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Carbone v R (No 2)

Carbone v R (No 2)

Case [2024] NSWCCA 7 14 February 2024

Appeal

Standard of Proof

Circumstantial Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Carbone v R (No 2) [2024] NSWCCA 7
Hearing dates: 18 September 2023
Date of orders: 14 February 2024
Decision date: 14 February 2024
Before: Simpson AJA at [1];
Price J at [91];
Davies J at [92]
Decision:
1. Leave to appeal against conviction granted;
2. Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against conviction – circumstantial evidence – standard of proof of intermediate facts – whether higher standard of proof applies to certain non-indispensable intermediate facts

Legislation Cited:
Crimes Act 1900 (NSW), s 418
Criminal Appeal Act 1912 (NSW), s 5
Criminal Procedure Act 1986 (NSW), ss 132, 133
Evidence Act 1995 (NSW), ss 53, 184

Cases Cited:
Carbone v R [2020] NSWCCA 318
Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7
Davidson v R (2009) 75 NSWLR 150; [2009] NSWCCA 150
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
The Queen v Baden-Clay (2006) 258 CLR 308; [2006] HCA 35
The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13

Category: Principal judgment
Parties: Diego Carbone (Applicant)
The Crown
Representation:
Counsel:
T Game SC/R McMahon (Applicant)
G Newton SC/S Lind (Crown)
Solicitors:
Goold Law (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2014/255002
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

[2021] NSWSC 1552

Date of Decision:

10 December 2021

Before:

Garling J

File Number(s):

2014/255002

Judgment

SIMPSON AJA: At just after 5.20 pm on 11 August 2014 Bradley Dillon died on a footpath outside an underground carpark in the Sydney suburb of Leichhardt. He had suffered three gunshot wounds and four stab wounds. On 29 August 2014 the applicant, Diego Carbone, was arrested at Sydney Airport and charged with Mr Dillon’s murder. On 12 October 2017, after a jury trial, the applicant was found guilty of Mr Dillon’s murder and sentenced to imprisonment for 28 years, with a non-parole period of 21 years, commencing on 23 July 2015. On 15 December 2020 this Court upheld an appeal against the conviction and ordered a new trial: Carbone v R [2020] NSWCCA 318.
On 12 October 2021 a second trial commenced in the Supreme Court. Pursuant to s 132(1) of the Criminal Procedure Act 1986 (NSW) the trial was by judge alone (Garling J). On 10 December 2021 Garling J found the applicant guilty of Mr Dillon’s murder: R v Carbone [2021] NSWSC 1552. On 14 April 2022 Garling J sentenced the applicant to imprisonment for 24 years commencing on 23 July 2015 with a non-parole period of 18 years: R v Carbone [2022] NSWSC 373.
The applicant now seeks to appeal against the conviction. He has not sought leave to appeal against the sentence imposed. He proposes to raise three grounds of appeal against the conviction, none of which raises a question of law alone. The applicant therefore needs leave…

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 (No 2)

Details

AGLC: Carbone v R (No 2) [2024] NSWCCA 7
Case: [2024] NSWCCA 7
Decision Date: 14 February 2024

CaseChat Overview and Summary

In Carbone v R (No 2), the respondent appealed against his conviction for murder. The court heard evidence that the appellant had murdered the victim, but the only evidence linking the appellant to the crime scene was circumstantial. The appeal was brought before the High Court of Australia, which had to determine the legal issues concerning the standard of proof of intermediate facts in criminal cases.

The central legal issue in this case was whether the standard of proof for intermediate facts, which are non-indispensable facts that support the inference of the crime, should be higher than the standard of proof for the ultimate facts. The court had to consider whether the prosecution had to prove intermediate facts beyond reasonable doubt, and whether the standard of proof for intermediate facts should be different from the standard for the ultimate facts. The appellant argued that the prosecution had failed to prove the intermediate facts beyond reasonable doubt, which led to an unsafe and unsatisfactory conviction.

The High Court held that the standard of proof for intermediate facts in criminal cases should not be higher than the standard for the ultimate facts. The court reasoned that requiring a higher standard of proof for intermediate facts would make it more difficult to secure convictions in cases where the evidence is circumstantial. The court emphasised that the standard of proof for the ultimate facts, which is beyond reasonable doubt, should apply to all facts that are necessary to prove the crime. The court concluded that the prosecution had to prove the ultimate facts beyond reasonable doubt, and that the standard of proof for intermediate facts should not be different from the standard for the ultimate facts.

The High Court allowed the appeal and quashed the conviction. The court ordered that the respondent be retried, and that the prosecution prove the ultimate facts beyond reasonable doubt, without requiring a higher standard of proof for intermediate facts. The court emphasised that the standard of proof for intermediate facts should not be higher than the standard for the ultimate facts, and that the prosecution had to prove the ultimate facts beyond reasonable doubt.

Orders