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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Carbone

Details

AGLC: R v Carbone [2021] NSWSC 1552
Case: [2021] NSWSC 1552
Decision Date: 10 December 2021

CaseChat Overview and Summary

The accused was charged with murder, which was tried before a judge alone in the Supreme Court. The deceased had been stabbed and shot multiple times in an underground car park. The nature of the dispute was whether the accused had intentionally gone to the car park with a co-actor to inflict grievous bodily harm on the deceased, as part of a joint criminal enterprise. The dispute also involved an outstanding debt to the deceased’s sister.

The court was required to determine whether the evidence presented was sufficient to prove beyond reasonable doubt that the accused was part of a joint criminal enterprise with the co-actor to intentionally inflict grievous bodily harm on the deceased. The court also needed to consider whether the evidence proved beyond reasonable doubt that the accused had intentionally gone to the car park on the basis of an agreement with the co-actor to inflict grievous bodily harm upon the deceased.

The court found that the evidence presented was sufficient to prove beyond reasonable doubt that the accused was part of a joint criminal enterprise with the co-actor to inflict grievous bodily harm on the deceased. The court found that the evidence showed that the accused had intentionally gone to the car park on the basis of an agreement with the co-actor to inflict grievous bodily harm upon the deceased. The court found that there was no other rational inference available from the evidence presented. The verdict of guilty was returned.

The court found the accused guilty of murder and sentenced him to life imprisonment with a non-parole period of 25 years. The court also ordered that the co-actor be charged with murder and tried separately.

Orders