R v Carbone - [2021] NSWSC 1552

Supreme Court

New South Wales

Medium Neutral Citation: R v Carbone [2021] NSWSC 1552
Hearing dates: 12, 13, 14, 15 October 2021
18, 19, 21 October 2021
Date of orders: 10 December 2021
Decision date: 10 December 2021
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
See [323]

Catchwords:
CRIME – murder – trial by judge alone – wholly circumstantial case – whether there was an existence of joint criminal enterprise – dispute over outstanding debt to the deceased’s sister – deceased stabbed and shot several times in an underground carpark– whether accused went to the carpark on the basis of an agreement with his co-actor to intentionally inflict at least grievous bodily harm upon the deceased – Crown has proven beyond a reasonable doubt that there is no other rational inference available – verdict of guilty

Legislation Cited:
Criminal Procedure Act 1986
Crimes Act 1900
Evidence Act 1995

Cases Cited:
Carbone v R [2020] NSWCCA 318

Texts Cited:
Not Applicable

Category: Principal judgment
Parties: The Crown
Diego Carbone (Accused)
Representation:
Counsel:
M England / E Curran (Crown)
M Tedeschi QC (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Goold Law (Accused)

File Number(s): 2014/255002
Publication restriction: Non-publication order made 19 October 2021.

Judgment

Diego Carbone (“the Accused”) was arraigned before me on Tuesday, 12 October 2021, on an Indictment dated 16 September 2021.
The Accused was charged with the murder of Bradley Dillon (“the Deceased”) on 11 August 2014, at Leichhardt in the State of NSW. To this charge he pleaded not guilty.
On that day, at the request of the Accused and with the consent of the Crown, I made an order pursuant to s 132(1) of the Criminal Procedure Act 1986 that the Accused was be tried before a Judge alone and without a jury.
At the request of the Accused, and without opposition from the Crown, the Accused attended and was present at the trial by audiovisual link (“AVL”) from the correctional facility where he is being held in custody.

History

The Accused was arrested on 29 August 2014 and remanded in custody. He was later granted bail.
He first stood trial before Matthews AJ and a jury in 2017. On 12 October 2017, the jury returned a verdict of guilty of murder. The Accused sought leave to appeal to the Court of Criminal Appeal. On 15 December 2020, the Court of Criminal Appeal granted leave to appeal against his conviction, upheld the appeal and quashed the conviction for murder consequent upon the jury’s verdict on 12 October 2017: Carbone v R [2020] NSWCCA 318.
Accordingly, this is the second trial of the Crown’s case against the Accused.
These matters are recorded not because they have any effect on any of the matters which I have to consider but, rather, because they explain in part the extensive delay between when the Accused was arrested and this trial.
As well from time to time in the course of the evidence in this trial, reference was made to the first trial before Matthews AJ and a jury, and to evidence which was given at that time.
The fact that the Accused has already stood his trial, been convicted, had his conviction quashed, and is here standing a second trial, are matters which give rise to no adverse inference against him at all.

Crown Case – An Overview

The Deceased died as a result of gunshot and stab wounds. He was stabbed at least four times and was also shot three times with a 9mm Glock pistol.
The attack took place, and the wounds were inflicted, in an underground carpark (“the Underground Carpark”) located on the south-eastern corner of a large commercial block in Leichhardt where the Leichhardt Market Town (now known as MarketPlace Leichhardt) shopping centre (“MarketPlace Leichhardt”) is also located.
Having been wounded, Mr Dillon made his way out of the Underground Carpark and to the nearby footpath where he collapsed and died.
The Crown’s case is that the Accused and his first cousin, Tony Bagnato, were both in the carpark together and one or both of them inflicted the gunshot and knife wounds. The Crown’s case is that after inflicting the wounds, they ran out of the Underground Carpark in a southerly direction up George Street, got into their motor vehicle in Treadgold Street and drove off down to and then along Parramatta Road.
The Crown’s case is that the Accused and Mr Bagnato lured the Deceased to the Underground Carpark and ambushed him there with the intention to inflict, at least, grievous bodily harm, and that the Deceased was stabbed and shot by either or both participants in a joint criminal enterprise. The Crown’s case does not require a finding as to who stabbed or who shot the Deceased, rather the Crown’s case was that the Accused and Tony Bagnato entered into, and participated in, an agreement to at least cause grievous bodily harm to the Deceased regardless of who ultimately inflicted the injuries.
The second and alternative way in which the Crown put its case was that the Accused was a party to, and participated in, an agreement to assault the Deceased, during which assault Tony Bagnato committed the murder, in circumstances where the Accused foresaw the possibility of the intentional infliction of grievous bodily harm or death during the course of the assault.
Because no-one was physically present who observed the circumstances in which the Deceased was shot and stabbed, the Crown’s case is a circumstantial one, namely that the existence of the agreement, and the participation of the Accused in it, could be inferred from all of the facts and circumstances surrounding the commission of the offence.

Case for the Accused – Overview

The Accused did not dispute that he had been present in the Underground Carpark at or about the time that the gunshot and stab wounds were inflicted on the Deceased. He accepted that he was one of the men seen leaving the general area outside the Underground Carpark and moving south up George Street shortly after the shooting and that he was, at that time, wearing a green top with a distinctive white number “7” on the back.
The defence case is that, at its highest, the Crown’s case could only prove that whilst he was in the Underground Carpark, he engaged in a physical fight with the Deceased for a reason or reasons unknown, and that unexpectedly without his prior knowledge, notice or agreement, Tony Bagnato shot and killed the Deceased.
The Accused denied that there had been any joint criminal enterprise of any kind between himself and Tony Bagnato to kill, cause grievous bodily harm to, or physically assault the Deceased and submitted that the evidence could not establish that this was so.

Directions of Law

It is necessary, in a judge alone trial, for the judge to set out the directions of law which are applicable, and which bind the judge in coming to any decision. All of the following directions of law are to be applied, and will be applied, throughout this judgment.
These are the directions of law which are applicable, and it will be necessary in due course after an analysis of the facts, to identify the elements of the offence charged.

Overall Duty and Responsibility

It is the Court's duty and responsibility to consider whether the Accused is guilty or not guilty of the charge of murder and to return a verdict according to the evidence which has been admitted in the trial.

Any Obligation to Apply the Law

I am bound to apply the principles of law contained in these directions to the facts of the case as I find them to be.

Impartiality

In considering my verdict, I must act impartially and dispassionately. I must not let emotion sway my judgment. Neither prejudice nor sympathy has any role to play in the determination of the charge on the Indictment. My task must be undertaken free of prejudice or sympathy.

Burden of Proof

The burden of proof of the guilt of the Accused wholly rests on the Crown. That onus rests upon the Crown in respect of each element of the charge on the Indictment. The Crown must prove the guilt of the Accused and prove it beyond reasonable doubt.
There is no onus of proof on the Accused. He is presumed to be innocent unless and until the Crown proves that he is guilty beyond reasonable doubt. The Accused has tendered evidence, namely admissions made by him pursuant to s 184 of the Evidence Act 1995. He has also made submissions via his senior counsel. By so doing, the Accused does not assume any onus of proof. The onus remains on the Crown throughout the trial. The fact that some or all of the evidence put before the Court by the Accused may not be accepted does not affect the Crown’s onus of proof, and it does not relieve the Crown from proving the guilt of the Accused beyond reasonable doubt.

Evidence of Witnesses

I must consider and assess the evidence given by the various witnesses and decide whether they are telling the truth, whether the evidence is reliable, and whether I accept their evidence. My ultimate decision as to what evidence I accept, and what evidence I reject, may be based on a range of matters including the content and the context of what a witness had to say, the manner in which the witness said it and the general impression which any witness made upon me in giving evidence.
In considering whether to accept the evidence of a witness, I am not obliged to accept the whole of the evidence of any one witness. I may, if I think fit, accept part, and reject part, of the evidence of the same witness. In other words, the fact that I do not accept a portion of the evidence of a witness does not mean that I must necessarily reject to the whole of that witness’ evidence. I can accept part of the evidence of a witness if I think it is worthy of acceptance.

Silence of the Accused

After he was arrested, the Accused was invited by police officers to participate in a recorded interview. He declined to participate in that interview and declined to say anything at all about the events leading to his arrest. In so doing, the Accused was exercising his right to silence – which he has in common with all people in his position.
The silence of the Accused cannot be used against him in any way at all. That is because the Accused was simply acting in accordance with his right to silence in respect of which he had received legal advice from a solicitor.
The Accused has not, in the course of this trial, given any explanation himself in response to the Crown’s case by giving evidence from the witness box. Although an accused may give evidence in relation to the whole or any part of the Crown’s case, an accused may equally elect to give no such explanation. There is no obligation on an accused to give evidence in a trial. An accused is entitled to say nothing and make the Crown prove his guilt.
The silence in Court of the Accused cannot be used against him. The election of the Accused not to offer an explanation for the whole or any part of the Crown’s case by giving evidence himself, does not constitute any form of admission by the Accused and no such inference can be drawn. Nor must an election by the Accused not to give evidence be used to fill in any gaps in the evidence tendered by the Crown. It must not be used in any way in assessing whether the Crown has proved its case beyond reasonable doubt. In particular, I must not speculate about what might have been said in evidence if the Accused had himself given evidence.

Expert Evidence

An expert witness is a person who has specialised knowledge based on their training, study or experience. Because they have such knowledge, they may express an opinion on relevant matters that fall within their expertise.
To the extent that there is any conflict within the evidence of an expert, or else between experts, it is for me to decide which part or parts of the evidence of the experts I accept, and which part or parts I reject. I must remember that any expert evidence relates only to part of the case and that whilst it may be of assistance to me in reaching a verdict, I must reach my verdict having considered all of the evidence which is applicable.
If, having given the matter careful consideration, I do not accept the evidence of any of the experts, then I do not have to act upon the evidence of the expert in question. I do not have to accept even the unchallenged evidence of an expert.

Consciousness of Guilt

The Crown relies upon certain features of the conduct of the Accused as evidencing a consciousness of guilt of the charge of murder. These include running from the scene where the Deceased was killed and not stopping to render him assistance; attempting on 14 August 2014 to purchase an air ticket to leave Sydney and go to Queensland; and finally by attempting to flee Australia and go to Thailand a few days before, and then again on the day of his arrest.
If I am satisfied, as a matter of fact, of any or all of these matters, then I direct myself as follows:

the conduct does not its own and without more, prove the guilt of the Accused of the charge on the Indictment;

I must be satisfied that the conduct related to, or was connected with, the offence with which the Accused is charged;

I must be satisfied that the Accused thought that unless he did what is alleged, he would be caught and charged with, or else be implicated in, the offence, and not for some other legitimate or explicable reason.

If I am satisfied of each of these matters, then I can consider these circumstances and my conclusion about them, and take them into account with all of the other facts and circumstances relied upon by the Crown to prove the guilt of the Accused beyond reasonable doubt.

Circumstantial Case

The Crown case against the Accused is a circumstantial one. Because of this, I cannot return a verdict of guilty upon the charge unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the Accused. To enable me to be satisfied beyond reasonable doubt of the guilt of the Accused on the charge, it is necessary that the Crown persuade me that the guilt of the Accused is a rational inference, and that it is the only rational inference that the circumstances would enable me to draw.
This means that the Crown must exclude all reasonable hypotheses consistent with the innocence of the Accused. For a hypothesis to be a reasonable and rational one, it must rest upon something more than mere conjecture or supposition. A bare possibility of innocence does not prevent a conclusion that the Accused is guilty of the offence, so long as the inference of guilt is the only inference open to a reasonable person upon a consideration of all of the facts and evidence.
In deciding whether there is a hypothesis reasonably open on the evidence in the Crown’s case that is consistent with the Accused’s innocence, all of the circumstances established by the evidence are to be considered and weighed. The evidence is not to be looked at in a piecemeal fashion but is to be considered as a whole.
I remind myself that in a circumstantial case, each fact can inform an understanding of the significance of other facts. Therefore, it is the understanding of the combined significance of all of the facts which informs the issue of whether the Crown has proved the guilt of the Accused beyond reasonable doubt in respect of the offence charged.

Witnesses not called by the Crown

The Crown submitted that in light of the fact that it did not call the following witnesses – Tony, Giovanni and Immaculata Carbone, Shaleen Gray, Carmelo Ruggiero, Jackson Grounds and Tom Sayer – I should give myself a “Mahmood direction”. I do so now. With respect to these witnesses who were not called by the Crown to give evidence, I must not guess what any of them would have said if they had been called. However, I am entitled to take into account that there was no evidence from any of these witnesses when deciding whether or not I have a reasonable doubt about the guilt of the Accused.

The General Area – a Description

The large block in Leichhardt which consists of a shopping centre (the MarketPlace Leichhardt) and other surrounding shops and businesses is essentially square in shape. To the north of the block is Marion Street, which runs in a generally east-west direction; to the west of the block is Foster Street, which runs essentially in a north-south direction; to the south of the block is Lords Road, which runs essentially parallel to Marion Street in an east-west direction; and, finally, the block is bounded by Flood Street, which is essentially parallel to Foster Street and runs in a north-south direction.
On the south-eastern corner of the block, where Lords Road and Flood Street intersect, there were (in 2014) a number of shops and commercial premises – one was the TAB – which faced onto Flood Street; another was an occupational therapy practice which faced onto Lords Road. The shops at the south-eastern corner of the block were not a part of MarketPlace Leichhardt but were separate premises.
Beneath those shops was the Underground Carpark, which had three entrances, two of which could only be used by pedestrians. The first was a set of stairs which gave access from Flood Street (to the north of where the TAB was located) directly into the north-eastern corner of the Underground Carpark; the second access was a set of stairs going from Lords Road down into the Underground Carpark about midway along the southern side of it; the third point of access was a driveway which was located in Lords Road and which allowed access down a ramp into the Underground Carpark. The driveway was immediately adjacent to another underground carpark which was part of MarketPlace Leichhardt. The MarketPlace Carpark and the Underground Carpark were at different levels. Access between them was not possible because of a metal fence with uprights which stretched along the western boundary of the Underground Carpark (or the eastern boundary of the MarketPlace Leichhardt carpark) where they were adjacent.
The Underground Carpark was partially open but mostly underground. To the extent that it was underground, there was no direct view into it from either Lords Road or Flood Street. There were no CCTV cameras located in it.
To the south of Lords Road, approximately opposite where the Underground Carpark ramp entered Lords Road, was George Street. The intersection between George Street and Lords Road was closed off by a footpath, nature strip and some vegetation, so that there was no vehicular access from Lords Road to George Street which ran essentially north-south. To the south of George Street, at the crest of a modest rise (or small hill) was an intersection with Treadgold Street, which ran essentially east-west. As it connected into George Street, it ran south down to Parramatta Road in Leichhardt.
Within MarketPlace Leichhardt in 2014, was a seafood shop called “Johnnies Seafood Store” which was owned by the family of the Accused. The Accused worked there from time to time, as did his brother, Tony Carbone. The seafood store consisted of a retail area behind which was located an area closed to the public which was used for the preparation of fish and for storage. A door at the rear of the seafood shop opened into a loading dock “Loading Dock 7”. Loading Dock 7 could be accessed by other businesses as well.
Leading from Loading Dock 7 was Foster Lane which ran in a westerly direction down the hill to Foster Street. In so doing, it passed Loading Dock 6. There was also access to another loading dock used by one of the large retail stores in MarketPlace Leichhardt, which permitted ingress and egress via a “U” shaped access road to and from Lords Road. This was described in the trial as the “Woolworths loading ramp”.
Scattered through the MarketPlace Leichhardt area, on houses and businesses in the vicinity, were many CCTV cameras. Footage was recovered by investigating police from many of those cameras. However, as earlier mentioned, there was no CCTV footage in the Underground Carpark, there was no CCTV footage from any of the commercial premises above the carpark in Lords Road and there was no CCTV footage covering Flood Street which would have permitted a view of the staircase which gave access from Flood Street to the Underground Carpark.

Because the Underground Carpark was in an area, in contrast to the rest of MarketPlace Leichhardt and surrounding environs, which had either limited or no CCTV coverage, the central events were not captured on CCTV.
Lords Road was used by buses. There was a bus waiting area to the west of the access ramp to the Underground Carpark and a bus stop to the east of it. CCTV footage was recovered from a bus which pulled up at a time when the Deceased was on the nature strip adjacent to the footpath on Lords Road.

Involved Individuals

It is convenient here, at the start of these reasons, to identify a number of individuals who were central to the events surrounding the death of the Deceased. It is a convenient time to provide a general description of those individuals and their activities where relevant.

Bradley Dillon – the Deceased

Bradley Dillon (the Deceased) attended high school at Holy Cross College (“Holy Cross”) in Ryde. When he was around 15 years old, he met his partner, Ms Nadine Dillon. In due course they formed a domestic relationship and had two children.
The deceased part-owned and ran a café in Mullens Street, Balmain, as well as owning some horses.
There was no evidence that the Deceased was a member of the St Michaels Fight (“the Fight Club”), however he had met a number of people or else was known to some of those people who were members of the Fight Club by reason of his attendance at Holy Cross. Aidan, Nadine’s brother, was friends with the Accused because they were fellow students together at Holy Cross.
The Deceased and his half-sister, Ms Cassie Dillon, had a mostly strong relationship and, by around Christmas of that year, Ms Dillon and the Deceased had started having more contact. The Deceased was described as being somewhat of a father figure to his sisters and was known to be very protective of them.

Antonio Bagnato

Antonio Bagnato (usually referred to as Tony Bagnato) attended Holy Cross and whilst there had hung out with the Deceased and formed a friendship whilst at school. Over the years, this friendship became distant but the evidence did not suggest any dispute or tension between the two of them leading up to the events of 11 August 2014. Instead, as becomes apparent throughout this judgment, the Deceased saw Tony Bagnato as someone he could trust to help settle his issues with Adrian Riccio.
Tony Bagnato was part of the inner circle of the Fight Club. He was close with the owner and creator of it, Albert Difloriano (often called Albi or Non) and was often seen having private conversations with him. Tony Bagnato was seen as the enforcer or “pit bull” of the Fight Club. He was described as being “the guy” people would be directed to go to if there were ever any issues. People were directed to him for assistance with respect to personal issues.
Tony Bagnato is the first cousin of, and close to, the Accused. He was an influential figure in the life of the Accused.

Adrian Riccio

Adrian Riccio (also known by the name “Ted”) was in a relationship with the Deceased’s half-sister, Ms Cassie Dillon. Mr Riccio told Ms Dillon that he was involved with the Fight Club. Mr Riccio did not give evidence. Some evidence was given about him by Kale Turner. I draw on that and other evidence to describe Mr Riccio in the following way.
Mr Riccio was, I am satisfied, a member of the Fight Club. He was a regular drug user. He told many lies to his partner, Ms Cassie Dillon. He was accustomed to using many different mobile telephones for his personal communications – up to 12 had been used. He regularly changed his numbers. Whilst using mobile phones to send text messages, he often pretended to be a third party, such as a friend. He was known also to be a volatile person. He was a small‑time drug dealer carrying out drug runs at the behest of Albi and Tony Bagnato, to sell drugs, mainly cocaine and occasionally MDMA. Sales were made through the medium of a mobile phone provided to him.
Mr Riccio was unco-operative with police during their investigation and did not give evidence during this trial.
Mr Riccio seems to have been well-liked amongst, and supported by, the members of the Fight Club notwithstanding the features of his personality and his personal life to which I have just referred. A good indication of this was when he was sharing accommodation with Ryan Tucker who was then also a member of the Fight Club. A dispute arose between Mr Tucker and Mr Riccio over one or other of their respective girlfriends. Mr Tucker and Mr Riccio fell out. A number of members of the Fight Club supported Mr Riccio and took his side with the consequence that Mr Tucker felt singled out, unsupported and left with no alternative but to leave the Fight Club.
From Mr Tucker’s evidence, which connected this falling out as having occurred shortly before receiving a particular phone call from the Deceased who was attempting to contact Mr Riccio, I am satisfied that this falling out, and the support to Mr Riccio by Fight Club members, occurred within the weeks leading up to 11 August 2014.
Mr Boyd, who was also a member of the Fight Club, gave evidence, which I accept, that Mr Riccio was associated with Tony Bagnato through the Fight Club, and inferentially, the activities in which he was engaged there.

Kale Turner

The Accused was known to Kale Turner, usually by the nickname “Beaver”. As the facts later recounted show, the Accused, on 13 August 2014, which was a couple of nights after the Deceased was killed, visited Mr Turner at his Waterloo apartment. The conversation which took place there was an important feature of the submissions of senior counsel for the Accused.
The evidence of Mr Turner consisted of a redacted statement given to officers of the NSW Crime Commission as an induced statement on 25 May 2015 – i.e. about nine months after Mr Dillon was killed. Mr Turner did not give evidence orally and was not the subject of cross-examination. At the time of the trial, he was believed to be in North America, having left Australia in 2017 on the eve of the first trial, seemingly to avoid giving evidence.
In his statement, Mr Turner provided a personal history that included spending time in jail in Queensland, being a regular user (from about 2008) of a variety of drugs including ice, although that drug use had tapered off by 2015, and participating in the selling of drugs at the request of Tony Bagnato as part of his association with the Fight Club.
It is necessary to keep all these matters in mind when assessing the accuracy and weight to be given to Mr Turner’s evidence.

Diego Carbone – the Accused

At the time of the killing of the Deceased, the Accused was 23 years old. He went to school at Holy Cross and knew the Deceased from school. The accused was employed at his family business Johnnies Seafood. The shop was located in Leichhardt MarketPlace.
The Accused was a member of the Fight Club and, at the time of his arrest, he had a large tattoo depicting St Michael on his back which was, I am satisfied, the Fight Club’s emblem. At the time of the offence, he was not a member of the Fight Club as he had been “kicked out”. The Accused, despite being known as a hot-head, would listen to Tony Bagnato who acted towards him a bit like a boss. They were close companions; Mr Bagnato was the leader and the Accused was the follower.
The evidence does not reveal that the Accused had a mobile phone registered in his own name. Rather, he seems consistently to have used a mobile phone registered in the name of his brother, Tony.

St Michaels Fight Club

As has been established, the accused and Mr Bagnato were, or had been at some point in time prior to 11 August 2014, members of the Fight Club. It is necessary to have a brief summary of the evidence provided on the Fight Club to provide context for the motive upon which the Crown relies.
The Fight Club was an organisation that had a clear hierarchy. There was an ‘inner circle’ which consisted of the older, more senior members. Albi was described as Tony Bagnato’s mentor. Tony Bagnato and Albi appeared to be in some form of partnership and would often have private chats away from any of the other members.
The Fight Club operated on an exclusive membership basis, with weekly membership rates being $30 or $40. The Fight Club was a place where members could use the gym’s facilities (such as weights) to train or could be trained by professional trainers for an additional fee. It was compulsory for all members to train on Wednesday nights.
About once a month, there would be a gym gathering which would be either a party/gathering or a ‘fight night’. The fight nights would involve members attending a Muay Thai fight event at other gyms in and around Sydney. If the monthly gathering was a party, the members would bring a bottle of alcohol and drugs would be readily available.
According to Kale Turner, it became evident to him that Tony Bagnato and Albi had a drug run in place. Certain members would be provided with pre-paid mobile phones and would respond to all messages and calls relating to drug deals. The main drug being dealt was cocaine and small amount of MDMA and would mainly occur in the inner suburbs and CBD of Sydney.

Death of Bradley Dillon – Contemporaneous Events

It is necessary to make findings of fact about the events of 11 August 2014, which is the day upon which the deceased was killed. These findings of fact are made on the balance of probabilities. None of them are said to be a relevant “intermediate fact”. None of them were said by either the prosecution or the defence to require proof beyond reasonable doubt.
The Accused and Tony Bagnato were in each other’s company a little after 11.15am on the morning of 11 August 2014, when they were filmed walking towards Tony Bagnato’s car (a blue Holden Astra) in the carpark of the apartment block in which he lived in Illawarra Road, Marrickville. As the Holden Astra left the carpark, an orange Hi-Viz vest (or similar piece of clothing) can be readily seen resting on the car’s dashboard on the driver’s side.
It is not clear how long they spent in each other’s company that morning because Tony Bagnato was next filmed driving alone back into the carpark of the apartment block where he lived in Marrickville at about 2.50pm.
Tony Bagnato left the building again at about 3.15pm and returned at about 3.45pm. It appears that he was by himself at that time.
During the course of the afternoon (somewhere in the vicinity of, but, I am satisfied, before 3.30pm) the Deceased and his friend, Mr Powell, were engaged in obtaining and fitting a battery to a light metallic blue coloured Nissan Skyline which had the registration number BAK 00F. Whilst this was happening, Mr Powell saw the Deceased having a conversation with a person wearing a green t-shirt with the word “Jets” on it. It is accepted that this person was the Accused.
Mr Powell was unable to hear any of the conversation between them, but he did not notice the demeanour of the Deceased change at all before or after the conversation with the Accused. The Deceased did not appear to be angry, scared or anything of that kind.
The meeting took place at an auto-repair shop in Tebbutt Street, Leichhardt. Once the conversation was finished, and the replacement of the Nissan Skyline’s battery had been finished, the Deceased drove off in the Nissan Skyline along Tebbutt Street and turned left into Parramatta Road.
The evidence does not disclose how that meeting between the Accused and the Deceased came about. There is no material indicating that either of them had made arrangements for that meeting or else that it was a matter of mere chance. It is entirely possible that it was a chance meeting, but the evidence does not permit me to draw a conclusion to that effect.
In a statement given to the police eight days after the incident, Mr Powell placed the meeting as having occurred at some time after 3.30pm because it was at that time that Mr Powell was picked up at his home by the Deceased and driven to the auto-repair shop in Tebbutt Street, Leichhardt.
By reference to all of the other facts which occurred that afternoon, I do not accept that Mr Powell was correct when he gave that estimate of time to the police. In my view, as I have earlier said, this meeting took place prior to 3.30pm.
The principal reason that I am satisfied that the meeting took place before 3.30pm, is that in the period between 3.34 and 3.40pm the Accused called Tony Bagnato’s mobile on three occasions and sent him a text message.
The first two calls were made at 3.34pm and 3.40pm. They were short voice calls – one of 13 seconds and one of 7 seconds. I am satisfied that the Accused telephoned Tony Bagnato who did not answer the telephone. Shortly after the second of those calls, the Accused sent Tony Bagnato an SMS, the content of which is not contained in the evidence. Finally, after that SMS was sent, at 3.40pm, a further 20 second voice call was made by the Accused to Tony Bagnato. Again, the contents of this voice call is unknown but, having regard to the length of it, and the fact that Tony Bagnato was driving his motor vehicle at the time, I would infer that a voicemail message was left.
I am satisfied that Tony Bagnato was driving his Holden Astra at the time because a few minutes later at 3.45pm he was filmed by CCTV entering the carpark of the apartments at Marrickville where he lived.
The Accused went from the auto-repair shop in Tebbutt Street, Leichhardt back to Johnnies Seafood Shop at MarketPlace Leichhardt. Although the precise distance is not in evidence, it is in the order of 600-700m, which would mean that someone such as the Accused could travel that distance in 10 minutes or so at a comfortable walking pace.
Just before 4.04pm, the Accused, who was wearing a green top with short sleeves, a pair of dark shorts and white jogging shoes, left the rear access to Johnnies Seaford Shop, and left the MarketPlace area through Loading Dock 7. CCTV footage shows that the green top has white writing on the front of it and prominent large number “7” in which on the back. The Accused is seen moving at a jogging pace, initially down Foster Lane in a westerly direction. He then turned south at the first available opportunity which was a lane which eventually runs into Foster Street.
Just over 10 minutes later – at 4.16pm – the Accused is seen walking along Flood Street in a northerly direction across the pedestrian crossing at the intersection of Lords Road and Flood Street.
The period of 12 minutes or so in which the Accused has been out of sight of any CCTV cameras (and a period during which there is no evidence as to where he was) is sufficient in my view, having regard to what I observed during the view, for the Accused to have inspected the area generally to see what, if any, traffic there was at the time including cars parked on the street, and whether there were any cars parked in the Underground Carpark. There was sufficient time for him to have then proceeded south along George Street, turning left into and along Treadgold Street and then, finally, north along Flood Street. This route would, I am satisfied, have been able to be completed by the Accused in the time between when he was seen on CCTV footage leaving Loading Dock 7 and when he returned to Johnnies Seafood. This period of time would also have enabled him to establish the state of the traffic and car parking in the region of Treadgold and George Streets which is where the Holden Astra was ultimately parked and in which the getaway of the Accused and Tony Bagnato was made after the Deceased was killed.
The Accused, having crossed over the intersection of Lords Road and Flood Street, then proceeded back into the Leichhardt MarketPlace and to Johnnies Seafood Shop by taking the quickest and most direct path along the driveway in front of the BWS shop where he was captured on CCTV footage and then through an internal passageway into the shopping centre to then walk up the stairs immediately adjacent to Johnnies Seafood.
At 4.17.41pm, being the time, adjusted by the police (which I do not accept as being entirely accurate), the CCTV showed the Accused at the top of the stairs immediately adjacent to Johnnies Seafood Shop. He leaves the camera’s view at 4.17.42pm and within no more than one or two seconds, would have entered Johnnies Seafood Shop.
According to phone records (which I accept as accurate) at 4.17.36pm a telephone call was initiated from Tony Bagnato’s mobile phone, which was in the Marrickville area, to the mobile phone registered to Tony Carbone (the brother of the Accused) which was the phone which the Accused had used earlier that afternoon to contact Tony Bagnato. The call lasted 87 seconds and was a voice call.
Although it is clear from the CCTV footage at or about that time that whilst ever the Accused is in view he does not answer a call or use a mobile telephone, that does not mean that he did not answer the call just referred to or else participate in it. There are a number of reasons why it may be that whilst the Accused was filmed by the CCTV, he did not answer the phone. The first is that although the call was initiated at the time recorded, it took some seconds before it was received on the mobile phone used by the Accused – by which time he had passed out of view of the CCTV camera – or, alternatively, although his mobile phone was ringing, he did not answer it until he entered Johnnies Seafood Shop, or perhaps he had left the mobile phone in the seafood shop and the call was answered either when he returned to the shop (it having rung for a short period) or, alternatively, someone in the shop answered it and handed the phone to the Accused.
Whichever of these alternatives is correct, and it does not matter which one, I am satisfied that the Accused engaged in, and spoke to Tony Bagnato during that phone call. That is because the Accused had been using that phone earlier in the afternoon to contact Tony Bagnato and it seems likely from Tony Bagnato’s point of view that if he wished to contact the Accused that would have been the phone number which he called. Secondly, the evidence does not contain any reason why Tony Bagnato on that day would have sought to telephone the Accused’s brother, Tony Carbone, who was the registered owner of the mobile phone. Thirdly, from the events which followed, I am satisfied that the conversation which lasted longer than most others on that day, included a report back by the Accused to Tony Bagnato as to the results of his excursion which he had just completed, and also as to when and where he would be picked up by Tony Bagnato.
A short time later, a little over five minutes, Tony Bagnato is seen on CCTV footage getting out of a lift in the apartment block at Marrickville where he lives and walking to his car. His appearance is different from when he was last seen earlier on CCTV walking from his car to the lift to his apartment. Instead of wearing a sleeveless vest, and a long-sleeved top with a baseball-style cap, on this occasion he is wearing a hooded top and a cap underneath the hood which had been raised, thereby concealing his face. He is carrying a blue shoulder bag and can be seen alighting from the lift with what appears to be a bulging item in the left pocket of his loose-fitting trousers which appear to be similar to tracksuit pants.
At 4.23pm, he backed his car out of the car parking space and drove out of the carpark at 4.24pm. What is of significance is that a few seconds before exiting the carpark, a phone service registered in the false name of Ronald Hornyak, 0416 472 186 (“the burner phone”) is turned on for the first time and commences receiving and sending data thereby connecting to the network. The receiving or sending of data is indicative of a phone being turned on and connecting to the network.

The burner phone which was subscribed in a false name chosen by the assistant in the shop which sold it, had no traceable connection to Tony Bagnato or the Accused.
After leaving the carpark at Marrickville, Tony Bagnato drove his car towards Leichhardt, arriving in the vicinity of MarketPlace Leichhardt at about 4.48pm. At that time, he was seen travelling west along Marion Street towards Foster Street and was heading to the Loading Dock 7 at the rear of Johnnies Seafood. He arrived there at about 4.51pm and the Accused, wearing a green top with a white number “7” on the back, is seen to walk from behind a parked van to the Holden Astra and get into the passenger seat.
The Accused had been in the vicinity of the loading dock since about 4.42pm. He was filmed on CCTV, having emerged from the back of Johnnies Seafood Shop, walking generally in a westerly direction towards Fosters Lane. The Accused then goes out of camera view and is next filmed returning to Loading Dock 7 at about 4.51pm. The evidence does not reveal what the Accused did in this nine-minute period. There is no CCTV footage from Loading Dock 6 which suggests that he did not move past that area. However, I am unable to reach a firm conclusion in the absence of further evidence.
The Holden Astra, having collected the Accused, left Loading Dock 7 and travelled down Foster Lane to the intersection with Foster Street of Lords Road, where it indicated and turned left. At that time the Holden Astra was being driven by Tony Bagnato with the Accused in the front passenger seat. Three minutes after the car turned into Foster Street, the burner phone telephoned the Deceased’s iPhone on three occasions over a four-minute period. The connection was for a very short period of time. The Holden Astra was then observed on various CCTV footage to be driving in the general vicinity of MarketPlace Leichhardt.
At 5.06pm, the Deceased made a telephone call from his iPhone to the burner phone. It lasted 58 seconds. At the time that phone call was received, Tony Bagnato and the Accused were in the Holden Astra and it was being driven around, I am satisfied, in the general area of Leichhardt. At about 5.10pm, the Nissan Skyline being driven by the Deceased was seen in the general vicinity of the MarketPlace Leichhardt. It then turned from Marion Street into Flood Street and proceeded in a southerly direction along Flood Street. It was next observed to be parked facing south on Flood Street opposite the TAB.
The Deceased made a phone call to the burner phone at 5.15pm which lasted 2 seconds. I am satisfied that at the time that phone call occurred, the Deceased had parked his Nissan Skyline vehicle opposite the TAB and had rung the burner phone to indicate that fact to Tony Bagnato and the Accused. Shortly prior to that happening, Tony Bagnato’s Holden Astra, with the Accused in the front passenger seat, turned from Marion Street onto Flood Street and drove in a southerly direction. This meant that it drove past where the Deceased’s car was ultimately parked, and on towards Treadgold Street where, I am satisfied, the Holden Astra was parked. The location was deliberately chosen so as to permit a quick get away from the area.
Having made the phone call to the burner phone, the Deceased, alighted from his motor vehicle and walked towards the front entrance of the TAB near the corner of Flood and Lord Streets. He was wearing grey tracksuit pants, a red, white and blue striped jumper, and sneakers. From the CCTV footage, he appears to be carrying his car keys and an item which appears to be the Blackberry, which was later recovered from his body.
For the next nine minutes or so, the Deceased is seen in and around the TAB. He is clearly waiting for someone to arrive for a meeting. From time to time he stands at the door of the TAB and looks to his right and left along Flood Street. From time to time he crosses the road to his motor vehicle – apparently to check a mobile phone which is in the vehicle. There is nothing about his appearance or his dress which would indicate that he was carrying any kind of weapon.
At about 5.18pm, the burner phone rang the Deceased’s iPhone for six seconds. At that time, the Deceased was still inside the TAB. He was not seen to receive a phone call. That is, I am satisfied, because his iPhone was in his motor vehicle. At 5.20pm, an SMS was sent from the burner phone to the Deceased with the message “carpark under TAB”.
The Deceased crossed to his motor vehicle at about 5.25pm. At 5.25pm, the Deceased’s iPhone rang the burner phone and a call took place which lasted 29 seconds.
The Deceased is not seen on CCTV footage again. At and around this time there is no CCTV footage of the Holden Astra vehicle in which Tony Bagnato and the Accused were travelling. I am satisfied that this is because it was already parked in Treadgold Street and that the burner phone was probably being used whilst the Accused and Tony Bagnato were sitting in the car.
It is not clear at what stage, or time, the Deceased went into the Underground Carpark. He certainly did so. Probably, having regard to where his car was parked and where the entrance of the TAB was, he did so using the stairs from Flood Street down into the Underground Carpark.
Neither Tony Bagnato nor the Accused were seen entering the Underground Carpark, although they certainly did so and on foot.
On that afternoon and obviously prior to the Deceased meeting the Accused and Tony Bagnato, Mr Gallagher, a close friend of the Deceased, received a text message from the Deceased on a Blackberry device. The substance of that message was that the Deceased had seen the Accused and had given the Accused his telephone number so that Mr Bagnato could call him. The timing of the receipt of that message is unclear. Initially, Mr Gallagher said that it was “just prior” to his receipt of another text message on his phone which was received at 5.11pm. Initially, in cross-examination, Mr Gallagher said that it was “not long before 5.11pm”. When asked if it was perhaps an hour or two hours earlier, he responded:

“I don’t know. It wasn’t two hours earlier. It would have been in the same vicinity of, say, half an hour I would assume. Somewhere around that vicinity. But it could have been sitting on my Blackberry for – you know, for 20 minutes before I seen it.”

It is probably unnecessary to determine the precise time at which that Blackberry message was received. Mr Gallagher’s evidence does, however, demonstrate that the meeting between the Deceased and the Accused at the auto-repair shop, resulted in the Deceased providing the Accused with his telephone number so that there could be contact between Tony Bagnato and the Deceased.

The Meeting in the Carpark under the TAB

There is no direct eyewitness evidence as to what actually occurred during the meeting in the Underground Carpark. The Underground Carpark did not have any CCTV cameras operating, and there was no-one other than the Deceased, the Accused and Tony Bagnato in the Underground Carpark at any time.
In so saying, I reject the argument advanced by senior counsel for the Accused that there was anyone else in the Underground Carpark. That argument was based on the evidence of one eyewitness (Mr Thomas) who said that he saw three men, each of whom was wearing a hoodie, track pants and running shoes, come up from the Underground Carpark, jog across Lords Road and move onto, or else towards, George Street. Mr Thomas was on his phone ringing 000 when he made this observation. He was about 100m away from where the men crossed the road.
Mr Derbyshire, who was standing on the verandah of his mother’s house in George Street, and who had a clear view of the men running up George Street, said there were only two people. He was much closer to the men – probably no more than 20m away. In my view, besides being impressive as a witness, Mr Derbyshire’s evidence, which was consistent with the observations of Mr Atherton and Ms Hay, each of whom saw only two men and also consistent with the CCTV footage taken from 58a George Street, was that he saw only two people running south up George Street. I accept that evidence. Having regard to my own observations on the view, the perspective of Mr Derbyshire was a superior one to that of Mr Thomas. It is also clear that at no time was the Accused wearing clothes of the kind described by Mr Thomas. I prefer the evidence of Mr Derbyshire.
Ms Louise, who was walking in a northerly direction along Flood Street, heard two raised voices coming from the Underground Carpark - there was clearly some form of argument taking place. Ms Louise described one voice as aggressive, threatening and swearing; she could hear swear words but no other words. She described the voice as not shouting but being loud and assertive. The other voice was considerably quieter. It did not sound to her as though they were having a friendly conversation.
Although Ms Louise was led in her evidence to say that it was at around 5.30pm when she was walking to a real estate agent on Marion Street that she heard the voices, I am not convinced that her time is anything more than her best estimate. After she heard the voices, she continued to walk up to the intersection of Marion and Flood Streets to drop off an envelope at a real estate agent. She then returned and walked south along Flood Street.
Her evidence was firm that it only took her two to three minutes between the time she heard the voices and when she was walking back and near to the stairwell. She proceeded further south and when she arrived at the corner of Flood Street and Lords Road, she saw the Deceased on the footpath in Lords Road with blood all over him. She saw two people trying to help him and by the time she reached where he was, he had fallen onto the ground.
A number of witnesses heard five gunshots take place in rapid succession. Mr Thomas heard the loud banging sounds from his car, which was parked on the southern side of Lords Road just opposite the exit ramp of the Woolworths receiving dock. He described the sounds as being “loud banging” and he thought there were “about four or five”. He thought they had been half a second apart, but that they were evenly spaced.
Ms Hay, an occupational therapist, was working in her practice in a shop in Lords Road above the Underground Carpark. At about 5.30pm, whilst in a session with a client, she heard five bangs which sounded to her like gunshots. They were in quick succession, coming from the area below her practice. She spoke to a person in the waiting room and then walked to the front of the shop, looked out and saw the Deceased lying on the grass next to the curb. As noted above, she saw two men walking quickly, almost jogging, going up George Street in a southerly direction, about 20m away from her. She then started dialling 000. That call was recorded on her phone at 5.37pm. This time is consistent with the time observation of Mr Derbyshire, referred to below.
Mr Derbyshire, to whom I have referred above, heard the noises as he was standing at the front verandah of his mother’s house in George Street. The house is the second house in, and on the western side of George Street from Lords Road. Mr Derbyshire thought he was standing about 10m from the edge of Lords Road. He heard five bangs. He readily recognised them as gunshots. He described them in his evidence as having occurred quickly and at reasonably evenly spaced intervals.
Mr Derbyshire looked at his phone and observed that the phone recorded the time as 5.36pm. He looked up from his phone and saw two men running up George Street. Although it will be necessary to deal further with this evidence, it is sufficient at this point in time to observe that I am satisfied that those two people were the Accused and Tony Bagnato.
In coming to an understanding of what occurred in the Underground Carpark, it is also relevant to identify from the forensic evidence what other facts were established.
At the post-mortem examination, it was established that the Deceased died as a consequence of multiple gunshot and stab wounds.
There were three gunshot wounds present in the Deceased. Two had travelled from back to front i.e. he was shot in the back. The first consisted of a bullet wound to the chest which involved the left lung. If the Deceased was standing at the time he was shot, the trajectory of this bullet was in an upward direction. The second bullet again travelled from back to front and to the left of the mid-line, involving the lower abdomen. It also involved the bony pelvis and the small and large bowel. The third was a bullet wound to the Deceased’s left foot which travelled from beneath the foot, through the arch and exited through the top of the foot.
There were four stab wounds identified as having been inflicted as part of an assault on the Deceased, rather than during the course of medical resuscitation. They all entered from the back – one of them penetrated the right pleural cavity, one terminated in the lower lobe of the right lung and the others extended into or near the bony parts of the vertebral column. The wounds ranged in depth from 13mm to 21mm.
There was a fifth sharp force injury identified on the deceased’s back, however the forensic pathologist was unable to exclude medical treatment as a cause for that wound. In light of that expert opinion, I am not satisfied that I should regard this fifth wound as being inflicted at the time of the killing of the Deceased.
There were also injuries apparent at the post-mortem examination on the neck of the Deceased. There was recent bruising on both the left-hand and right-hand side of the neck, which was consistent with the Deceased being held from behind in a strangle hold around his neck. The bruises were inflicted prior to his death.
At the post-mortem examination, the fingernails of the Deceased were examined. Scrapings from beneath his fingernails were taken. The DNA of the Accused was later identified as being present in the scrapings taken from underneath the fingernails of the Deceased’s left hand, but not from those on his right hand.
When the Deceased left the Underground Carpark, he ended up on the footpath in Lords Road near the ramp that emerges from the carpark into Lords Road. The only items found with the Deceased at that time were a set of keys to the Nissan Skyline and a Blackberry.
The Accused was arrested on 29 August 2014. Photographs taken at the time of his arrest showed that there were two small partially healed scratch marks on his left cheek.
Forensic examination of the scene in the Underground Carpark located five cartridge cases which had been fired from a 9mm Glock pistol. They were within a relatively confined area measuring approximately 6m in length from east to west and about 1.5m wide from north to south. The cartridges were found in the north-eastern area of the Underground Carpark.
Also found on the ground near the cartridges was a piece of green material which had been torn from the shirt that the Accused was wearing when he went to the meeting.
Mr Andreatta, a police ballistics expert whose evidence, which was uncontradicted by any other expert evidence and not qualified by him during cross-examination, I entirely accept, formed the view that the shots had been fired from an area to the south of the area where the cartridge cases were found, and still generally in an area in the north-eastern quadrant of the Underground Carpark. That was because a Glock pistol ejects cartridges to its right-hand side, and because of where the bullets were identified as having travelled, after the gun was fired.
The area was examined carefully at the time of the killing and a number of indicia regarding the trajectory of the bullets were identified. Some of those were still visible when I undertook a view in the course of the trial. I examined them closely.
One issue which was raised in the cross-examination of Mr Andreatta, which it is convenient to address now, was whether (having regard to such indicia as he saw of the fired bullets and on his physical examination of the Underground Carpark) any of the bullets ricocheted from the concrete floor of the Underground Carpark before impacting any one of the locations identified as having been struck by a bullet. In particular, it was suggested to Mr Andreatta that the bullet which travelled through the air-conditioning duct at the western end of the carpark may well have ricocheted from the concrete floor. Mr Andreatta said that his opinion was that that would not have occurred.
At the scene, which he examined carefully, Mr Andreatta looked for any ricochet marks which might have been left by bullets coming into contact with the concrete floor of the Underground Carpark. He said he looked carefully and could not identify any. He accepted that unpainted concrete (which was the nature of the floor in the Underground Carpark) made it more difficult to identify any ricochet marks. However, he said that he was confident that none were there which went unobserved.
He expressed the view that from his examination of the bullets that were retrieved, the locations of the various impact marks on vertical surfaces, and in the application of his expertise, there was no reason to conclude that any of the bullets had ricocheted first from the concrete floor, before striking anything else.
It was not suggested to Mr Andreatta that there was in fact a mark on the concrete floor consistent with a bullet ricocheting from it. Nor, on the view, was the Court’s attention drawn to any mark which might possibly have reflected such an event.
One of the reasons which Mr Andreatta gave about there not being any bullet which had ricocheted from the concrete floor, was that when such a ricochet occurs, the bullet generally stays at a low angle and would not rise very far from the concrete floor. Mr Andreatta said that when a bullet ricochets from an unyielding surface (a term he used to describe the concrete floor), the departure angle is a very low one. He said that the bullet “would hug the floor”. I accept this evidence which again was uncontradicted by any other expert evidence.
As well, having observed Mr Andreatta closely whilst he was giving his evidence, I formed the view that he was a careful forensic expert whose opinions I could and should accept. I am satisfied that none of the bullets or the fragments recovered or any of the impact marks identified occurred after a bullet had hit the concrete floor of the carpark and then ricocheted onto any other surface.
I am satisfied that there were five shots fired from the Glock pistol because five expended cartridges were found, and five shots were heard by witnesses.
There were four impact sites identified, three complete bullets were found, as were fragments of another. One bullet has not been found. For ease of reference, it will be convenient to describe the bullets by the general direction of their trajectories. The first, which I described as S1, is the bullet which impacted a door on the southern side of the Underground Carpark. The second bullet, which I describe as S2, struck the southern concrete block wall and ricocheted onto another part of that wall. The third bullet, which I describe as W3, struck a metal upright fence post on the fence between the two carparks, at the western end of the Underground Carpark. The fourth, which I describe as W4, passed through the air-conditioning duct located in the carpark to the west of the Underground Carpark, struck the ceiling, ricocheted into a waterpipe and then fell to the ground.
The evidence satisfies me that the marks left by two of the bullets indicated that they had struck an intermediate target (not being the concrete floor of the Underground Carpark) prior to impacting the surfaces where the impact marks were found. Those two bullets were S2 and W4.

With respect to bullet S2, Mr Andreatta explained that the damage to the bullet indicated that the bullet’s nose had not hit the wall at the initial impact site, but rather that it was the side of the bullet’s base which had struck the wall, ricocheted and then it impacted the wall at the second impact site, when the bullet’s nose area was damaged. It then bounced back towards the centre of the Underground Carpark.
Since it is clear that five bullets had been fired, three of which struck the Deceased, and there are only two sets of impact marks which show that the bullets had passed through an intermediate object, I am satisfied that the third bullet which struck the Deceased has not been recovered, and that it must have travelled outside the confines of the Underground Carpark or adjoining areas after first striking the Deceased.
The Police also discovered a series of blood spatters associated with the Deceased as he made his way up the exit ramp to the area on the footpath where he ultimately collapsed. Constable Collard, who was one of the first police officers at the scene, observed that the blood trail was first visible about 15 metres from where the Deceased was lying on the footpath. He observed that as he proceeded away from the Deceased and down the ramp heading into the Underground Carpark, the blood spatters and circumference of the bloodstains had become slightly larger in size and were between two and four metres apart at each interval. He continued to walk down the ramp and observed a larger pool of blood at the base of the ramp, about two metres from a stormwater drain. Photos of the blood spatter taken at the time corroborated this evidence, except that there was no photograph in evidence of the larger pool of blood.
The extent and path of the blood spatter can be readily seen from a sketch plan made of the scene by a Crime Scene officer. The spatter seems to commence from where the ramp slopes upwards which is east and slightly south of the impact mark of the bullet W3.
The Police also found some of the Deceased’s blood on the ground in the north-eastern corner of the Underground Carpark in proximity to the bottom of the stairs leading to Flood Street. This was in an area well away from any bullet impact marks. It was also in a location further towards the northern wall than where the expended cartridge cases were located. Since cartridges would be ejected from the right-hand side of a Glock pistol, I have concluded that the blood stain in the north-eastern corner is not associated with any of the gunshot wounds which the Deceased received. It follows that the bloodstain must be associated with one of the stab wounds which he received.
It is to be recalled that the Deceased had bruise marks on both sides of his neck consistent with his being held from behind in a choke hold.
Because the DNA of the Accused was found under the fingernails of the left hand of the Deceased, and the scratches were on the left-hand side of the face of the Accused, it is most unlikely that they were facing one another when that contact occurred. It is much more likely that they were facing the same direction with one person behind the other.
In my view, the combination of the facts found in the two preceding paragraphs mean that the Deceased was being so held by the Accused in a chokehold from behind, at which time the Deceased reached up with his left hand and, in at attempt to free himself from that choke hold, scratched the Accused’s left cheek with his left hand. This explains how the Accused’s DNA was found under the fingernails of Deceased’s left hand, but not his right hand and the scratches on the left cheek. In the course of the Deceased’s struggle with the Accused, I am also satisfied that the green shirt being worn by the Accused was cut or torn and a part of it, probably from around the neckline, fell to the ground. This part of the green shirt was within a metre of the Deceased’s blood on the ground.
I also observe that the four stab wounds in the Deceased’s back were capable of being delivered whilst the Deceased was being held in a choke hold from behind, by an attacker’s left arm which would leave the Deceased’s back exposed. There were no defensive wounds found on the Deceased’s arms, which also suggests that at no time was the Deceased defending himself from a knife attack to his front.
These facts combine to enable me to draw the conclusion on the balance of probabilities that there was a physical struggle between the Accused and the Deceased during which the Deceased was stabbed. The only injury which the Accused suffered was the minor scratches to his left cheek, and his shirt was cut or torn. It seems to me to be open on these facts to conclude that it was the Accused who stabbed the Deceased. However, such a finding is not an essential one to be made in the way in which the Crown has formulated its case. Accordingly, I refrain from considering such a conclusion in this judgment.
The physical struggle happened in the general area of the single blood-stained mark of the Accused’s blood in the north eastern area of the Underground Carpark.
There is no evidence that Tony Bagnato suffered any injuries. None were observed by anyone and, as Mr Derbyshire’s evidence showed, he was able to make good his escape by running up a slight hill in George Street towards his motor vehicle. It is unlikely that he was injured at all. If he was, I would not have expected him to have been able to make his escape in the manner which he did.
The crime scene evidence, and the expert evidence of Mr Andreatta, satisfies me that the pistol was fired by a person who was within the circular area described by Mr Andreatta whilst the gunman was facing in a south-western, and westerly direction. The location of the spent cartridges, amongst other things, strongly indicates that, as does the trajectory of the four bullets which have been identified. The forensic evidence from the crime scene above does not enable me to draw any conclusions about the stance of the shooter. I have annexed to this judgment, a diagram prepared by Mr Andreatta which illustrates these matters.
Having regard to the evidence of Mr Andreatta and his opinion as to the direction and trajectory of the bullets which were discharged in the Underground Carpark, I am satisfied that the Deceased was shot as he attempted to escape from the Accused and Tony Bagnato, having broken free of the chokehold in which he was held and during which it is likely that he was stabbed. After breaking free and having commenced to make his escape from the Underground Carpark via the vehicle ramp, he was shot in the back by Tony Bagnato. I am satisfied that it was Tony Bagnato who shot the Deceased because he was wearing black gloves (similar to those worn by police officers) as he ran up George Street, and the CCTV footage of him leaving his apartment shows a heavy and somewhat bulky item in his left‑hand side pocket. When combined with his speedy flight from the jurisdiction within 48 hours, I have concluded that it was he who fired the pistol, killing the Deceased.
In coming to this conclusion, I have considered and rejected the submission of senior counsel for the Accused that the statement made by the Accused to Kyle Turner as to what had happened suggested that Tony Bagnato shot the Deceased during the course of the physical struggle with the Accused. Senior counsel also submitted that this description of what occurred is supported by the gunshot wound in the Deceased’s foot. In my view, that wound could have occurred whilst the Deceased was attempting to escape. A person running even at a slow pace could expose the sole of their foot to enable the passage of a bullet in the same way as the gunshot wound suffered by the Deceased. As well, as later explained, the fact that all three bullets passed through the Deceased and did not strike the Accused tells strongly against accepting this submission. Finally, the forensic evidence of the trajectory of the bullets, and the location of the blood stains, taken together with the other matters mentioned, leads me without any hesitation or doubt to reject the submission of senior counsel as to what occurred. Nor am I persuaded that it is even a reasonable possibility.
This sequence of events most comfortably fits with all of the forensic evidence. The only drops of the Deceased’s blood consistent with his having been shot are those drops and the blood trail commencing at the bottom of the exit ramp. The locations of the fired cartridges and the absence of any impact marks in the north-eastern corner of the Underground Carpark, point strongly towards the Deceased’s blood which was found in that location as not having resulted from a gunshot wound but, rather, from one of the stab wounds, or else from an item associated with the stab wounds falling to the ground.
As well, had the blood in that area come from a gunshot wound I would have expected to see a blood trail from the north-eastern corner of the Underground Carpark towards the area at the bottom of the exit ramp. I would also have thought that the obvious avenue of escape for the Deceased would have been up the stairs to Flood Street. The absence of a blood trail, and the fact that the Deceased used the exit ramp to escape lead me to conclude that the Deceased was not shot in the north-eastern corner of the Underground Carpark.
I am satisfied, having regard to the care with which the Underground Carpark was searched, that had there been an impact mark from the unrecovered fifth bullet in the north-eastern area, it would have been identified. Certainly, no such mark was obvious during the view.
After he was shot, the Deceased staggered up the exit ramp to the roadway and collapsed on the nature strip of Lords Road. People came to assist him, CPR was attempted, ambulance officers (including advanced resuscitation experts) attended but the Deceased was unable to be revived.
The evidence does not suggest that the Deceased said anything at all to any of those people helping him about what had occurred, no doubt because of the condition that he was in. No weapon of any kind was found on or near the Deceased. None was found in the Underground Carpark. I am satisfied that the Deceased was not carrying a weapon with him when he attended the meeting. I am also satisfied that the gun and knife used to inflict the wounds on the Deceased were carried away from the scene by Tony Bagnato and the Accused.
I have earlier referred to the issue of whether two or three people were seen coming out of the exit ramp after the Deceased and crossing Lords Road in the direction of George Street.
As I have said, in my view, Mr Derbyshire’s account of what he saw is the most reliable account of what occurred. I found Mr Derbyshire to be an impressive witness whose evidence was carefully given. Having heard the gunshots, Mr Derbyshire saw two men running up George Street. At that point he was standing on the front verandah of his mother’s house, which was, as the view taken by the Court showed, about four steps above ground level. The house itself was about 10 metres from the intersection of George Street and Lords Road. That intersection was closed to traffic with a small garden in place. The house was on the west side of George Street and Mr Derbyshire was looking towards the east. Mr Derbyshire saw the two men running up George Street (in a southerly direction) towards Treadgold Street. The men were running on the road itself beside the parked cars. They were fairly well-built, around 5’10”. Mr Derbyshire thought that they were “… rugby players or fit”.
Mr Derbyshire was asked to give a description of the men. He said that one of them had a rugby jersey on with the number “7” on it. It was green with short sleeves. That man was wearing shorts and sneakers. The number “7” was visible on the back of the jersey. There is no dispute that this man was the Accused.
When asked to describe the second man, whom I am satisfied on all of the evidence was Tony Bagnato, Mr Derbyshire said that because the man was wearing black gloves, he thought that he was a police officer. He said that the individual had a dark coloured baseball type hat. He also gave a description of the clothes that the person was wearing.
He observed the men to run up George and “take a left”. That is, they ran into Treadgold Street. The only thing he heard was one of the men, who I am satisfied was Tony Bagnato, say in a frantic way to the other person “Where’s the keys? Where’s the fucking keys”.
I am satisfied that the two men continued to run up to the Holden Astra motor vehicle which was parked in Treadgold Street, got in and drove off along Treadgold Street and George Street to Parramatta Road where it turned left and proceeded in an easterly direction.

Some Events of Early August 2014

As a matter of context, and seemingly motive (although motive is not an element of the charged offence), the Crown relied on various events which occurred in the period between 3 and 11 August 2014. At that time, the Deceased’s sister, Cassie Dillon, was in a rapidly declining relationship with Adrian Riccio. He was a member of the Fight Club.
Ms Dillon entered into a relationship with Mr Riccio in about April 2014. In about mid to late July, Ms Dillon observed that Mr Riccio was “… acting really weird”. She found that he would often go for days without talking to her and would not respond to his mobile phone. At about that time, Mr Riccio asked Ms Dillon for a loan from her so that he could attend a rehabilitation facility in Broadbeach in Queensland. Ms Dillon lent him $600 from her own funds and borrowed a further $700 from her friend, Adam Powell, to on-lend to Mr Riccio. Ms Dillon told Mr Riccio that the money would have to be repaid, and he promised that he would do so as soon as he could.
Mr Riccio was in the habit of changing his phone number regularly. Ms Dillon said that he used about 12 different phone numbers during the course of their relationship.
Ms Dillon’s evidence was that on 2 August, Mr Riccio caused a woman whom he described to Ms Dillon as his “Italian cousin” to steal a further sum of cash ($1,000) from Ms Dillon’s handbag.
When Ms Dillon realised that the money had been taken, she sent a text message to Mr Riccio, shortly before 4.15pm on 3 August, asking whether his cousin had taken money out of her handbag when she had stepped out of the car on the previous day. There followed, during that afternoon and evening, a series of text messages from Ms Dillon to Mr Riccio (none of which he responded to) in circumstances where a response was plainly called for.
The text message communications resumed the following day, 4 August 2014. Besides drawing attention to the fact that Mr Riccio had not responded to any of her texts, Ms Dillon demanded the return of the monies which she had lent to him and the money which had been taken from her handbag. Shortly before 9.45pm that evening, Mr Riccio responded with the following text message:

“Yes I understand how much I owe, why do you need to know where I am. I dont have your money, I need someone to help me out so I can give you your money. I always had my parents help, now I dont and I can’t ask my mates. I understand why you cant trust me.” (sic)

In a series of text messages, at about 10.30pm, Mr Riccio told Ms Dillon, amongst other things, that he would call her when he had the $1,300 he owed her. This message obviously referred to the money which Ms Dillon lent him rather than the money stolen from her handbag.
The attempts by Ms Dillon to obtain repayment of her funds were not met with any positive result. Indeed, several of the promises made by Mr Riccio were positively misleading. On one occasion Ms Dillon drove to Drummoyne to meet a person (Jacinta) whom she understood to be the girlfriend of a friend of Mr Riccio, who gave her an envelope from Mr Riccio which had $2,050 written on the front of it, suggesting that it was the total of the amount owed. When she opened the envelope, she found a single $50 note and wads of paper padding out the envelope to make it appear that all the money owing was in the envelope. She was also given false information about where Mr Riccio was to be found. She communicated a message via Jacinta to Mr Riccio saying that if the money was not repaid to her, then she would go and speak to his mother (with whom she had a good relationship). At the time of saying that, she told Jacinta that it was better for her to go and see Mr Riccio’s mother rather than “getting my brother involved”.
The message stating that Ms Dillon would go and see Mr Riccio’s mother had clearly been passed on to him because a text message response was received from the mobile phone being used by Jacinta (the girlfriend of Mr Riccio’s friend) in the following terms. It said:

“GO ANYWHERE NEAR HIS MUM [sic] HOUSE SOMEONE WILL PAY DEARLY FOR IT”

Finally, in the early hours of the morning on 6 August 2014, Ms Dillon (again communicating via Jacinta) told Mr Riccio that if he did not telephone her by that evening and repay her the money, she would go and see his mother the following day. A little later that morning, Ms Dillon repeated the message that she would go and see Mr Riccio’s mother at 9am that morning. She added in her text:

“If nothing happens with her, I’m telling other people and shit’s going to get worse.”

Ms Dillon continued to vigorously pursue the money owed to her by sending further text messages to different numbers in an attempt to get Mr Riccio’s attention. She gave this evidence, which I accept, and which well describes the feeling which existed between them:

“Q. Did you get a call from Mr Riccio while you were still driving home from the city, having been to the hotel?
A. Yes.
Q. When you spoke to him, what tone of voice did he use?
A. He was very angry.
Q. How loud was his voice?
A. He was screaming at me, swearing.
Q. What did he say to you?
A. He ‑ I told him that I ‑ about going to his mum's house and then he said to me ‑ like, I said ‘I don't want to get my brother involved’ and he threatened me.
Q. What did you say about going to his mum's place?
A. I just said I just want to go to her house and talk.
Q. When he threatened you, what the did he say?
A. He said something like, ‘Your fucking brother, he can't do shit to me’ and got ‑ yeah, he was getting ‑ he's very, very angry.
Q. Why did you tell him you didn't want to get your brother involved?
A. Because I thought it will just be easier to talk to his mum.”

When Ms Dillon still had not been repaid her money, at about midday on 6 August, she spoke with her brother, the Deceased, regarding the outstanding monies still owing to her. At about 3.40pm on that day, Ms Dillon sent a message to Jacinta’s phone (which she understood was being used by Mr Riccio) saying that he should remember that Ms Dillon’s brother knew where Mr Riccio’s mother lived. Over the rest of that day there was considerable SMS activity between the phone which I am satisfied was being used by Mr Riccio, and the Deceased. Text messages were sent back and forth. It is unnecessary to describe the detail of those messages, save to say that no amicable resolution was reached.
The Deceased had contacted Jarryd Boyd late in the afternoon of 6 August. Mr Boyd had attended school at Holy Cross, at the same time as the Deceased. They were a year apart whilst at school but were familiar with each other. This was because Mr Boyd’s younger brother, Daniel, and the Deceased were friends.
Mr Boyd was friendly with Tony Bagnato because they had been at primary school together. His contact with Tony Bagnato was not frequent but they occasionally trained together at the Fight Club gym.
Mr Boyd gave evidence that when the Deceased spoke with him over the telephone, he was looking for Tony Bagnato’s phone number and asked whether Mr Boyd could give it to him or, alternatively, arrange for Tony Bagnato to call him. The Deceased told Mr Boyd that he had an issue with a person to whom his sister had lent money, that he was trying to recover that money but that his family was being threatened and he wanted to sort it out. The debtor was identified to Mr Boyd as Ted. Mr Boyd knew Ted (Mr Riccio) was associated with Tony Bagnato because he had met him whilst training at the Fight Club gym.

the place selected to park the Holden Astra in Treadgold Street was for reasons earlier explained, selected in order to give a clear escape route which was unlikely to be interrupted by traffic and thereby permitting a quick and clear escape. There was no reason to park the car where it was unless it was in the contemplation of the occupants that they would need to escape quickly from the meeting. Parking the car where it was is consistent with no other purpose of the meeting than Tony Bagnato and the Accused going to the meeting with the intention of committing a crime whilst there against the Deceased. Given the weapons they were carrying, that intention must have been, at least, to cause grievous bodily harm to the Deceased. If it were otherwise, and the meeting was intended to be only a benign discussion, that could have occurred in the TAB or else if the Underground Carpark was where the meeting was to occur, then by Tony Bagnato and the Accused driving the Holden Astra into the Underground Carpark and having the meeting with the Deceased and then driving away. They could have parked much closer, as did the Deceased. However, they intentionally positioned the vehicle about 200m away from the meeting place, in a street where it was not obvious which was not busy with traffic or pedestrians, and from which location they could make a speedy, easy and clean getaway. The place selected for parking obviously indicates a need for a quick get-away. This was wholly inconsistent with any benign purpose for the meeting; and

finally, the Underground Carpark was a location chosen by Tony Bagnato and the Accused because, as a result of the reconnaissance undertaken by the Accused, it was found to be appropriate because it was not open to be looked into by passers-by and had no CCTV footage.

Each of these steps demonstrates beyond any doubt to me that they did not occur at random, nor did they occur by coincidence. They demonstrate a clear plan devised between Tony Bagnato and the Accused which commenced during their 57 second phone call to do that which occurred, namely, to cause at least grievous bodily harm to the Deceased by use of the weapons taken to the meeting.
Although I have not relied upon the statement made by the Accused to Kale Turner on 13 August 2014, the content of that statement (contrary to the submission of senior counsel for the Accused) is not inconsistent with these findings and my conclusions.
There are two principal reasons for this. The first is that the use of the word “we” in the second and third sentences, particularly the expression “We fucked this guy up” supports the existence of a joint plan and a joint attack on the Deceased. The second is that I do not interpret the final sentence as suggesting any unexpected or surprising participation by Tony Bagnato. It merely describes a sequence of events which accord with what I have found to have occurred.
One further matter that to me demonstrates that the Accused was an integral part of these arrangements and the intended criminal enterprise, is that my analysis of what occurred in the Underground Carpark which I have set out at [120] – [130] above. I am satisfied that the Accused procured the knife which was taken to the meeting – the purpose of which was not for it to be used in self-defence, but for it to be used as part of any assault on the Deceased, with the intention of causing grievous bodily harm to the Deceased. I am satisfied that the Accused procured the knife for the meeting, on the probabilities, because of the circumstances that before going into Loading Dock 7 to be collected by Tony Bagnato, the Accused walked through that part of Johnnies Seafood Shop where a large number of knives were kept, in circumstances where he had ready access to them, and the removal of one knife would be unlikely to be immediately obvious to detected by others in the shop.
In addition, as Tony Bagnato and the Accused made their escape after stabbing and shooting the Deceased, Tony Bagnato was heard to say to the Accused “Where are the keys, where are the fucking keys”. It is to be recalled that Tony Bagnato was driving the car when the Accused was collected from Loading Dock 7 and, I am satisfied, continued to drive it until it was parked prior to Tony Bagnato and the Accused both leaving the vehicle to go and meet the Deceased. In those circumstances, one would ordinarily expect the driver, Tony Bagnato, to be carrying the keys. If that were so, there was no reason for him to say what he did. There was simply no reason for him to ask the Accused where the keys were.
The Accused submitted that this statement ought be interpreted as Tony Bagnato being in possession of the keys but being unable to find them and so calling out as he did. I am unpersuaded that that is so. Rather, I am satisfied, that he was calling out to the Accused for the keys because, as they had left the car, to make their way to the Underground Carpark, the Accused was in possession of the keys. This must have been by arrangement with Tony Bagnato. It forms another fact which contributes to the absence of any doubt which I have about whether there was a joint agreement between Tony Bagnato and the Accused to do what they did.

Elements of the Offence of Murder

Having been satisfied by the Crown of the facts previously described, it is necessary for me to now consider whether the Crown has proved beyond reasonable doubt that the Accused is guilty of murder.
Accordingly, I now give myself the following directions with respect to the constituent elements of murder and to the elements of a joint criminal enterprise.
Before a verdict for murder can be reached, the Crown must prove, beyond a reasonable doubt, that the Accused either by himself, or, as part of a joint criminal enterprise with another, did a voluntary act which caused the death of the Deceased and such act was committed with:

an intent to inflict grievous bodily harm; or

an intent to kill; or

with reckless indifference to human life.

With the charge of murder, the physical element of the death of a person is not enough to return a verdict of guilty. I must be satisfied that the mental element of the offence – being the intention of the Accused, either alone or as a part of a joint criminal enterprise, is proved beyond reasonable doubt. If not, I must return a verdict of not guilty.
In light of the submissions of senior counsel for the Accused, that the Crown has not disproved that the killing was a lawful one because Tony Bagnato was acting to defend the Accused, it is necessary to direct myself about “self-defence”.
Section 418(1) of the Crimes Act 1900 provides that a person is not criminally responsible for an offence if the person is acting in self-defence. Section 418(2) relevantly provides that a person is acting in self-defence if, and only if, the person believes that conduct is necessary to defend another person and that the conduct is a reasonable response to the perceived risk.
Section 419 provides that where self-defence is raised, the prosecution has the onus of proving beyond reasonable doubt that the person did not act in self-defence.
Accordingly, I give myself the following directions which relate to the way in which the issue of self-defence or defence of another was raised:

it is necessary for the Crown to prove beyond reasonable doubt that Tony Bagnato did not believe his conduct in shooting the Deceased was necessary in order to defend the Accused; and

if the Crown has not proved the absence of the requisite belief then it is necessary for the Crown to prove beyond reasonable doubt that what Tony Bagnato did was not a reasonable response in the circumstances as perceived them to be.

Following upon any determination of the issues the subject of these directions, it may become necessary to give myself further directions. Such directions would deal with the requirements of s 421 of the Crimes Act. Those directions which I have given, and which will be applied, are sufficient at this stage.
In this case, the Crown seeks to prove that the Accused is guilty of murder on the basis of a joint criminal enterprise.
With respect to the existence of a joint criminal enterprise, I note that the Crown’s allegation is that on 11 August 2014, the Accused and Tony Bagnato entered into an agreement to inflict at least grievous bodily harm upon the Deceased, during the execution of which agreement, the Deceased was killed.
Before I can find that the Accused is guilty of murder by reason of the joint criminal enterprise, I must be satisfied of the following elements beyond reasonable doubt:

the Accused and Tony Bagnato entered into an agreement to inflict at least grievous bodily harm upon the Deceased;

that either the Accused or Tony Bagnato voluntarily did an act with the intention of inflicting such harm;

the Deceased died as a result of that voluntary act; and

that either Tony Bagnato or the Accused, whoever did not do the act, was present when the act was committed and was present because of the agreement they had entered into to be a part of the joint criminal enterprise.

As well, the Crown puts its case alternatively, in accordance with the doctrine of extended joint criminal enterprise. I will defer considering this alternative case until I reach a conclusion on the Crown’s primary case.
The law is that where two or more persons carry out a joint criminal enterprise i.e. an agreement to carry out a particular criminal activity, each is responsible for the acts of each other participant in carrying out that enterprise or activity. This is so regardless of the actual role taken by a particular participant. The Crown must establish both the existence of a joint criminal enterprise and the participation in it by the Accused.
A joint criminal enterprise exists where relevantly to this matter, two persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The agreement need not be expressed in words, and its existence may be inferred from all the facts and circumstances surrounding the commission of the offence which are proved by the evidence.
The agreement need not have been reached at any particular time before the crime is committed, provided that at the time of the commission of the crime, the participants were agreed that the crime should be committed by either of them.
The circumstances in which two persons are participating together in the commission of a particular crime may themselves establish that at some point in time, an agreement has been reached between them that the crime should be committed. For example, if two people are at the very same time punching a third person, I could infer or conclude that they had agreed to assault that person.
It does not matter whether the agreed crime is committed by any one or other of the participants in the joint criminal enterprise, or whether they each played an active part in committing that crime. All of the participants in the enterprise are equally guilty of committing the crime regardless of the actual part played by each in its commission.
The Crown must prove beyond reasonable doubt that the crime which was the subject of the joint agreement was in fact committed. It therefore must prove beyond reasonable doubt that each of the essential facts are ingredients which make up that crime was committed, regardless of who actually committed them. Further, in respect of a particular accused, the Crown must prove beyond a reasonable doubt that he or she was a participant in the commission of that crime as part of a joint criminal enterprise with another person.

Has the Crown Proved the Offence on the Indictment?

In light of the directions which I have given myself, it is first necessary to decide whether the Crown has established beyond reasonable doubt that the killing of the Deceased was an unlawful one.
The Accused submits that the Crown has not discharged the burden because there remains a reasonable possibility that Tony Bagnato was acting in the way he did because of a belief that his conduct was necessary to defend the Accused. It will be convenient, although not strictly accurate, to use the phrase self-defence to describe this submission.
The genesis of the submission is the statement made by the Accused to Kale Turner, which I have set out at [228] above. The substance and effect of the statement was that Tony Bagnato shot the Deceased whilst the Accused and the Deceased were engaged in a physical struggle. Senior counsel for the Accused submitted that the Crown had not disproved that Tony Bagnato was acting in self-defence.
In considering this issue, I keep in mind and do not repeat my earlier consideration of this statement and its consistency with other evidence. Had the bullets entered the Deceased’s body as he was in a physical struggle with the Accused, the likelihood was that as they exited from his body, they would have struck the Accused. It is clear that the bullets S1 and W3 did not strike anyone before their point of impact. The trajectory and path of the bullets S2 and W4, in particular the difference in their direction and the height of the impact of W4, does not suggest that the bullets were discharged into a man engaged in a physical struggle.
At the autopsy, no bullets were found in the body of the Deceased. The three bullets which struck him all had exit wounds which indicated that they had passed through the body of the Deceased.
I am satisfied that there were no bullet marks which indicated that the bullets ricocheted off the concrete floor of the carpark. And I have already found that the trajectory of the bullets S1, S2, W3 and W4 were in a generally southward and westward direction from where the shooter was standing. This is, in my view, inconsistent with the gunshots being fired into the Deceased whilst the Deceased was engaged in a physical struggle with the Accused.
The conclusion which I expressed at [165] together with the matters to which I have just referred, means that there is no room for a conclusion that the Deceased, an unarmed man, was shot by Tony Bagnato whilst he was acting in self-defence. More formally, I conclude that the Crown has proved beyond reasonable doubt that the killing of the Deceased was unlawful and further that Tony Bagnato was not acting in defence of the Accused when he shot the Deceased and killed him.
The Crown’s primary case is one of joint criminal enterprise between Tony Bagnato and the Accused. That being so, I remind myself that the Crown needs to prove beyond reasonable doubt that the Accused and Tony Bagnato had entered into an agreement to inflict at least grievous bodily harm on 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.
The Crown has satisfied me beyond reasonable doubt that at all times throughout the meeting in the Underground Carpark both Tony Bagnato and the Accused were present together and that one or other of them, on the probabilities, Tony Bagnato, voluntarily shot the Deceased as he was seeking to escape from the location after a physical struggle with the Accused during which he was stabbed.
The Crown has also satisfied me that the three bullets fired from a 9mm Glock pistol killed the Deceased.
Given that there were five bullets fired consecutively at approximately equal intervals at the Deceased as he was seeking to escape, the Crown has satisfied me that the person who did the shooting intended to cause the Deceased grievous bodily harm. No other conclusion is available.
The final element of the proof of the offence is the existence of an agreement between Tony Bagnato and the Accused to inflict grievous bodily harm on the Deceased. The Crown has satisfied me beyond reasonable doubt that the conduct of both Tony Bagnato and the Accused in the Underground Carpark was done by them pursuant to that agreement.
As I have explained in [272] and [273] above, for the reasons there expressed, I am satisfied beyond reasonable doubt that a plan to cause grievous bodily harm to the Deceased existed between Tony Bagnato and the Accused, and that pursuant to that agreement the Deceased was killed.
I have reasoned to that conclusion by inference from all of the facts, matters and circumstances proved in the evidence. The sequence of events commencing with the meeting between the Accused and the Deceased at the auto-repair shop and concluding with the escape from the scene of the killing by the Accused and Tony Bagnato, occupied about two hours. Contact was made first between the Accused and Tony Bagnato. Tony Bagnato was informed of that contact. At about 4.16pm, the Accused set out from Johnnies Seafood Shop and undertook a reconnaissance of the area. At the conclusion of that reconnaissance, an 87 second long phone call took place between Tony Bagnato and the Accused. A little over five minutes later, Tony Bagnato, having changed clothes to add a hooded jacket capable of concealing his identity, leaves his apartment with a heavy object in his pocket which, I am satisfied, is a pistol. As he leaves the carpark of his building, he activates a previously unused mobile phone, subscribed in a false name, which is not traceable to either him or the Accused.
Tony Bagnato drives to Leichhardt and collects the Accused from Loading Dock 7 where the Accused is waiting. They drive around in the general vicinity of the MarketPlace Leichhardt. During this period, the burner phone is used to contact the Deceased. The Deceased returns the contact with a phone call which last 58 seconds. Within 10 minutes of that phone call, the Deceased, who is unarmed, parks his car opposite the TAB in Leichhardt and rings the burner phone to signal his arrival. He then enters the TAB, where he waits for about 10 minutes, obviously expecting someone else to arrive.
After about 10 minutes without anyone arriving, the Deceased leaves the TAB to check his mobile phone. He opens a text message sent about five minutes earlier from the burner phone which tells him that the meeting will be in the Underground Carpark which is under the TAB. He goes there.
Whilst this is happening, Tony Bagnato and the Accused have parked their car in Treadgold Street, about 200m from the Underground Carpark. They walk down to the meeting in that carpark. Tony Bagnato is carrying (or wearing) black gloves. The two of them take two weapons to the meeting – a loaded Glock 9mm pistol with at least five rounds in the magazine, and a knife.
A physical struggle between at least the Accused and the Deceased occurs during which the Deceased is stabbed. He attempts to escape and is shot at five times rapidly. Three bullets strike his body causing his death.
Tony Bagnato and the Accused run from the Underground Carpark to their car and make their escape through back streets to Parramatta Road.
I note that it was possible for the meeting, if there was no malign intention on the part of Tony Bagnato and the Accused, to have taken place in an open area if the Deceased’s car and that carrying Tony Bagnato and the Accused had parked in close proximity. The meeting could have taken place in the TAB where the Deceased was waiting and expecting the arrival of Tony Bagnato and the Accused. But, at the last minute, through the use of the burner phone which could not be directly traced to Tony Bagnato or the Accused, the location of the meeting was changed to the Underground Carpark, which was a location out of the public view and without CCTV cameras monitoring it.
I also note that it was possible for the Holden Astra which was the vehicle used by Tony Bagnato and the Accused, to have been parked in the Underground Carpark or on a street in the immediate proximity of that Carpark just as the Deceased’s car was. Instead, it was intentionally parked some 200m away in a location which permitted a fast getaway. This parking choice is only consistent with the knowledge of both Tony Bagnato and the Accused that they will need to make a quick getaway after the meeting. That is not consistent with a benign reason for the meeting.

Tony Bagnato and the Accused did not need to take a loaded Glock 9mm pistol, black gloves and a knife to the meeting where the Deceased was seeking Tony Bagnato’s assistance to intercede with Adrian Riccio to prevent threats turning violent against the Deceased’s family. Instead they took the weapons so that they could fulfil their purpose of causing the Deceased grievous bodily harm.
From all of the facts and circumstances I am satisfied beyond reasonable doubt that there is no rational inference available other than that the Accused entered into an agreement with Tony Bagnato to cause grievous bodily harm to the Deceased.
This conclusion means that the Crown has proved the guilt of the Accused beyond reasonable doubt of the offence with which he has been charged.
There is no need for me to consider the Crown’s alternative case based upon an extended joint criminal enterprise.

Return of Verdict

My verdict is that the Accused is guilty of the murder of Bradley Dillon at Leichhardt on 11 August 2014. I enter a conviction accordingly.

**********

Decision last updated: 13 December 2021

Medium Neutral Citation:	R v Carbone [2021] NSWSC 1552
Hearing dates:	12, 13, 14, 15 October 2021 18, 19, 21 October 2021
Date of orders:	10 December 2021
Decision date:	10 December 2021
Jurisdiction:	Common Law - Criminal
Before:	Garling J
Decision:	See [323]
Catchwords:	CRIME – murder – trial by judge alone – wholly circumstantial case – whether there was an existence of joint criminal enterprise – dispute over outstanding debt to the deceased’s sister – deceased stabbed and shot several times in an underground carpark– whether accused went to the carpark on the basis of an agreement with his co-actor to intentionally inflict at least grievous bodily harm upon the deceased – Crown has proven beyond a reasonable doubt that there is no other rational inference available – verdict of guilty
Legislation Cited:	Criminal Procedure Act 1986 Crimes Act 1900 Evidence Act 1995
Cases Cited:	Carbone v R [2020] NSWCCA 318
Texts Cited:	Not Applicable
Category:	Principal judgment
Parties:	The Crown Diego Carbone (Accused)
Representation:	Counsel: M England / E Curran (Crown) M Tedeschi QC (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) Goold Law (Accused)
File Number(s):	2014/255002
Publication restriction:	Non-publication order made 19 October 2021.