Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Carbone (No. 2) [2017] NSWSC 346 Hearing dates: 24 March 2017 Date of orders: 06 April 2017 Decision date: 06 April 2017 Before: Davies J Decision: (1) There be a stay of proceedings against the applicant until the applicant’s costs of $60,000 are paid by the Crown.
(2) Nothing in order (1) prevents:
(a) the fixing or alteration of the trial date;
(b) compliance by the parties with the statutory requirements of the Criminal Procedure Act 1986 (NSW);
(c) the making of any directions by the judge dealing with the Arraignments List.Catchwords: CRIMINAL LAW – procedure – costs – application by the Crown to lead evidence under s 65 Evidence Act – when application refused further application by the Crown to adjourn trial – trial fixed for five weeks - trial adjourned – subsequent application by accused for Crown to pay costs thrown away by adjournment – application for stay until costs paid – whether fault on the part of the prosecuting authorities – whether fault amounted to unfairness to the accused - failure of Crown to arrange witnesses for trial – need for further enquiries that led to adjournment – applications by Crown under s 65 and for adjournment made on first day of trial – what costs reasonably payable – what costs thrown away – cancellation fees by Senior Counsel and solicitor – whether payable - whether costs of Crown’s applications payable Legislation Cited: Criminal Procedure Act 1986 (NSW)
District Court Act 1973 (NSW)
Evidence Act 1995 (NSW)
Legal Profession Uniform Conduct (Barristers) Rules 2015
Supreme Court Act 1970 (NSW)Cases Cited: Lee v Attorney-General for NSW [2017] NSWCCA 27
Petroulias v R [2007] NSWCCA 154
R v Bucksath [2000] NSWCCA 135
R v Carbone [2016] NSWSC 1591
R v Fisher [2003] NSWCCA 41
R v Jonathan Seebag (Court of Criminal Appeal, 16 February 1993, unrep)
R v Kazzi; R v Williams; R v Murchie [2003] NSWCCA 241; (2003) 140 A Crim R 545
R v Michael John Issakidis [2015] NSWCCA 834
R v Mosely (1992) 28 NSWLR 735Category: Costs Parties: Crown
Diego Carbone (Applicant)Representation: Counsel:
Solicitors:
R Herps (Crown)
W Terracini SC (Applicant)
Office of the Director of Public Prosecutions (Crown)
Tsambas & Co. Solicitors (Applicant)
File Number(s): 2014/255002 Publication restriction: Publication restricted to the parties until the conclusion of the trial
Judgment
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The accused Diego Carbone (the applicant) is charged with murdering Bradley Dillon on 11 August 2014. The Crown case is that there was a joint criminal enterprise between the applicant and Antonio Bagnato at least to inflict grievous bodily harm on Bradley Dillon. Mr Bagnato is currently in Thailand and, according to press reports, has been convicted in Thailand of murder in that jurisdiction. He is not standing trial with the applicant.
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The Crown case statement discloses that Mr Dillon became aware of a dispute his sister Cassie Dillon was having with her ex-boyfriend Adrian Riccio over an…
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- AGLC
- R v Carbone (No. 2) [2017] NSWSC 346
- Case
- [2017] NSWSC 346
- Decision Date
CaseChat Overview and Summary
The court held that the fault lay with the prosecuting authorities, as the Crown's applications for leading evidence under s 65 and for adjournment were made on the first day of the trial. The court found that the Crown's failure to arrange witnesses for trial necessitated further enquiries that led to the adjournment. The court determined that the costs reasonably payable included cancellation fees by Senior Counsel and the solicitor, which were deemed payable. However, the court did not find the fault to amount to unfairness to the accused, and therefore, the appellant's application for a stay until costs were paid was dismissed.
In summary, the court found that the fault was on the part of the prosecuting authorities and that the cancellation fees by Senior Counsel and the solicitor were payable. However, the appellant's application for a stay until costs were paid was dismissed, as the fault did not amount to unfairness to the accused. The Crown was ordered to pay the reasonable costs incurred by the appellant due to the fault of the prosecuting authorities.
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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