Disano v The Queen - [2006] NSWCCA 125

NEW SOUTH WALES COURT OF APPEAL

CITATION: Disano v Regina [2006] NSWCCA 125

FILE NUMBER(S):
2005/2375

HEARING DATE(S): 13/04/2006

DECISION DATE: 18/05/2006

PARTIES:
Carmelo Disano - Appellant
Regina - Respondent

JUDGMENT OF: McClellan CJ at CL Hoeben J Johnson J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70028/04, 2004/23

LOWER COURT JUDICIAL OFFICER: Knight AJ

COUNSEL:
Paul Byrne SC - Appellant
D Arnott SC - Crown

SOLICITORS:
Nyman Gibson Stewart - Appellant
S Kavanagh, Solicitor for Public Prosecutions - Crown

CATCHWORDS:
CRIMINAL LAW - appeal against conviction - murder - whether jury were misdirected as to provocation under s23(3)(a) of the Crimes Act - rule 4 of the Criminal Appeal Rules.

LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Rules

DECISION:
Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/2375
McCLELLAN CJ at CL
HOEBEN J
JOHNSON J
Thursday, 18 May, 2006

Carmelo DISANO v REGINA

Judgment

McCLELLAN CJ at CL: I agree with Hoeben J.
HOEBEN J: The appellant, Carmelo Disano, was tried on a charge that on 2 January 2004 at Abbotsford in the State of New South Wales he did murder Antonino Basile, the father of his estranged wife. On 8 December 2004 after a trial which lasted thirteen days, the appellant was convicted of the offence of murder. He was sentenced to a term of imprisonment with a non-parole period of 12 years and a balance of term of 5 years. The sentence was to commence on 2 January 2004.
The appellant had pleaded not guilty of murder but guilty of manslaughter, but the Crown did not accept the latter plea in discharge of the indictment. The appellant’s partial defence relied on a number of alternate grounds.
(i)Lack of intent to kill or inflict grievous bodily harm and the availability of an alternative finding of manslaughter by an unlawful and dangerous act.
(ii)The appellant had acted in reasonable self defence after the deceased had been the aggressor in the altercation between them, including punching and kicking by the deceased.
(iii)Provocation by words and conduct of the deceased, both on the occasion of the fatal altercation with the appellant and in meetings which had occurred since the separation of the appellant and his wife.
(iv)The appellant suffered substantial impairment by reason of an abnormality of mind based on an established medical condition, that is the fact of his severe depression and his paranoid personality disorder.
The only ground of appeal raised was:
“Ground 1 – The directions given on the issue of provocation were inadequate and erroneous in that the jury were not informed pursuant to s23(3)(a) of the Crimes Act 1900 that there is no rule of law that provocation is negatived if there was not a reasonable proportion between the act causing death and the conduct of the deceased that induced the act.”
Factual Background
The appellant married Maria Disano, the daughter of the deceased, in 1978. They had two daughters, Vanessa born in 1981, and Sarah born in 1986. During the course…

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 Disano v The Queen

Details

AGLC: Disano v The Queen [2006] NSWCCA 125
Case: [2006] NSWCCA 125
Decision Date: 18 May 2006

CaseChat Overview and Summary

The appeal was against a conviction of murder, heard in the Court of Criminal Appeal. The appellant, who had been convicted of murdering his father-in-law, argued that the jury had been misdirected on the issue of provocation. Specifically, the appellant contended that the trial judge had not correctly informed the jury that there is no rule of law negating provocation if there was no reasonable proportionality between the act causing death and the conduct of the deceased that induced the act, as required by s23(3)(a) of the Crimes Act 1900.

The legal issue before the court was whether the trial judge had failed to provide adequate directions to the jury regarding the concept of provocation, particularly in relation to the requirement of reasonable proportionality. The appellant claimed that the judge's omission was an error that necessitated a direction pursuant to s23(3)(a) of the Crimes Act. The court had to determine if the appellant's complaint about the trial judge's direction was valid, particularly in light of the fact that the issue of proportionality in the context of provocation was not explicitly raised at trial.

The court found that the trial judge had provided clear and accurate directions on both provocation and self-defence, with the jury receiving written and oral instructions that adequately distinguished between the two defences. The court emphasised that the trial judge's directions were correct and appropriate, and that the absence of a specific mention of proportionality in the context of provocation did not constitute an error. The court held that the appellant had not demonstrated that the trial judge's directions had caused a miscarriage of justice, and therefore, the issue could not be considered under rule 4 of the Criminal Appeal Rules. Consequently, the appeal was dismissed.

No further orders were made beyond the dismissal of the appeal.

Orders

Orders of the court

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Background

Background to the litigation

The only ground of appeal raised was:“Ground 1 – The directions given on the issue of provocation were inadequate and erroneous in that the jury were not informed pursuant to s23(3)(a) of the Crimes Act 1900 that there is no rule of law that provocation is negatived if there was not a reasonable proportion between the act causing death and the conduct of the deceased that induced the act.”Factual Background The appellant married Maria Disano, the daughter of the deceased, in 1978. They had two daughters, Vanessa born in 1981, and Sarah born in 1986. During the course of the marriage the appellant had temper outbursts, would throw goods and damage property. The appellant used to lose his temper very quickly. The marriage started to deteriorate after the birth of Sarah. On 28 July 2002 the appellant lost his temper over Sarah using the bathroom. In the course of that argument he threatened to throw his wife over the balcony of their Concord home. That night Mrs Disano and the daughters left the family home and thereafter resided with her parents, the deceased and his wife Nella. The appellant remained alone in the family home. From that date there was evidence that the appellant had become depressed. The contact between him and his family was very limited. There was, however, contact on a few occasions. One of those occasions was on 18 November 2002 when the appellant attended Sarah’s birthday celebration uninvited. The function occurred at the deceased’s home. Although the appellant behaved appropriately, there was clear tension between him and the deceased and it was obvious that the deceased was unhappy that the appellant had attended. A few weeks before his death, the deceased and his wife had visited the home of Nina and Carmelo Savoca. Nina Savoca was the appellant’s sister. The appellant was there when the deceased and his wife arrived. A verbal altercation occurred between the deceased and the appellant at those premises with the appellant apparently spitting on the deceased and accusing him and his wife of breaking up his marriage. The appellant had called Nella Basile a “bastard”. Another apparent source of discord between the deceased and the appellant was that the appellant believed that the house which the deceased had made available to him and his wife to live in when they were first married, should have been given to his wife in accordance with Sicilian tradition. On the morning of 2 January 2004 the appellant and the deceased were involved in a fight on a path near the Abbotsford Wharf, which resulted in the death of the deceased. The appellant was perhaps bigger in the shoulders than the deceased, but not much taller. There was a considerable age difference in that the appellant was 53, whilst the deceased was 70 years of age. On that morning the appellant was fishing at the wharf when the deceased came up to him and asked to speak to him. They walked off the wharf together to a nearby park. At the trial the appellant did not give evidence. His version of what thereafter occurred is contained in the ERISP, produced as a result of his interview with the police, and in the statement of his brother-in-law, Salvatore Gangi. There was video from a security camera located on the wharf which showed the deceased coming onto the wharf and speaking to the appellant at about 8.13am. It showed the deceased leaving the wharf with the appellant following him.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

The appellant relied upon that passage as supporting the proposition that his Honour should have given a direction to the jury in accordance with s23(3)(a) because “the circumstances of the case made it necessary”. Those circumstances were that the Crown in this case had suggested contrary to s23(3)(a) that provocation was negatived by lack of reasonable proportionality between the accused’s conduct and the deceased’s conduct and because self-defence, which did raise proportionality of response in a different context, was one of the matters which had been raised in the trial. These, it was submitted, were the very “circumstances” which Heydon JA had in mind in Szabo as would require such a direction to be given.Consideration The issue in this appeal, ie the absence of a direction by the trial judge as to proportionality of response on the issue of provocation, was not raised at trial. Leave is accordingly required before the issue can be raised in this Court (rule 4 of the Criminal Appeal Rules). As Hunt AJA reaffirmed in R v Wilson [2005] NSWCCA 20 the requirements of r4 are not “some mere technicality” to be “simply … brushed aside”. An obligation falls upon defence counsel at trial to assist the trial judge to give appropriate directions to the jury. Only if an identified error in the summing up has caused a miscarriage of justice, in respect of which the onus lies upon the appellant, will leave be granted under rule 4 (see also R v Villa [2005] NSWCCA 4 at [74] and Papakosmas v The Queen (1999) 196 CLR 297 at 319). As was properly conceded on behalf of the appellant, his Honour’s directions as to provocation were correct and appropriate. The appellant’s complaint is that the “circumstances of the case” required a further direction in terms of s23(3)(a) clarifying the question of reasonable proportionality in the context of the partial defence of provocation. The fact that self-defence and provocation were relied upon by the appellant at trial did not of itself require such a direction. Not only did his Honour provide clear and accurate oral directions in relation to each, he provided the jury with written directions which clearly set out the elements of each partial defence. The written and oral directions made clear the distinction between the two partial defences. Since the presence or absence of reasonable proportionality is not a separate element of provocation, there was no need for his Honour to specifically refer to it just because self-defence had been raised by the appellant. The “circumstances of the case” upon which the appellant really relied are the remarks of the Crown in a context where self-defence was also being relied upon. In order to assess whether this complaint has been made out, one needs to look at what in fact was said by the Crown, not only in the context of self-defence having been raised by the appellant, but in the overall context of the trial. The first passage relied upon by the appellant (para [25]) does not convey the meaning sought to be placed on it. It is at most an introductory remark by the Crown seeking to summarise in an anticipatory way the directions to be given by his Honour. It contains within it its own disclaimer in that it stresses the paramount position of his Honour in giving such directions.