R v Carbone (No. 2) - [2017] NSWSC 346

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 735
Category: Costs
Parties: Crown
Diego Carbone (Applicant)
Representation:
Counsel:
R Herps (Crown)
W Terracini SC (Applicant)
Solicitors:
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

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.
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…

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 (No. 2)

Details

AGLC: R v Carbone (No. 2) [2017] NSWSC 346
Case: [2017] NSWSC 346
Decision Date: 06 April 2017

CaseChat Overview and Summary

In the case of R v Carbone (No. 2), the appellant, Carbone, sought costs from the Crown for expenses incurred due to the Crown's failure to arrange witnesses for trial. This resulted in the trial being adjourned, causing the appellant to incur additional costs. The legal issues before the court were whether the fault lay with the prosecuting authorities, if such fault amounted to unfairness to the accused, what costs were reasonably payable, what costs were considered "thrown away," and whether the cancellation fees by Senior Counsel and solicitor were payable.

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