R v Carbone - [2016] NSWSC 1591

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Carbone [2016] NSWSC 1591
Hearing dates: 7 and 8 November 2016
Date of orders: 08 November 2016
Decision date: 08 November 2016
Before: Davies J
Decision:
Refuse the application under s 65 Evidence Act to admit the statement of Kale Turner dated 25 May 2015

Catchwords:
CRIMINAL LAW – murder – application by Crown to adduce evidence in statement of unavailable witness – circumstantial case – witness gives significant evidence of admissions inculpating accused – whether admitting statement unfair to accused – whether probative value outweighed by unfair prejudice – unfair prejudice outweighs probative value
EVIDENCE – hearsay evidence – s 65 Evidence Act - whether witness unavailable – late enquiries to ascertain whereabouts of witness – whether representation against interest of witness – whether representation made in circumstances making it likely it is reliable – induced statement to Crime Commission – witness might be considered an accomplice – statement not demonstrated to be likely to be reliable – statement rejected
Legislation Cited: Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: R v Kazzi; R v Williams; R v Murchie [2003] NSWCCA 241; 140 A Crim R 545
Sio v The Queen [2016] HCA 32; (2016) 90 ALJR 963
Category: Procedural and other rulings
Parties: Crown
Diego Carbone (Accused)
Representation:
Counsel:
R Herps (Crown)
W Terracini SC (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Tsambas & Co. Solicitors (Accused)

File Number(s): 2014/255002
Publication restriction: Publication restricted to the parties until the conclusion of the trial.

Judgment

The Accused is charged with murdering Bradley Dillon on 11 August 2014. The Crown now seeks to lead hearsay evidence of a witness Kale Turner on the basis that Kale Turner is not available to give evidence. A Notice under s 67 of the Evidence Act 1995 (NSW) was given on 1 November 2016.
The evidence sought to be adduced is contained in a statement made by Mr Turner to the NSW Crime Commission on 25 May 2015. As paragraph 5 of the statement makes clear the statement was an induced statement made after police investigating the deceased's death attended at Mr Turner's unit to enquire about his knowledge of the deceased's murder. It has been agreed between the Crown and those acting for the Accused that much of the material contained in the statement will not be adduced. The material sought to be adduced consists of some background information showing how Mr Turner came to meet the Accused. This happened by virtue of their membership at a Fight Gym called “St Michael’s Christian Fight Club” in Petersham or Lewisham. Mr Turner knew the accused as Beaver although he also knew his correct first name was Diego. On the apparently few occasions on which Mr Turner met or saw the Accused it was through a mutual friend with whom Mr Turner shared a flat called Tom Sayer.
The particular evidence which the Crown seeks…

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 [2016] NSWSC 1591
Case: [2016] NSWSC 1591
Decision Date: 08 November 2016

CaseChat Overview and Summary

In the case of R v Carbone, the respondent, Carbone, was charged with murder. The Crown sought to adduce evidence from a witness who was unavailable to testify in person. The case came before the court to determine whether the statement of the unavailable witness could be admitted under the provisions of the Evidence Act. The court was required to consider whether the probative value of the statement outweighed any unfair prejudice it might cause to the accused.

The court examined the circumstances under which the statement was made and whether the witness could be considered an accomplice. It was determined that the witness might be an accomplice, and the statement was not shown to be reliable. The court also considered whether the witness was truly unavailable and whether there had been sufficient efforts to locate the witness. Given these factors, the court found that the probative value of the statement was outweighed by the unfair prejudice it would cause to the accused.

As a result, the court rejected the statement as evidence. The court held that the statement of the unavailable witness, who might be an accomplice, was not reliable enough to be admitted under the provisions of the Evidence Act. The court concluded that the unfair prejudice to the accused outweighed the probative value of the statement. The court's decision was that the statement could not be admitted as evidence in the trial.

Orders