CITATION: R v Carbone [2000] NSWCCA 387 FILE NUMBER(S): CCA 60665/99 HEARING DATE(S): 3 October 2000 JUDGMENT DATE:
3 November 2000PARTIES :
Joe Michael Carbone
ReginaJUDGMENT 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 ApplicantSOLICITORS: S.E. O'Connor
Agostino & CoCATCHWORDS: 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 APPEALNo. 60665 of 1999
WOOD CJ at CL
FRIDAY 3rd NOVEMBER 2000
O’KEEFE J
CARRUTHERS AJ
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…
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- AGLC
- R v Carbone [2000] NSWCCA 387
- Case
- [2000] NSWCCA 387
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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