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R v Cardamone

R v Cardamone

Case [2007] VSCA 77 3 May 2007

Rape

Threats to kill

Threats to inflict serious injury

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 386 of 2006

THE QUEEN
	v
MICHAEL CARDAMONE

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JUDGES:	WARREN CJ, NETTLE and NEAVE JJA
WHERE HELD:	WANGARATTA
DATE OF HEARING:	28 March 2007
DATE OF JUDGMENT:	3 May 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 77

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CRIMINAL LAW – Rape – Indecent acts with child under age of 16 – Threats to kill – Threats to inflict serious injury – Evidence – Consciousness of guilt – Lies – Crown not contending lies bespoke evidence of guilt – Whether Edwards direction nevertheless necessary – Whether Zoneff direction adequate – Whether reasonable possibility of failure to give Edwards direction affecting verdict – Edwards v The Queen (1993) 178 CLR 193, Zoneff v The Queen (2000) 200 CLR 234, considered; Dhanhoa v The Queen (2003) 217 CLR 1, applied – Appeal dismissed.

CRIMINAL LAW – Sentencing – Cumulation – Error to cumulate sentences for threats with sentences for offences effected by means of threats – Appeal allowed - Re-sentenced to a total effective sentence of nine years with non-parole period of six years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC with Mrs C M Quin	Ms A Cannon Solicitor for Public Prosecutions
For the Respondent	Mr M J Croucher	Vaccaros

WARREN CJ:

The applicant seeks leave to appeal against his conviction in the County Court sitting at Wangaratta of threats to inflict serious injury and to kill, sexual penetration, permitting an indecent act with a child under 16 and rape. The applicant also seeks leave to appeal against sentence.

The applicant worked as a tobacco farmer with his parents near Myrtleford. The farm consisted of a house and sheds and two caravans to accommodate seasonal workers together with a toilet and bathroom facility located in a shed nearby. At the time of the offences the complainant, a 15 year old girl, lived with her boyfriend in one of the caravans. The complainant’s boyfriend worked on the tobacco farm as did three other workers at the time. The complainant did not work there. The complainant and her boyfriend had lived at the farm for two months prior to the offending in one of the caravans. Whilst her boyfriend was working, the complainant would mostly stay in their caravan sleeping or playing electronic games. She was not entirely happy with that state of affairs and would argue with her boyfriend. She wanted to leave the tobacco farm and he wanted to stay. Sometimes in the evenings the applicant would join the workers and the complainant in the caravan and smoke marijuana.

On the evening of 17 March 2005 the applicant, the complainant, her boyfriend and other resident workers sat around in the caravan talking and smoking marijuana until the early hours of the next morning and went to bed very late. The applicant went home to his parents’ house on the property. The next morning, at about 7:15am on 18 March 2005 the applicant returned to the…

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 Cardamone

Details

AGLC: R v Cardamone [2007] VSCA 77
Case: [2007] VSCA 77
Decision Date: 3 May 2007

CaseChat Overview and Summary

In the case of R v Cardamone, the appellant was convicted of multiple serious criminal offences including rape and indecent acts with a child under the age of 16, as well as threats to kill and inflict serious injury. The High Court of Australia was asked to review the conviction and sentencing decisions made by the lower courts. The central legal issues in this appeal pertained to the admissibility of certain evidence and the appropriateness of the sentence handed down.

The court examined whether the trial judge was required to give an Edwards direction, which instructs the jury to consider whether a lie told by a defendant indicates consciousness of guilt, in the context of the appellant's untruths. The Crown did not argue that the lies themselves were evidence of guilt, but the court considered if such a direction was still necessary. The court concluded that a Zoneff direction, which allows the jury to consider all evidence, including lies, in assessing the credibility of the defendant, was sufficient in this case. The court determined that there was no reasonable possibility that the failure to give an Edwards direction could have affected the verdict.

The court also addressed the sentencing issue, specifically whether it was appropriate to cumulate the sentences for the threats with the sentences for the offences that were effected by means of those threats. The court found that cumulation was not appropriate and allowed the appeal on this ground. The appellant was re-sentenced to a total effective sentence of nine years with a non-parole period of six years. The appeal concerning the conviction was dismissed, but the appeal concerning the sentence was allowed, leading to a revised sentencing outcome.

Orders