCE COUNSEL]: I have got no issue with that, your Honour is quite right, but is it risk of serious injury or very serious injury?

HER HONOUR: I think it is serious injury.

[DEFENCE COUNSEL]: Your Honour may well be right.

CROWN PROSECUTOR: Your Honour, point 7 doesn't include both accused, just this accused.

HER HONOUR: It is very difficult to see how that could be by extension Mr Crown. I really fail to see how it could be. You need to persuade me on that issue.

CROWN PROSECUTOR: It is for that reason perhaps that I would like a little time to think about it.

HER HONOUR: Yeah, fair enough. As I said, I would like to get it to the jury before addresses start, so that we are all, and sort of give them, just go through the questions with them, it only takes a few minutes, but it means that, I think it really helps them when they know precisely the matters that they are going to have to deal with, and both counsel, and the jury, they are all on the same page in relation to these issues. But of course you can have time. (TT547.06 – 547.48)

(No copy of preliminary drafts of the question trail was included in the Appeal Book, and as I understand it, no copy was retained on the court file.)

Fourthly, later on the same day, commencing at TT 559.07, the document was further discussed in the absence of the jury:

HER HONOUR: Now have you got the draft questions? You probably haven't had a chance to look at them. You have to look at the possibility that, I think it very unlikely, that the jury found satisfied that it was the accused himself.

CROWN PROSECUTOR: Yes.

HER HONOUR: Just a second, I think that last one is wrong. It has to be "no" to 7, "You will find the accused not guilty". I don't see how the unlawful and dangerous act can be one by extension of another - done by another person Mr Crown. If that makes sense.

CROWN PROSECUTOR: Your Honour, I argued joint criminal enterprise in relation to both murder and manslaughter in the case of IL v The Queen before Mr Justice Hamill. That was a felony murder case. He rejected both the murder and the manslaughter aspect. On appeal to the Court of Criminal Appeal Justice Simpson before the Full Court agreed with my view and reinstated both. Unfortunately, it then went on appeal to the High Court, and in a judgment of seven, the vote was split. Two of the justices upheld essentially my argument and that of Justice Simpson, three others went off on a tangent of their own, talking about suicide, which no-one had ever raised-

HER HONOUR: I remember that one, yes.

CROWN PROSECUTOR: --anywhere, so. Your Honour, in that particular case there was a joint criminal enterprise to manufacture a large commercial quantity of methylamphetamine, and as I say two of the justices held that there could be a joint criminal enterprise there where the accused could be found guilty of manslaughter because of the nature of the offence.

HER HONOUR: I just don't see how it applies here, how it could realistically apply at all. It certainly could apply in the unlikely event that they were satisfied to a requisite degree that it was the accused himself who did it, but if they cannot say which one, I just don't see how it can apply.

CROWN PROSECUTOR: If there is a joint criminal enterprise to assault.

HER HONOUR: If there's a joint criminal enterprise to assault him, and he foresees the possibility, then that's it; and that's already dealt with. Under 5.

CROWN PROSECUTOR: Yes, exactly. Alright, I'll accept that your Honour.

HER HONOUR: And so that is already dealt with.

CROWN PROSECUTOR: Yes.

HER HONOUR: And 6, that the accused foresaw the possibility. In that event, it's murder. So apart from changing the second - under 7, if "no" you will find the accused not guilty.

CROWN PROSECUTOR: Yes.

HER HONOUR: Apart from that, are you happy for the-

[DEFENCE COUNSEL]: Yes your Honour. (TT 559.07 – 560.09)

Fifthly, the question trail that had been settled with counsel was provided to the jury before the final addresses. I set it out in its entirety, whilst recording that the focus of the applicant with regard to ground 1 is upon questions 5 and 6.

“R v Diego CARBONE

QUESTIONS FOR THE JURY

Has the Crown proved beyond reasonable doubt the following matters:

1. That the accused deliberately inflicted fatal injuries on the deceased.
If “yes” go to question 2.
If “no” go to question 3.
2. That at the time he intended to kill or really seriously injure the deceased.
If “yes” you will find the accused guilty of murder.
If “no” go to question 7.
3. That one or other of the accused and Antonio Bagnato (or both of them) deliberately inflicted the fatal injuries upon the deceased.
If “yes” go to question 4.
If “no” you will find the accused not guilty of murder.
4. That the injuries were inflicted pursuant to a joint criminal enterprise between the accused and Antonio Bagnato to kill or really seriously injure the deceased.
If “yes” you will find the accused guilty of murder.
If “no” go to question 5.
5. That there was a joint criminal enterprise between the accused and Antonio Bagnato to at least assault the deceased pursuant to which one or other of them (or both of them) inflicted the fatal injuries.
If “yes” go to question 6.
If “no” you will find the accused not guilty of murder.
6. That the accused foresaw the possibility that, in the course of the assault, the deceased might be really seriously injured or killed.
If “yes” you will find the accused guilty of murder.
If “no” you will find the accused not guilty.

7. That the death of the deceased was caused by a voluntary act of the accused which was an unlawful and dangerous act.

If “yes” you will find the accused not guilty of murder but guilty of manslaughter.
If “no” you will find the accused not guilty.
NOTE: An act is “dangerous” in this context if a reasonable person in the position of the accused would have realised that it exposed the deceased to a risk of serious injury. “

Sixthly, when the question trail was provided to the jury, her Honour provided the following explanation of it at TT 562.35 and following:

COPIES OF MFI 2 DISTRIBUTED TO THE JURY

I will just go through it with you members of the jury. Every issue has to be proved by the Crown beyond reasonable doubt, and so:

"Has the Crown proved beyond reasonable doubt the following
matters:

1. That the accused deliberately inflicted fatal injuries on the deceased."

That is just the accused himself. And you may think that there's no strong evidence as to who precisely did it. But that is a matter for you.

If "yes" you go to question 2, if "no", you go to question 3. Question 2:
"That at the time he intended to kill or really seriously injure the deceased. If "yes", you will find the accused guilty of murder, if "no", you'll go to question 7."

And we will come to that later. And then 3, and this applies if you cannot find that it was the accused himself who inflicted the fatal injuries. Incidentally "deliberately" simply means "consciously" as opposed to "mistakenly" or "accidentally":

"3. That one or other of the accused and Tony Bagnato, or both of them, deliberately inflicted the fatal injuries upon the deceased."
If you answer "yes" to that, you go to the next question, question 4. If "no", you will find the accused not guilty of murder.

Then question 4:

"That the injuries were inflicted pursuant to a joint criminal enterprise
between the accused, and Antonio Bagnato to kill or really seriously
injure the deceased. If "yes" you will find the accused guilty of murder. If "no" you'll go to the next question, question 5; and that question is:
"5. That there was a joint criminal enterprise between the accused
and Antonio Bagnato to at least assault the deceased pursuant to which one or other of them, or both of them inflicted the fatal injuries. If "yes" you go to question 6. If "no", you'll find the accused not guilty of murder."

And then question 6:

"6. That the accused foresaw the possibility that in the course of the
assault the deceased might be really seriously injured or killed. If
"yes", you'll find the accused's guilty of murder. If "no", you'll find
the accused not guilty."

And the last one:

"7. That the death of the deceased was caused by a voluntary act
of the accused."

We're only talking about the accused in this one:

"Which was an unlawful and dangerous act. If "yes", you'll find the
accused not guilty of murder, but guilty of manslaughter. If "no", you will find the accused not guilty."

Then there is a note that in relation to that, question 7:

"An act is dangerous if a reasonable person in the position of the accused would have realised that it had exposed the deceased to a risk of serious injury"

In other words, it is a completely objective as opposed to a subjective 5 assessment of the dangerousness

So those are the questions that you are going to have to address at the end of the day, which will be early next week members of the jury, and as I said, I think it's important for you to know those issues at this stage before counsel address you so that we are all on the same page about the significant issues, factual issues, for your determination, because all of these depend completely on your own determination, because they are all matters of fact. [TT 562.35 – 564.12]

Seventhly, turning now to relevant aspects of the closing address of the Crown, at TT 588.05 and following it was said:

When I opened this case to you I talked about a notion called joint criminal enterprise. Yesterday her Honour handed a document to you suggesting that that might assist you in working through the various issues, and it would be apparent to you from that document that the law allows for certain alternatives to be considered. That may be the case ladies and gentlemen, but the Crown case is one of joint criminal enterprise, and that is we say in this instance we have two people acting together.

You might recall that I told you at the beginning of the trial that where a joint criminal enterprise exists, each participant is liable for the acts of the other. It doesn't actually matter who does the stabbing, or who fires the gun, both are liable where they are being found to act in concert together.

So the allegation that the Crown makes here is that this is an example of a joint criminal enterprise. This is a matter where we cannot tell you exactly what the roles were that each person performed, whether it was the accused or Mr Bagnato, but we say that it does not matter when you find that a joint criminal enterprise exists.

We say that you will infer the existence of a joint criminal enterprise from a number of factors. Before I go into them I'm going to suggest to you that the Crown's actually putting its case two ways. There is a major way and a minor way, but the major way is this: That the joint criminal enterprise was an agreement to inflict at least grievous bodily harm, or very seriously bodily injury, or, the second way is that the agreement was to assault the deceased, but at the time it was contemplated by the accused that there was the possibility of inflicting grievous bodily harm through the discharge of a firearm or the use of a knife.

Now the major proposition for which the Crown contends is the first one: An agreement to inflict at least grievous bodily harm And this flows, we say, from the fact that if you accept that the accused and Bagnato brought the weapons to the underground carpark, they chose the venue, they lured him there by the use of the SMS text message, the fact that there were no defence injuries, which suggests he was set upon in a situation where he either could not defend himself, or it was done in such haste that he could not at that stage then respond, except to run away They then escape together by having parked the car up in or around North Treadgold Street, and then he later goes to the airport on three separate occasions, intending to flee the jurisdiction, notwithstanding he had a ticket.

So that is the ambush scenario that I'm putting to you. The minor case available on the evidence is the intention to assault with the possibility that the use of the gun or the knife would follow. [TT 584.29 – 585.23]

...

So what the Crown is saying, ladies and gentlemen, is that the set of circumstances that you have been provided with in this case exclusively point out the accused and Bagnato and no others and that because of the fact that they have been together, both before and escaping afterwards, and clearly the fact that the accused was there at the time, the open reasonable, rational, conclusion is that the accused was in a joint criminal enterprise to at least inflict grievous bodily harm on the deceased.

Just to say it again then; where a joint criminal enterprise exists we don't have to prove who did what. Both are liable for the acts of the other. We say in this case they were acting in concert and we say that we have given you evidence to show how they came together and how they left.

We say at the end of the day we have proved our case against the accused that there was a joint criminal enterprise to at least inflict grievous bodily harm and, accordingly, you will find him guilty of murder. [TT 588.05 – 588.20]

Eighthly, as for relevant extracts from the closing address of defence counsel at first instance, commencing at TT 591.49:

Where is the evidence that there was an agreement to do anything to this deceased man? Well where is it? There is none.

What the Crown says is if you draw all of these inferences he must have known. Must have known what? Must have agreed to what? We know that Bagnato is a violent man and who informed you of that? Not the Crown. We know he has been convicted of murder even since he left Australia. We know that he knew the deceased and we know he knew Riccio. Where is the evidence, members of the jury, that he knew anything about the debt? Anything at all. Well where is it? You will have the transcript, I will give you some page numbers and you can go through it. There is no evidence that he knew about the debt. [TT 591.49 – 592.11]

...

Now members of the jury, briefly reminding you again, you have the transcript, it's put that there is simply no evidence whatsoever in any form that the accused knew about some kind of agreement involving a debt between Miss Dillon, Cassie Dillon, and Riccio. And yet that's the prime catalyst, apparently, why it's supposed to be there. If there's an agreement between him and Bagnato to do the harm that the Crown claims is part of their case. [TT 596.50 – 597.05]

...

Now if there was a struggle, and it is put to you that you would be satisfied beyond any doubt there was a struggle, you don't rip a jumper off or part thereof without exercising some degree of force, and if it was cut by a knife I put this to you, members of the jury, and it is just as compelling, if not more, in terms of the information you have, is that there may well have been a struggle between the deceased man and the accused, and that the deceased man had hold of him very closely and was ripping at his jersey both with his hand and a sharp object and that is how it got cut and then the other man Bagnato stabbed him in the back to get him off the accused. Then when that came to an event, consistent you may think with turning around and attempting to have a Martial Arts kick, is shot in the foot with the sole of the foot up and then he seeks to exit the underground car park and Bagnato shoots him in the back. [TT 607.39 – 608.01]

...

Now this agreement, plainly it is, it would be silly to say look you don't go to a solicitor and knock up an agreement that we are going to do this criminal act, obviously, however the Crown have got to prove that there is an agreement between us and Bagnato to commit this crime. [TT 608.32 – 608.35]

...

And it is put on the accused behalf you could not be satisfied beyond reasonable doubt about murder or manslaughter, based on the principle of joint criminal enterprise, and that the Crown's case has not been made out. [TT 633.12 – 633.15]

Ninthly, as for the portions of the summing-up that are relevant to this ground, they commence at page 7:

This brings me to say something about the principal matters which the Crown contends in order to prove the guilt of the accused, Mr Carbone. They are, first, that there was a joint criminal enterprise between the accused, Mr Carbone, and Antonio Bagnato to kill or really seriously injure the deceased Brad Dillon or to assault him and the accused foresaw the possibility that during the assault Mr Dillon might be killed or really seriously injured. And, second, that pursuant to that enterprise, one or other or both of them inflicted the fatal injuries on Mr Dillon. There is no direct evidence of either of those matters so the Crown is relying on circumstantial evidence to prove them.

I will very shortly be saying, I think before lunch, more about circumstantial evidence but before I do so I should tell you about the concept of joint criminal enterprise because that is really central to the Crown case in this trial. When two or more people, two people in this case, embark together upon a joint criminal enterprise to commit a particular crime then each person is criminally liable for the acts of the other in committing that crime pursuant to that enterprise and also for acts which go beyond the ambit of their original agreement so long as the crime which was in fact committed was foreseen by the person you are concerned with as a possible incident of the common enterprise.

So the Crown in this case must prove the following matters; first, that the fatal injuries were inflicted by either the accused or Antonio Bagnato or both of them and this is encapsulated in Question 3 that you have, and that this was done pursuant to a joint criminal enterprise between them to kill or really seriously injure the deceased. That is Question 4, or, if you are not satisfied of this matter, Question 4, that it was done pursuant to a joint criminal enterprise to assault Mr Dillon and the accused foresaw the possibility that during the course of the assault the deceased might be killed or really seriously injured, and that is encapsulated in Questions 5 and 6.

A joint criminal enterprise exists when two or more people reach an understanding or arrangement amounting to an agreement that they will commit a crime. Here primarily raised by the Crown is the killing or really serious injuring or Mr Dillon. The agreement need not have been expressed in words. In other words it could have been a tacit or unspoken agreement and its existence can be inferred from all the facts and circumstances surrounding the commission of the offence which you find proved beyond reasonable doubt. The Crown does not have to prove that the agreement was reached at any particular time before the offence was committed. You are looking only at the actual time of the commission of the offence of the infliction of those fata! injuries, whether at the time you can infer that there was an agreement between the accused and Mr Bagnato to really seriously injure or kill Mr Dillon or in the circumstances referred to in Question 6 to assault him, remembering of course that it is for the Crown to prove this matter beyond reasonable doubt.

If you were to have a reasonable doubt then that is the end of it. The mere circumstances in which the particular offence takes place can sometimes themselves be sufficient to establish that at some point an agreement must have been reached between the participants that a particular offence should be committed. Indeed this is essentially what the Crown submits in the present case. I am not going to go through the details here obviously. They were very thoroughly enumerated by the Crown Prosecutor in his closing address.

If you are satisfied beyond reasonable doubt that there was a joint criminal enterprise between the accused and Mr Bagnato to really seriously injure or kill the deceased then it matters not which one of them inflicted the fatal injuries. Both are responsible in law for the actions of the other so long of course they were committed pursuance to that enterprise. (S/U p 7-9)

...

No-one saw the killing and neither of them has ever admitted to being involved in it, nor is there any direct evidence of a joint criminal enterprise between them to injure the deceased so the Crown relies on circumstantial evidence to prove that it was one of those who inflicted the fatal injuries, and, assuming that you cannot be satisfied beyond reasonable doubt that it was the accused personally himself who did so, then to prove that it was either the accused or Mr Bagnato who inflicted the fatal injuries and that there was a joint criminal enterprise between them to at least really seriously injure him or to assault him in the circumstances set out in Questions 5 and 6. In that event, each one is criminally liable for the acts of the other pursuant to that agreement. (S/U p 9)

...

So what you have to do is first look at all the circumstances upon which the Crown relies to give rise to the inference in question and determine which of those have been proved beyond reasonable doubt and then ask whether, on the basis of those facts which you do find proved beyond reasonable doubt, the only rational conclusion is that either it was the accused who inflicted the fatal injuries or that it was either he or Mr Bagnato or both and there was a joint criminal enterprise between them to at least really seriously injure Mr Dillon or in the case in questions 5 and 6 to assault him and the accused foresaw the possibility of really serious injury or death. If your answer is "yes" then the Crown has established the matter in question but on the other hand if on the basis of all of the material you find proved beyond reasonable doubt there remains a rational hypothesis or possibility that is inconsistent with the matter sought to be proved by the Crown then it goes without saying that you cannot be satisfied of that matter beyond reasonable doubt. (S/U p 10)

...

Now I come then to say something about the offence of murder. As relevant in this trial there are two matters to be proved by the Crown in relation to the offence of murder. They are first, that either the accused himself, or either him or Mr Bagnato, with whom he was in a joint criminal enterprise, deliberately inflicted the fatal injuries on the deceased.

Now a deliberate act in this context is an act which is neither involuntary or accidental. Well, there could not be any question of the stabbing and shooting of Mr Dillon being accidental or involuntary. So it would be clearly available to you to find that it was a deliberate act. The essential question under this requirement is, has the Crown proved that it was the accused himself who inflicted those fatal injuries, or that it was either him or Mr Bagnato, and it was done pursuant to a joint criminal enterprise.

The second requirement is that at the time of the infliction of those fatal injuries, the person or persons who inflicted you [sic] them intended to kill or really seriously injury Mr Dillon. The law says cause grievous bodily harm, but it means exactly the same as really serious injury, which is a more readily understandable concept than grievous bodily harm. To be a really serious injury it doesn’t have to be permanent or even life-threatening, but it clearly has to be significantly more than a trivial injury.

Well, it is for you, as the finders of fact in this trial, to determine what sort of injury would be categorized as a really serious injury, but in the circumstances of this case, given the number of wounds inflicted on the deceased, particularly the gunshot wounds, I do not really perceive anybody to suggesting [sic] that you should not be satisfied that whoever inflicted those injuries must have intended to at least really seriously injure Mr Dillon. (S/U p 15-16)

Tenthly, after retirement, the jury asked the following written question:

If in the moment before assault on Dillon was imminent, the accused understood the assault was about to take place, the accused chooses to remain present, does that constitute an agreement pursuant to a joint criminal enterprise to assault the deceased? (S/U p 50)

The answer was discussed at length between her Honour and both counsel, and I do not extract that discussion. It was ultimately answered as follows (at summing-up page 61):

Well it’s an interesting question, and realistically there are two answers, and they essential relate to the reason why the accused remained there. So the first possible situation is that if in remaining there with the knowledge he was intending to implicitly, or tacitly provide support for Mr Bagnato in the assault on Mr Dillon, then the answer would be yes. He was - I can see you're writing it down. He was intending to implicitly or tacitly provide support for Mr Bagnato in the assault, then yes, his presence with that intention, in that situation, would be sufficient to constitute a joint criminal enterprise to assault Mr Dillon. But if he simply remained present as an onlooker, than the answer must be no.

There is no obligation upon a person in that situation to run away.

So you must remember of course that it is for the Crown to prove beyond reasonable doubt that there was a joint criminal enterprise between the accused and Mr Bagnato in relation to, so far as this question is concerned, an assault on Mr Dillon.

Oh, another question? I will just finish this.

Also I must remind you that if you do find beyond reasonable doubt that there was a joint criminal enterprise to assault Mr Dillon, then the Crown also has to prove that the accused contemplated the intentional infliction of really serious injury was a possible incident of that assault. It's what is called in the law, extended joint criminal enterprise; an act that goes beyond the original enterprise.

“Does provide support mean physical support?” No, not necessarily at all.

You would agree with that Mr Crown and [defence counsel]?

[DEFENCE COUNSEL]: Yes your Honour.

CROWN PROSECUTOR: Yes your Honour.

HER HONOUR: That's the current note: "Does provide support mean physical support? No. No need. Just mere presence, so long as it is pursuant to, in this case, an implicit agreement is sufficient. But certainly doesn't have to be physical support.

So, anything more arising from that [defence counsel]?

[DEFENCE COUNSEL]: No your Honour.

HER HONOUR: Mr Crown?

CROWN PROSECUTOR: No your Honour, thank you. (S/U p 61-62)

Finally, it was also submitted that a separate but related error had been made in the summing-up with regard to the “definition” of grievous bodily harm. I repeat simply for convenience the relevant paragraph:

The second requirement is that at the time of the infliction of those fatal injuries, the person or persons who inflicted you them intended to kill or really seriously injure Mr Dillon. The law says cause grievous bodily harm, but it means exactly the same as really serious injury, which is a more readily understandable concept than grievous bodily harm. To be a really serious injury it doesn't have to be permanent or even life-threatening, but it clearly has to be significantly more than a trivial injury. (S/U p 16)

Submissions of the applicant

I turn now to summarise the written submissions made for the applicant with regard to this ground.
The applicant asserted that an essential ingredient of the offence of murder is an intention to kill or to inflict grievous bodily harm. Where are an accused is said to be a participant in an extended joint criminal enterprise, it is necessary that the accused foresee the possibility of the other participant committing the act with the necessary intention for murder, in order to establish the elements of murder against the accused: see McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108.
He submitted that the necessary foresight of the commission of the act and consequence of infliction of grievous bodily harm along with the necessary intention for murder was omitted from, from the written direction contained in the “question trail”, from the oral explanation of that document, the summing-up to the jury.
The applicant pointed to page 7 of the summing-up, as previously set out by me at [31], to submit that, while the trial judge referred to the need for foresight of the possibility that the deceased might be killed or really seriously injured, and that, pursuant to the joint criminal enterprise, one or both of the men inflicted the injuries, there was no reference made to the necessary foresight of the intentional causing of death or grievous bodily harm.
There was a similar absence of reference to the necessity of foresight by the non-active participant of the relevant intention on the part of the active participant by the trial judge at pages 9 and 10 of the summing-up. Instead, it was said, the directions only dealt with the foresight of the infliction of really serious injury or death, in the absence of reference to foresight of the intention on the part of the other participant.
The written question trail provided to the jury was similarly said to be affected by the same significant error. The focus was upon questions 5 and 6, which directly addressed extended joint criminal enterprise, but failed to address the requisite intention for murder in that context. The applicant submitted that that was of obvious concern as the written document carried particular force and was likely to override the recollection that the jury had of any oral directions: see Justins v The Queen (2010) 79 NSWLR 544; [2010] NSWCCA 242; Hadchiti v R (2016) NSWLR 671; [2016] NSWCCA 663.
Furthermore, it was said that the additional oral directions provided to the jury in response to their question, at [33] above, were also affected by error. While the applicant conceded that the reference by the trial judge to the contemplation of the “intentional infliction of really serious injury” by the applicant in her Honour’s response to the jury question was correct when read in isolation, the answer did not explicitly clarify or correct the other oral directions provided, nor the error in the question trail.
Separately, it was said that the answer to the jury question failed to address appropriately the issue of liability by way of joint criminal enterprise, when the jury question itself had implied that the jury understanding was that there had been no antecedent agreement to inflict violence upon the deceased.
In such circumstances, it was argued that liability could only be derivative. Because the Crown case was based upon basic and extended joint criminal enterprise, liability for which is primary, the jury had not been directed about derivative liability. In any event, the applicant asserted that mere presence, in the absence of an agreement or any relevant intention, would not have been sufficient to establish liability, derivative or primary.
Finally, it was separately submitted that the jury were not appropriately directed as to the level of harm that needed to have been intended to be inflicted, for the purposes of foresight within extended joint criminal enterprise, because the trial judge had erred in the definition of grievous bodily harm provided in the summing-up.
It was argued that the characterisation of grievous bodily harm adopted by the trial judge as being “significantly more than [a] trivial” injury blended aspects of grievous bodily harm with aspects of actual bodily harm, the former of which involves “really serious injury”, irrespective of its permanency, and the latter of which requires injury that is more than transient and trifling and interferes with the health or comfort of the victim.
Those points were developed orally, as follows.
First, it was asserted that questions 1 and 2 of the question trail, which pertained to primary liability, should not have been included in the document at all, because it was never suggested by the Crown that it could prove that the applicant did, in fact, personally inflict the fatal violence. In other words, I understood the submission to be that they were, at best, simply extraneous.
Secondly, the answer provided to the written note of the jury, extracted at [33] above, when read as a whole suggests erroneously that the mere presence of the applicant could establish an agreement, participation in the agreement, and foresight of the intentional infliction of grievous bodily harm, even in the absence of the applicant intending to provide physical support to the co-accused.
Lastly, even if the trial judge did correctly state the necessary mental element for extended joint criminal enterprise right at the end--namely, that the accused “contemplated the intentional infliction of really serious injury”--there was nevertheless a miscarriage of justice. It was said that that was the case because the erroneous written directions in the question trail surely “trumped” the oral answer provided to the jury, especially in light of the trial judge having correctly stated the necessity of foresight of intention only once in the course of the entire trial.

Submissions of the respondent

Resisting this ground of appeal, the Crown asserted that, by way of the directions as a whole, including the final oral direction provided by her Honour in answer to the jury question, the jury were properly instructed with respect to the necessary foresight of the possibility of intention to cause really serious physical injury required for the offence of murder, pursuant to extended joint criminal enterprise.
The Crown began its written submissions by referring to relevant passages of the summing-up of the trial judge that have been set out above, only one of which will be repeated again for emphasis:

The relevant passage of the opening address of the Crown at trial, which discussed the need for foresight of the requisite intention for murder was also relied upon. I shall repeat it again for convenience:

In terms of the way that the Crown puts its case the Crown alleges a joint criminal enterprise between the accused and Mr Bagnato with respect to this matter and even though the precise role played by the accused is unknown the Crown says that from the facts of the case it can be inferred that the accused gave his assent to a criminal enterprise which either firstly involved the infliction of what we call grievous bodily harm or very serious bodily injury or, putting its case a second way, that the accused contemplated the intentional infliction of grievous bodily harm through the discharge of a firearm or use of a knife should the occasion arise.

The Crown conceded that there were some passages in the summing-up and question trail in which her Honour failed to refer specifically to the requirement of foresight of possibility of intention, in the context of an extended joint criminal enterprise, and that those omissions were errors of law. Having said that, the Crown submitted that the grave nature of the injuries, coupled with the lethal weapons used to inflict those injuries, may explain why her Honour adopted the course that was taken. In other words, I understood the submission to be that, on the facts of this case, even if there has been a legal omission, it was of no moment.
In any event, it was argued that any confusion that may have been created about the need for the Crown to prove beyond reasonable doubt that the applicant contemplated that the intentional infliction of really serious physical injury was a possible incident of the assault on the deceased, was largely resolved by the final direction by her Honour. And in circumstances in which neither the Crown at first instance nor defence counsel considered it necessary to amend the question trail, it was argued that the question trail would not have “overridden” the ultimate oral direction given by her Honour.
The Crown also submitted that, when her Honour responded to the jury question and noted that the applicant needed to be “intending to implicitly or tacitly” provide support for the co-accused in the assault, that was clearly referable to the situation whereby the applicant, having recognised what was occurring, continued to participate in a joint criminal enterprise that was already in existence.
With regard to the separate point about the definition of grievous bodily harm, the Crown rejected the proposition that the jury was not properly directed with respect to the level of harm that needed to have been inflicted. That was on the basis that an injury being “significantly more” than a trivial injury was consistent with the definition as per Haoui v R [2008] NSWCCA 209, and that defence counsel had made no complaint at trial.
In oral submissions, the Crown confirmed his acceptance that some of the directions of the trial judge considered in isolation were indeed deficient. However, it was said that, read as a whole and in light of the Crown case, including the manner in which the Crown opened, it cannot be suggested that the trial judge erred consequentially.
Ultimately, it was emphasised that her Honour’s directions in their entirety, especially the final oral direction provided to the jury, clarified that the Crown did indeed have to prove (for the purpose of basic joint criminal enterprise) that the applicant was acting pursuant to an implicit agreement, even if his physical act pursuant to that agreement was mere presence; and furthermore (for the purpose of extended joint criminal enterprise) that he contemplated that the intentional infliction of really serious injury was a possible incident of the assault upon the deceased.

Consideration of ground 1

Discussion of the doctrines within the overarching topic of criminal complicity is made difficult by lack of standardised nomenclature. In the following passages, I have adopted the terminology that I believe is most often used in the High Court of Australia.
In the interests of clarity, I first discuss what the Crown case did not encompass.
The Crown never asserted that it could prove that the applicant had personally committed the physical elements of the offence, whether in whole or in part. In other words, the Crown never asserted that it could prove beyond reasonable doubt that the accused shot and stabbed the deceased, or that the accused shot him, or that the accused stabbed him. In other words, the Crown did not set out to prove that the applicant was the sole “true” principal in the first degree, or one of them: Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316. To express that another way, the Crown (at the least implicitly) conceded that it could not prove that the accused was the actor or an actor. Accordingly, the Crown case was founded upon what I shall compendiously call complicity.
Nor did the Crown rely upon what I shall call accessorial liability: a principal in the second degree aiding, abetting, counselling or procuring the principal in the first degree to commit a serious offence: Stokes and Difford v R (1990) 51 A Crim R 25. That derivative subset of complicity – not requiring agreement as to the commission of a crime, but rather intentional encouragement or assistance, provided before or during the offence, to another person who commits it – was never relied upon, and never left to the consideration of the jury.
Rather, the Crown case was left to the jury on joint criminal enterprise. And the Crown relied upon its two related but conceptually separate variants: basic joint criminal enterprise, and extended joint criminal enterprise.
For the former in the context of murder, the Crown needed to prove beyond reasonable doubt that the applicant and the co-accused entered into an agreement to inflict at least grievous bodily harm upon the deceased; that one or other of them voluntarily did an act with that intent; that the deceased died as a result of that act; and that the other person was at least present when the act was committed, and present pursuant to that agreement.
For the latter doctrine in the context of murder, the Crown needed to prove that the applicant and the co-accused had entered into an agreement to commit an offence; that during the commission of the agreed offence one or other of them voluntarily did an act that caused the death of the deceased; that that actor at the time intended at least to inflict grievous bodily harm; and that the other person at least foresaw the possibility of the infliction of grievous bodily harm, with intent to do so, by that actor.
As for basic joint criminal enterprise, in my opinion the legal explanations and directions given were very largely correct: in the opening address of the Crown; in the question trail; in its contemporaneous oral explanation; in the summing-up. On balance, however, I consider that they were at the least confusing in the answer to the jury question. I shall return concisely to my reasons for that view later.
But it is extended joint criminal enterprise that was the focus of the ground, and that is, in my opinion, the real problem.
The doctrine of extended joint criminal enterprise is based upon: agreement to commit a foundational offence together; foresight of the possibility of the existence of the elements of a further, more serious, offence; and readiness to proceed with the foundational offence nevertheless. Those are the aspects of the doctrine that give rise to the moral culpability underpinning criminal liability for the more serious offence: see Keane J in Millerv The Queen; Smith v The Queen; Presley v Director of Public Prosecutions (SA) [2016] HCA 30; (2016) 259 CLR 380. If those elements are established, the “non-actor” can be guilty of the further offence, even though he or she neither intended nor desired it. But an important part of the doctrine is that the necessity for foresight of possibility of elements of the further crime includes foresight of possibility of the necessary mental element or elements of the offence charged.
Applying that analysis to the count of murder on the indictment, for the Crown to succeed against the applicant on the basis of extended joint criminal enterprise, it needed to prove beyond reasonable doubt that the applicant agreed with the co-accused that they would together commit a battery upon the deceased; that the co-accused committed murder; and that the applicant foresaw the possibility that, during the course of that battery, the co-accused may not only inflict death or really serious physical injury upon the deceased, but also that the co-accused may do so intentionally. So much has been established for 27 years: McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108.
Applying that analysis, I shall now set out whether the things said to the jury at various stages about the requirements of extended joint criminal enterprise were complete and correct, or incomplete and incorrect. I shall adopt the same order of analysis as I have done with regard to the extracted passages above.
First, what the Crown prosecutor said in his opening was complete and correct, because he said that the second basis of the Crown case was “that the accused contemplated the intentional infliction of grievous bodily harm”.
Secondly, thirdly and fourthly, on the assumption that the draft of the question trail under discussion was not more extensive than the final version ultimately given to the jury, despite the agreement of both counsel, the discussion between her Honour and the two of them proceeded on an understanding that was, with respect, incomplete and incorrect. That is because it did not include foresight of the intentional infliction of grievous bodily harm as a necessary element within murder based upon extended joint criminal enterprise.
Fifthly, question 6 within the final version of the question trail given to the jury was incomplete and incorrect, for the same reason. And the statement “If “yes” you will find the accused guilty of murder” constituted a false path to a verdict of guilty of that offence.
Sixthly, for the same reason, the oral explanation of the question trail was also, with respect, incomplete and incorrect.
Seventhly, the final address of the Crown prosecutor was, with respect, incomplete and incorrect: it neglected to speak of contemplation of the possibility of the intentional infliction of grievous bodily harm.
Eighthly, the final address of defence counsel was, with respect, complete and correct as far as it went, in that it spoke only of the basal requirement of agreement for either form of joint criminal enterprise, and did not delve further into the specific elements of extended joint criminal enterprise.
Ninthly, the summing-up was, with respect, incomplete and incorrect, in that it spoke more than once of foresight of the possibility of an assault with the consequences of death or really serious physical injury, but neglected to speak of foresight of the possibility of the necessary intention to bring about those consequences. It was also incomplete and incorrect to the extent that it referred repeatedly to question 6 in the question trail. It is true that the summing-up spoke, with respect correctly, of the need for foresight of the possibility of “the crime which was in fact committed”, but it was never explained to the jury that that reference to a crime included its mental elements.

Tenthly and finally, the answer to the question from the jury was, with respect, complete and correct with regard to this aspect. That is because, towards its conclusion, it spoke of the Crown needing to “prove that the accused contemplated the intentional infliction of really serious injury was a possible incident of that assault.” (As I have said, I shall deal with other aspects of the answer to the jury question separately.)
In summary then: right at the start of the trial in the Crown opening, the necessary element was given orally to the jury. And right at the end of the trial, in answer to the jury question, it was given orally to the jury again. But in between, and in particular in the written directions contained in the question trail, it was not left to the consideration of the jury.
In my opinion, it is too much to expect the jury to have heard, understood, and applied that necessary element in all of those circumstances. And I say that appreciating that the very last thing they were told about the topic was, in truth, complete and correct. Apart from anything else, if the jury had indeed understood that they were being told of a necessary mental element that was not discussed in the question trail, one would have expected a further question about that disjunction.
In my opinion, the applicant is correct to say that the failure to direct the jury about the necessity of foresight of the possibility of the mental element necessary for the offence of murder provided a “false path” to a verdict of guilty on that count. By that I mean, having been inadequately directed about the elements, the jury could have returned such a verdict without in truth having been satisfied of all necessary elements beyond reasonable doubt.
And that is not merely a theoretical possibility, divorced from the evidence actually placed before the jury, for the following reasons.
First, defence counsel asked the jury to reflect upon circumstances whereby some sort of planned confrontation may have gotten out of control and the co-accused acted with great violence towards the deceased without the agreement of the applicant, thereby explaining the scientific and post-mortem evidence.
Secondly, it is not inconceivable that the jury could have found that the accused agreed to be part of a battery upon the deceased, foresaw the possibility of grievous bodily harm ultimately resulting to him, but did not foresee the possibility of that occurring intentionally; for example, the deceased fleeing in a panic and being hit by a car, without that having been intended at all by either the applicant or the co-accused. In those circumstances, the applicant would not have been guilty of murder, because he would not have foreseen the possibility of the intentional infliction of grievous bodily harm or death. And yet the directions told the jury that he would have been.
In my opinion, a miscarriage of justice has been established with regard to ground 1, subject to Rule 4 of the Criminal Appeal Rules (NSW), and the “proviso” to be found in s 6(3) of the Criminal Appeal Act 1912 (NSW). I shall discuss each of them concisely later in this judgment.
Because I consider that the primary submission underpinning ground 1 establishes a miscarriage of justice, I shall only respond briefly to the ancillary submissions made in support of this ground.
In my opinion, read in the context of the whole of the relevant paragraph of the summing-up, the direction about the meaning of the phrase “grievous bodily harm” was quite correct. It brought home to the jury that what needed to be proven was really serious physical injury.
As for other aspects of the question trail, it is correct to say that questions 1 and 2 were extraneous, because the Crown never purported to be able to prove that the accused was either the actor, or one of the actors. It is also correct to say that question 7 was extraneous, for the same reason, a topic to which I shall return in discussing ground 2. Having said that, in my opinion, nothing turns on that with regard to this ground, because the jury would readily have answered in the negative any question based upon proof beyond reasonable doubt of the applicant having been the actor or an actor, and moved on to consideration of joint criminal enterprise.
Finally, as for the answer to the question from the jury, in my opinion the jury question was seemingly not predicated upon an understanding of the need for proof of presence pursuant to an actual agreement to commit a crime together. It seemed to be asking whether there could be some sort of constructive agreement based upon an understanding on the part of the applicant of what the co-accused was to do, and a choice to remain nevertheless.
It is true, as I have said, that the last part of the answer was correct with regard to the need for proof of contemplation of a possible intention to inflict really serious (physical) injury. It is also true that the second part of the answer was correct to say that the Crown must prove beyond reasonable doubt a joint criminal enterprise to commit the foundational offence of assault.
Even so, it was not correct to say, in the first part of the answer that “He [the applicant] was intending to implicitly or tacitly provide support for Mr Bagnato in the assault, then yes, his presence with that intention, in that situation, would be sufficient to constitute a joint criminal enterprise to assault Mr Dillon”. Expressing joint criminal enterprise in that way was a melding of, on the one hand, concepts of encouragement or assistance without the necessity of agreement to commit a crime together, the foundation of accessorial liability, derivative in nature; and, on the other hand, the concept of agreement to commit a crime together, the foundation of joint criminal enterprise, primary in the nature of its liability.
Having said that, despite those deficiencies in the answer to the question, they are secondary to the principal failing with regard to ensuring understanding of the need for proof beyond reasonable doubt an essential element of murder by way of extended joint criminal enterprise. In my opinion, on their own, they do not constitute a miscarriage of justice.
In short, as I have said, subject to Rule 4 and the proviso, I would uphold this ground.

Ground 2: The directions as to manslaughter were inadequate and erroneous.

Because I would uphold ground 1, and, as explained below, I do not believe that anything can stand in the way of the conviction for murder being quashed, my analysis of grounds 2 and 3 will be more concise than if they were determinative of my opinion.
As I have done with regard to ground 1, I shall now set out the relevant passages from the trial that the applicant relied upon to show error. There will be a degree of repetition, again for the convenience of the reader.
Before the provision of the question trail to the jury, the following discussion occurred between her Honour and counsel:

HER HONOUR: Just a second, I think the last one is wrong. It has to be "no" to 7, "You will find the accused not guilty". I don't see how the unlawful and dangerous act can be one by extension of another - done by another person Mr Crown. If that makes sense.

CROWN PROSECUTOR: Your Honour, I argued joint criminal enterprise in relation to both murder and manslaughter in the case of IL v The Queen before Mr Justice Hamill. That was a felony murder case. He rejected both the murder and manslaughter aspect. On appeal to the Court of Criminal Appeal Justice Simpson before the Fully Court agreed with my view and reinstated both. Unfortunately, it then went on appeal to the High Court, and in a judgment of seven, the vote was split. Two of the justices upheld essentially my argument and that of Justice Simpson, three others went off on a tangent of their own, talking about suicide, which no-one had ever raised -

HER HONOUR: I remember that one, yes.

CROWN PROSECUTOR: — anywhere, so. Your Honour, in that particular case there was a joint criminal enterprise to manufacture a large commercial quantity of methylamphetamine, and as I say two of the justices held that there could be a joint criminal enterprise there where the accuse could be found guilty of manslaughter because of the nature of the offence.

HER HONOUR: I just don't see how it applies here, how it could realistically apply at all. It certainly could apply in the unlikely event that they were satisfied to a requisite degree that it was the accused himself who did it, but if they cannot say which one, I just don't see how it can apply.

CROWN PROSECUTOR: If there is a joint criminal enterprise to assault.

HER HONOUR: If there’s a joint criminal enterprise to assault him, and he foresees the possibility, then that’s it; and that’s already dealt with. Under 5.

CROWN PROSECUTOR: Yes, exactly, alright, I’ll accept that your Honour. [TT 559.13 – 559.46]

As for the question trail itself, and its oral explanation at the time it was provided, they are extracted above, and I shall not repeat them, except as follows:

Question 7: That the death of the deceased was caused by a voluntary act of the accused which was an unlawful and dangerous act.

If “yes” you will find the accused not guilty of murder but guilty of manslaughter.

If “no” you will find the accused not guilty.

In the summing-up, the following was said about the topic of manslaughter:

The real question does get back to, who did inflict those injuries? And yet again if you are not satisfied beyond reasonable doubt that it was the accused himself who inflicted them, then we get back to the joint criminal enterprise, which you may think is really the central issue in this trial. But in the event that you were satisfied beyond reasonable doubt that it was the accused who inflicted the fatal injuries, but without the intent of killing, or really seriously injuring the deceased, you do have, under question 7, a vehicle by which you could find him not guilty of murder but guilty of manslaughter. And that is, as I said, only if you were to find beyond reasonable doubt that it was the accused himself who inflicted the fatal injuries, and that going back to question 7, it was caused by a voluntary act of the accused as opposed to an accidental act which was unlawful and dangerous act.

Well, there is no justification here so I can direct you as a matter of law that whoever inflicted those injuries, it was an unlawful act. And as to whether it was a dangerous act, as the note here says, an act is dangerous in this context if a reasonable person in the position of the accused would have realised that it exposed the deceased to a risk of serious injury. So it's a completely objective test of what the reasonable person in the position of the accused.

Now again of course that assumes that you were to find beyond reasonable doubt that it was the accused himself who inflicted the fatal injuries, and given the evidence in this trial, that might not be an easy finding to make. But that is a matter for you. In that event, if you were to find the matters set out in question 7 made out, then you would find him not guilty of murder but guilty of plans slaughter.

I have to tell you that it's always open to a jury in a murder trial to say not guilty of murder but guilty of manslaughter, and this is the means by which that verdict is available here. (S/U p 16-17)

Submissions of the applicant

The applicant submitted in writing that the overarching complaint for this ground of appeal was not that a verdict on manslaughter was left to the jury, but that the jury directions failed to address the possibility of a verdict of manslaughter in circumstances where the applicant was not the person who inflicted the fatal injuries.
Although this was a trial in which the evidence could not establish whether the applicant was or was not the assailant, it was argued that the directions about manslaughter were confined to circumstances where the applicant had himself inflicted the injuries on the deceased. The practical result was that unless the jury was satisfied that the applicant had, in fact, personally inflicted the fatal injuries, the only possible verdicts open to the jury were: guilty of murder, or not guilty of murder.
The applicant pointed to the real possibility that the jury could have reached a verdict of manslaughter if they had been established that there was an extended joint criminal enterprise, but that it featured the foresight of the possibility of a lower level of intended violence than an intention to kill or cause grievous bodily harm.
Separately, it was also suggested that there was a reasonable possibility that the jury could have reached a manslaughter verdict if they found that there had been an agreement to assault the deceased, with foresight of death or serious injury, but without the necessary foresight that it could be inflicted intentionally.
However, the question trail and the directions failed to permit a verdict of guilty of manslaughter based on the full range of reasonable possibilities available to the jury, and as a result, a miscarriage of justice had occurred: Restricted Decision [2019] NSWCCA 153.
At the hearing before this Court, the applicant emphasised those points, in particular the limiting effect of the directions with respect to the possible avenues whereby the jury could find the applicant guilty of manslaughter. He also stressed that the manslaughter directions were simply erroneous to the extent that they dealt with a finding that could not be established on the evidence, namely that it was the applicant himself who had inflicted physical harm upon the deceased.
Separately, the applicant parenthetically drew attention to the fact that even the written direction that was given to the jury about manslaughter was not quite correct. That is because it did not refer to realisation on the part of a reasonable person in the position of the accused that the act in question was exposing the deceased to an appreciable risk of serious injury.
Resisting this ground of appeal, the Crown asserted that the trial judge did not fall into error because a verdict of manslaughter on an alternative basis, namely by way of joint criminal enterprise, was not “reasonably open on the evidence”.
It was submitted that it was common ground at trial that the evidence was incapable of establishing the precise roles played by the applicant and the co-accused. But it was said that the evidence did establish that the nature of the injuries, namely four stab wounds to the back and several gunshot wounds, led inevitably to the inference that they could not have been inflicted without an intention to inflict at least very serious harm.
The Crown submitted that, in the unlikely event that it was only one assailant armed with all of the weapons and responsible for all of the injuries, it was highly unlikely that the other assailant, having the knowledge of the weapons, would not have foreseen the possibility of the intentional infliction of grievous bodily harm.
The Crown emphasised the following exchange in which the possibility of leaving manslaughter on a further alternative basis to the jury was discussed:

HER HONOUR: I just don’t see how it applies here, how it could realistically apply at all. It certainly could apply in the unlikely event that they were satisfied to a requisite degree that it was the accused himself who did it, but if they cannot say which one, I just don’t see how it can apply.

CROWN PROSECUTOR: It if there is a joint criminal enterprise to assault.

HER HONOUR: If there’s a joint criminal enterprise to assault him, and he foresees the possibility, then that’s it; and that’s already dealt with under 5.

CROWN PROSECUTOR: Yes, exactly. Alright, I’ll accept that your Honour. [TT 559.36 – 559.46]

The Crown submitted that in that passage her Honour clearly expressed the view that such a basis for manslaughter was not available on the evidence.
In oral submissions, it was emphasised that in circumstances where it was not open to the jury to identify the particular role of the applicant, it was not open to find an agreement about the infliction of a lower level of violence than grievous bodily harm. That was because of the nature of the weapons, especially the presence at the scene of a loaded gun, the injuries actually inflicted, and the unlikelihood that all the injuries were inflicted by the one person.
In relation to the alternative possibility that the applicant may have only agreed to an assault and only foreseen the possibility of some further unlawful and dangerous act, but not the intentional infliction of grievous bodily harm, the Crown submitted that such a scenario could give rise to a finding of manslaughter. However, it was emphasised that such circumstances simply did not arise on the objective evidence in the trial, and that is why manslaughter was correctly not left on that basis.

Determination of ground 2

As I have said, I shall be concise. In my opinion, this ground should succeed as well, for the following reasons.
First, it is well established that, in a trial for murder, failure to leave manslaughter as a lesser form of homicide when it is reasonably open on the evidence can undermine a verdict of guilty of murder, on the basis that the range of options with which one is presented can affect the choices that one makes: see Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414.
Secondly, it is true that manslaughter was left to the jury. But it was left on a basis that was otiose. That is because, although the Crown prosecutor had made it clear from the start of the trial in his opening that the Crown could not prove to the criminal standard that the accused was the actor or an actor, question 7 was predicated on that very proposition.
Thirdly, as the final address of defence counsel about possible alternative scenarios, combined with the problems illuminated by ground 1 demonstrate, there were ways in which manslaughter could have arisen. For example, if the jury were satisfied: that the applicant entered into a joint criminal enterprise to commit battery against the deceased; that battery caused his death; the battery was unlawful and dangerous; but the jury were satisfied neither that the joint criminal enterprise encompassed the infliction of grievous bodily harm, nor that the applicant foresaw as a possibility its intentional infliction, then the appropriate verdict would be “not guilty of murder, but guilty of manslaughter”, based upon a joint criminal enterprise to commit an unlawful and dangerous act that was ultimately fatal.
In other words, the initial thought of the Crown prosecutor expressed during discussions was, with respect, correct, and the opinion of the trial judge that manslaughter by unlawful and dangerous act could not arise in the context of basic or extended joint criminal enterprise was, with respect, incorrect.
In my opinion, on the evidence in this case, it was necessary to leave to the jury manslaughter by unlawful and dangerous act founded upon joint criminal enterprise. The failure to do so undermines the verdict of guilty of murder. I believe that a miscarriage of justice has been established here as well. I deal later with the application of Rule 4 and the proviso to this ground.
Finally, and again parenthetically, it is correct to say that the written direction about a “dangerous” act for the purposes of manslaughter at the conclusion of the question trail was not quite complete, because it did not refer to “an appreciable risk of serious injury”: Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313. But nothing turns on that, in light of the fact that that direction was inutile in any event.

Ground 3: The directions on circumstantial reasoning and inferences obscured the standard of proof.

The applicant submitted that the trial judge introduced jury directions on circumstantial reasoning and inferences that were unnecessary and unclear, and may have created confusion for the jury.

To permit understanding of this ground, it is convenient yet again to set out the relevant passages from the summing-up that the applicant referred to in his written submissions, commencing at page 10:

What it does mean is that the Crown case is dependent upon the drawing of inferences. So you have to be particularly careful, first, about the facts which you use as the basis for drawing any inferences and, secondly, as to the strength of the inferences which you do draw. In this case the Crown relies on the accumulation of a number of different factors, some of which would probably be insufficient on their own but the cumulative effect of which, according to the Crown case, point inexorably to the fact there was a joint criminal enterprise between the accused and Mr Bagnato to at least really seriously injure Mr Dillon and, pursuant to that agreement, one or other of them inflicted the fatal injuries.

You must, as I say, bear constantly in mind when you are looking at this material that the accused has to prove nothing to you. The burden remains on the Crown throughout this trial. His innocence is presumed unless and until the Crown proves his guilt. So what you have to do is first look at all the circumstances upon which the Crown relies to give rise to the inference in question and determine which of those have been proved beyond reasonable doubt and then ask whether, on the basis of those facts which you do find proved beyond reasonable doubt, the only rational conclusion is that either it was the accused who inflicted the fatal injuries or that it was either he or Mr Bagnato or both and there was a joint criminal enterprise between them to at least really seriously injure Mr Dillon or in the case in Questions 5 and 6 to assault him and the accused foresaw the possibility of really serious injury or death. If your answer is "yes" then the Crown has established the matter in question but on the other hand if on the basis of all of the material you find proved beyond reasonable doubt there remains a rational hypothesis or possibility that is inconsistent with the matter sought to be proved by the Crown then it goes without saying that you cannot be satisfied of that matter beyond reasonable doubt. (S/U p 10)

This was followed by the following exchange in the absence of the jury:

CROWN PROSECUTOR: Your Honour this is a strands in the cable case, this is a question of what circumstances they accept. They do not have to accept it beyond reasonable doubt which is what your Honour has put to them. It is a question of what they accept and then by accumulation whether they are satisfied beyond reasonable doubt.

HER HONOUR: They don't have to accept the basic facts?

CROWN PROSECUTOR: This, as I say your Honour, is a strands in the cable case so no circumstance has to be proved beyond reasonable doubt. It is the question of accumulation and what they accept as having been the case. What they accept as the facts then cumulatively whether they are satisfied of that beyond reasonable doubt.

HER HONOUR: Whether the end result is beyond reasonable doubt?

CROWN PROSECUTOR: Yes.

HER HONOUR: Do you accept that [defence counsel]?

[DEFENCE COUNSEL]: I think my friend should articulate it perhaps in writing I am not of the understanding that is how he ran his case. (S/U p 11)

Her Honour subsequently directed the jury as follows:

HER HONOUR: Members of the jury, I have to correct something I said shortly before lunch when talking about circumstantial evidence. As the Crown Prosecutor has reminded me, there are two types of circumstantial evidence cases: One is described as the links in the chain case; and the other is the strands in the cable-type case.

Now in the former, the links in the chain, the Crown case is dependent upon each of those links in the chain being proved and, therefore, it is necessary to prove them all beyond reasonable doubt. In other words, all the facts said to give rise to the proposition asserted by the Crown, but in a strands in the cable circumstantial evidence case, it is the end determination which needs to be established beyond reasonable doubt; not necessarily the primary facts or intermediate facts upon which the Crown relies to establish that matter.

So I take back what I said to you about looking at the circumstances upon which the Crown relies as a basis for drawing the inference in question, and using only those facts that you find established beyond reasonable doubt. In fact it is not necessary to go as far as that in relation to those primary facts upon which the Crown relies.

So what you do need to do is go to the primary facts relied upon by the Crown, and determine whether they are established by the evidence; not necessarily to the high standard of beyond reasonable doubt, but just established to your satisfaction by the evidence. You then put all facts which you find to have been established by the evidence, the only rational conclusion is the one which is sought to be drawn by the Crown. It is here that the high standard beyond the Crown, and determining whether together they prove beyond reasonable doubt the matter asserted by the Crown.

But the primary facts themselves do not need to be proved beyond reasonable doubt. You have to find them established, but not necessarily to that high degree of beyond reasonable doubt. So, as I said, to that extent, I take back what I said to you earlier when I was talking about circumstantial evidence. (S/UP p 14-15)

The applicant made the following points in written submissions.
First, it was asserted that there was a lack of distinction between direct and circumstantial evidence, and no specificity about the precise “primary facts” that the Crown argued were established on the evidence. Further, there was a number of facts relied upon in the Crown case, however there was no distinction drawn as to what extent the jury were required to be satisfied of each of those facts to find them established.
Secondly, it was said that that direction of the trial judge, as extracted in [123] above, referring as it did to intermediate facts, introduced an intermediate standard of proof that had the effect of creating uncertainty as to which matters required proof as primary or intermediate facts, and which matters required proof beyond reasonable doubt.
Thirdly, reference to the jury’s evaluation of whether the “only rational conclusion is the one which is sought to be drawn by the Crown” in the direction was said to have had the effect of undermining the burden and standard of proof, by introducing an elaboration upon the standard of proof based upon “rationality”.
Fourthly, it was contended that the direction as a whole was neither logical nor a stepped approach, and had the effect of obscuring the process which the jury had to undertake in order to evaluate the evidence in a circumstantial murder case. It was said that the absence of warnings regarding speculation or supposition and of focusing on a particular fact in isolation added to the confusion of the jury.
In oral submissions, the applicant emphasised that the directions were superfluous, on the basis that the directions created a false dichotomy for the jury about finding facts that are either “links in the chain” or a “strand in the cable”, when there may be some facts that fall under the former category and some that fall under the latter. It was also said that there may well have been some indispensable intermediate facts in this case, depending upon the analysis of the jury. Finally, it was said, that this ground needed to be seen in the context of the diminution in the elements that needed to be proven by the Crown underpinning ground 1.
In response to this ground, the Crown stated that nothing turned on the trial judge referring to some basic facts as “primary” or “intermediate facts”, particularly as her Honour later clarified that none of the facts had be proven beyond reasonable doubt, but rather considered together by the jury in deciding whether they could be satisfied beyond reasonable doubt of the guilt of the applicant.
Furthermore, it was submitted that her Honour’s reference to the “only rational conclusion”, when read in context, did not undermine the burden and standard of proof, as it merely emphasised that the jury needed to be satisfied about proof of guilt of the offence beyond reasonable doubt.
The Crown also drew attention to the fact that defence counsel made no application for a re-direction, nor suggested that the directions for the trial judge were erroneous or confusing.
At the hearing before this Court, the Crown asserted that the directions in relation to circumstantial evidence need to be read as a whole, and when they are, it is evident that the jury were clearly told that no particular fact needed to be proved beyond reasonable doubt.
While the trial judge did refer to some primary or intermediate facts in her Honour’s summing-up, it was made clear that none of those facts needed to be proven beyond reasonable doubt, and it was only the conclusion from those facts that needed to be established beyond reasonable doubt. As a result, the burden and standard of proof was not compromised by the directions provided by her Honour.

Determination with regard to ground 3

As I have said, I shall deal with this ground succinctly. My opinion can be expressed by way of the following propositions.
First, it was, with respect, an error for her Honour to direct the jury initially that primary facts needed to be proven beyond reasonable doubt. The submission of the Crown prosecutor that that error needed to be corrected was, with respect, clearly correct: see the judgment of Dawson J in Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, relied upon in many subsequent decisions of this Court.
Secondly, it was correct of her Honour to say by way of correction that the primary facts needed only to be “established” to the satisfaction of the jury, without providing a specific standard of proof. No standard of proof has been assigned by the criminal law to “establishment” of primary facts in a circumstantial case.
Thirdly, it was, with respect, confusing for her Honour to introduce the concept of “intermediate” facts into that correction. The term had not previously been used. Furthermore, neither party had submitted that this was a case in which the judge might need to direct the jury that, if they formed the view that certain intermediate facts were “indispensable” to proof of guilt, then they would need to be proven beyond reasonable doubt: see Shepherd v The Queen, R v Merritt [1999] NSWCCA 29, Burrell v R [2009] NSWCCA 163; (2009) 196 A Crim R 199, R v Davidson [2009] NSWCCA 150; (2009) 75 NSWLR 150.
Fourthly, I respectfully agree with the analysis of Spigelman CJ in R v Davidson at [10] and following, in which the Chief Justice spoke of the element of “redundancy” in informing a jury, which has already been told that the elements of the offence must be proven beyond reasonable doubt, that any intermediate fact that, in the assessment of the jury, is indispensable to arrival at that destination, must also be proven beyond reasonable doubt. I say that because the proposition would seem necessarily to follow, and not seem to be liable to misapprehension by a jury.
Fifthly, it is true that the dichotomy between a so-called “strands in the cable” case and a so-called “links in the chain” case is a primitive one: see the judgment of the Court in Burrell v R at [97]. But in my opinion this was a case in which a large number of primary facts were relied upon, the absence of no particular one of which would have been fatal to the Crown case, especially bearing in mind the undisputed presence of the applicant in the car park, in the company of the co-accused, when the deceased was shot and stabbed: see the judgment of Simpson J in R v Davidson at [74].
Sixthly, and relatedly, in my opinion there were no indispensable intermediate facts about which a direction needed to be given in this case, depending on how the jury chose to reason. For example, I do not accept the oral submission for the applicant that the proposition that the applicant took a knife from the nearby family business was, or could have been, an indispensable intermediate fact that needed to be proven beyond reasonable doubt before the jury could return a verdict of guilty of murder.
Seventhly and finally, there was no error in her Honour directing the jury that an essential part of proof beyond reasonable doubt of the offence was rejection of alternative hypotheses to the same standard. The latter is an entirely orthodox extrapolation of the former. If it had not been said, the summing-up may have been liable to criticism. And I have never understood it to have been held that the reference to the need for rejection of alternative rational hypotheses is a wrongful gloss on the criminal standard of proof.
In short, I accept that the correction of the initial error featured an unnecessary refinement that may have confused the jury. But I do not believe it can be characterised as a significant error, and certainly not as constituting a miscarriage of justice. And I am fortified in my opinion about that by the fact that defence counsel sought no redirection about the matter.
I would not uphold this ground.

Rule 4 – both successful grounds

I turn now to discuss the possible adverse effect of Rule 4 upon the two grounds that I believe are established.
No objection was taken to the deficient part of the question trail; indeed, it was agreed in by defence counsel. That raises a question whether leave should be granted to rely upon ground 1.
But the simple fact is that an essential element of murder by way of extended joint criminal enterprise was lacking. And, as I have said, it is not beyond the bounds of possibility that the jury were satisfied of foresight of the possibility of the outcome, without having been satisfied of foresight of the possibility of the intention to bring about that outcome. It is therefore possible that the applicant has been convicted of murder when the jury was not truly satisfied of his guilt of that offence. In other words, it is possible that a man who is not guilty of murder has been convicted of murder.
For that reason, I do not accept that Rule 4 can stand in the way of success of ground 1.
As for ground 2, the failure to leave manslaughter to the consideration of the jury on a valid basis may have made the jury more likely to return a verdict of guilty of murder. It was incumbent upon both counsel to assist her Honour to identify bases for the lesser form of homicide that were reasonably open on the evidence. Defence counsel did not contend that manslaughter should be left on any basis other than the single, otiose basis upon which it was left.
Even so, because of the importance of the issue, and the possibility that the practical “all or nothing” question with which the jury was confronted may have led to a verdict of guilty of murder, I do not believe that Rule 4 should stand in the way of success of this ground either.

The proviso – both successful grounds

Although as I have shown all grounds were firmly resisted by the Crown, no reliance was placed upon the proviso. That was for the simple reasons, as I understand them, that if ground 1 were to succeed, the applicant had not been in reality tried for the offence upon which he had been arraigned; and that, if ground 2 were to succeed, axiomatically one could not rely upon the satisfaction of the jury that the Crown had proven that the applicant was guilty of murder. I accept that concession. Apart from anything else, on the evidence, a false pathway to a verdict of guilty of murder was, at the least, conceivably taken, in accordance with ground 1. And the failure to leave manslaughter on a reasonably open basis may have made the jury more likely to return a verdict of guilty of murder, in accordance with ground 2.

Proposed orders

On the basis of the preceding analysis, I propose the following orders:

Leave to appeal against conviction granted.

Appeal upheld.

The conviction for murder entered against the applicant is quashed, and a new trial is to be had.

The matter is listed in the Arraignments List of the Supreme Court at 10 am on 12 February 2021.

WILSON J: I agree with Button J, for the reasons his Honour gives.

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Decision last updated: 03 November 2021

Medium Neutral Citation:	Carbone v R [2020] NSWCCA 318
Hearing dates:	13 May 2020
Decision date:	15 December 2020
Before:	Bathurst CJ at [1] Button J at [2] Wilson J at [153]
Decision:	(1) Leave to appeal against conviction granted. (2) Appeal upheld. (3) The conviction for murder entered against the applicant is quashed, and a new trial is to be had. (4) The matter is listed in the Arraignments List of the Supreme Court at 10 am on 12 February 2021.
Catchwords:	CRIMINAL LAW – murder trial – where Crown relied upon joint criminal enterprise – whether directions about mental element for extended joint criminal enterprise were inadequate – whether failure to leave manslaughter on a certain basis led to miscarriage of justice – whether directions about approach by jury to circumstantial case were erroneous – conviction appeal allowed
Legislation Cited:	Criminal Appeal Act 1912 (NSW), s 6(3)
Cases Cited:	Burrell v R [2009] NSWCCA 163; (2009) 196 A Crim R 199 Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 Hadchiti v R (2016) NSWLR 671; [2016] NSWCCA 663 Justins v The Queen (2010) 79 NSWLR 544; [2010] NSWCCA 242 McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 Millerv The Queen; Smith v The Queen; Presley v Director of Public Prosecutions (SA) [2016] HCA 30; (2016) 259 CLR 380 Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 Stokes and Difford v R (1990) 51 A Crim R 25 R v Davidson [2009] NSWCCA 150; (2009) 75 NSWLR 150 R v Merritt [1999] NSWCCA 29 Restricted Decision [2019] NSWCCA 153 Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313
Texts Cited:	Criminal Appeal Rules (NSW), r 4
Category:	Principal judgment
Parties:	Diego Carbone (Applicant) Regina (Respondent)
Representation:	Counsel: T Game SC & R Khalilizadeh (Applicant) F Vetro (Respondent) Solicitors: Gregory Goold Solicitors (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2014/255002
Publication restriction:	Not to be placed on Caselaw until any pending trial by jury resolved
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Date of Decision: 12 October 2017 Before: Matthews AJ File Number(s): 2014/255002