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Carbone v R

Carbone v R

Case [2020] NSWCCA 318 15 December 2020

Criminal Liability

Joint Criminal Enterprise

Mental Element

Miscarriage of Justice

Circumstantial Evidence

Criminal Law

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carbone v R

Details

AGLC: Carbone v The Queen [2020] NSWCCA 318
Case: [2020] NSWCCA 318
Decision Date: 15 December 2020

CaseChat Overview and Summary

The appellant, Carbone, was convicted of murder and various other charges arising from a shooting incident. The Crown argued that Carbone was part of a joint criminal enterprise with others, who had conspired to kill a victim. Carbone appealed against his conviction on various grounds, including the adequacy of jury directions relating to the mental element of the offence, the failure to leave the option of manslaughter, and the correctness of directions on the approach to a circumstantial case. The appeal was heard by the High Court of Australia.
The legal issues before the court included whether the trial judge’s directions to the jury about the mental element of the offence of murder in the context of a joint criminal enterprise were sufficient, whether the trial judge erred in not leaving the option of manslaughter, and whether the directions on the approach to a circumstantial case were erroneous. The appellant argued that these errors led to a miscarriage of justice.
The court found that the trial judge’s directions to the jury regarding the mental element of the offence in the context of a joint criminal enterprise were inadequate. The court held that the judge should have directed the jury to consider whether Carbone had the necessary intent to commit murder as part of the joint criminal enterprise. The court also found that the trial judge erred in not leaving the option of manslaughter, as there was evidence that could have supported a finding of manslaughter. Furthermore, the court found that the directions on the approach to a circumstantial case were erroneous, as the judge did not adequately explain to the jury the principles they should apply when considering circumstantial evidence. The court held that these errors led to a miscarriage of justice and allowed the appeal, setting aside the conviction.
The High Court allowed the appeal and set aside the conviction, ordering a retrial. The court emphasised the importance of clear and accurate jury directions in criminal trials, particularly in cases involving joint criminal enterprises and circumstantial evidence. The court also highlighted the need for trial judges to carefully consider whether to leave the option of manslaughter to the jury, even in cases where the Crown is seeking a conviction for murder.

Orders