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R v Carbone

R v Carbone

Case [2000] NSWCCA 387 3 November 2000

Verdicts Unreasonable or Incapable of Being Supported

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CITATION: R v Carbone [2000] NSWCCA 387

FILE NUMBER(S): CCA 60665/99

HEARING DATE(S): 3 October 2000

JUDGMENT DATE:
3 November 2000

PARTIES :

Joe Michael Carbone
Regina

JUDGMENT OF: Wood CJ at CL at 1; O'Keefe J at 64; Carruthers AJ at 65

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/11/0192

LOWER COURT JUDICIAL
OFFICER : Shillington DCJ

COUNSEL : W.G. Dawe QC for Crown
G.J. Stanton for Applicant

SOLICITORS: S.E. O'Connor
Agostino & Co

CATCHWORDS: CRIMINAL LAW - appeals - appeal against conviction - sexual assault - multiple count sexual assault - uncorroborated evidence of complainant - conflicting or inconsistent verdicts - verdicts unreasonable or incapable of being supported having regard to the evidence - lack of probative force - verdicts of acquittal.

LEGISLATION CITED: Criminal Appeal Act 1912 (NSW) s6(1)
Crimes Act 1900 (NSW) s61(M)(1), s61J, 66(C)(1)

DECISION: (1) Appeal against conviction allowed; (2) Conviction and sentence set aside and verdicts of acquittal substituted

IN THE COURT OF
CRIMINAL APPEAL
No. 60665 of 1999

WOOD CJ at CL
O’KEEFE J
CARRUTHERS AJ
FRIDAY 3rd NOVEMBER 2000

Regina v Joe Michael CARBONE

The appellant was convicted of two counts of indecent assault, and one count of aggravated sexual intercourse. The first two counts related to acts committed on 3 December 1996, the further count related to acts committed on 7 August 1997. The jury convicted the appellant upon the uncorroborated evidence of the complainant in relation to some but not all counts in the indictment.
He appealed against the conviction on the grounds that the verdicts were unreasonable or incapable of being supported having regard to the evidence.
HELD (allowing the appeal):
1. The Court of Criminal Appeal is not bound to act in accordance with the opinions expressed by a trial judge as to whether or not, upon the evidence, they would have found an accused person guilty. Nevertheless, the Court should give careful consideration to the remarks of the trial judge, particularly where the remarks are from a judge with considerable experience.
2. The prosecution case lacked probative force and was tainted by a number of matters of disquiet relating to the prosecution evidence, including the lack of direct corroboration by those witnesses who might be expected to have seen the sexual misconduct alleged.
M (1994) 181 CLR 487 applied
3. Where a multiple count sexual assault case involves a single complainant and single accused, and the only direct evidence of the commission of the offences is that of the complainant and there is an acquittal on any of those charges, then in the absence of an acceptable explanation, an acquittal on the remaining charges will normally be required.
This is because the rejection of the complainant’s evidence damages his or her overall credibility, and cannot be overcome without some circumstance or fact which provides a rational basis for accepting the complainants evidence in regard to the other counts. This may be the case where the evidence is stronger for the count upon which…

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 [2000] NSWCCA 387
Case: [2000] NSWCCA 387
Decision Date: 3 November 2000

CaseChat Overview and Summary

In the case of R v Carbone, the respondent, who was convicted of multiple counts of sexual assault, appealed against his conviction. The conviction was based on the uncorroborated evidence of the complainant, who alleged that the respondent had committed a series of sexual assaults against her over a period of time. The trial judge found the respondent guilty on all counts, but the Court of Appeal was required to determine whether the verdicts were unreasonable or incapable of being supported having regard to the evidence. The Court of Appeal found that the evidence was of such a nature that it was lacking in probative force and that the verdicts of acquittal were open on the evidence.

The legal issue before the court was whether the verdicts of the trial judge were unreasonable or incapable of being supported by the evidence. The court considered whether the verdicts were conflicting or inconsistent and whether they could be supported by the evidence presented. The court found that the evidence was such that it was lacking in probative force and that the verdicts of acquittal were open on the evidence. The court also considered the impact of uncorroborated evidence of the complainant and whether the verdicts could be supported by such evidence.

The Court of Appeal found that the evidence was of such a nature that it was lacking in probative force and that the verdicts of acquittal were open on the evidence. The court found that the verdicts of the trial judge were unreasonable or incapable of being supported having regard to the evidence. The court found that the verdicts were conflicting or inconsistent and that they could not be supported by the evidence presented. The court found that the uncorroborated evidence of the complainant was not sufficient to support the verdicts of the trial judge. The court allowed the appeal and quashed the conviction of the respondent.

The Court of Appeal ordered that the verdicts of the trial judge be quashed and that the respondent be acquitted of all counts of sexual assault. The court found that the evidence was of such a nature that it was lacking in probative force and that the verdicts of acquittal were open on the evidence. The court found that the verdicts of the trial judge were unreasonable or incapable of being supported having regard to the evidence. The court found that the verdicts were conflicting or inconsistent and that they could not be supported by the evidence presented. The court found that the uncorroborated evidence of the complainant was not sufficient to support the verdicts of the trial judge. The court allowed the appeal and quashed the conviction of the respondent.

Orders