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R v Carle

R v Carle

Case [2010] NSWSC 871 30 August 2010

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CITATION: R v Carle [2010] NSWSC 871

HEARING DATE(S): 28/07/2010, 29/07/2010

JUDGMENT DATE :
30 August 2010

JUDGMENT OF: Buddin J

DECISION: The application for orders that the proceedings against the applicant be temporarily stayed and that his trial be vacated is refused.

CATCHWORDS: CRIMINAL LAW - application for temporary stay - applicant and another person accused of murder and wounding with intent to murder - Crown case is that both offences committed by only one person - Crown case is that the two accused were not acting in concert - some evidence implicates only one of the two accused whilst other evidence implicates only the other accused - Crown elects to try the two accused separately - challenge to Crown's election to try the applicant first - whether election constitutes an abuse of process

LEGISLATION CITED: Evidence Act 1995

CATEGORY: Procedural and other rulings

CASES CITED: Kirk v The Industrial Relations Commission of NSW (2009)) 239 CLR 53
Maxwell v The Queen (1995) 184 CLR 501
MG v R [2007] NSWCCA 57
R v Bellman [1989] 1 AC 836
R v Brown [1989] 17 NSWLR 472
R v Maharaj NSWCCA unreported 1 May 1998
R v Mohan [1967] 2 AC 187
Re K [2002] NSWCCA 374

PARTIES: Regina
Bruno Carle

FILE NUMBER(S): SC 2009/68932

COUNSEL: T Thorpe (Crown)
S Hanley (Accused)

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) (Crown)
Jack Rigg Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

MONDAY 30 AUGUST 2010

2009/68932 - REGINA v BRUNO CARLE
JUDGMENT

1 HIS HONOUR: This is an application brought on behalf of the accused Bruno Carle (whom I shall refer to as the applicant) seeking orders that there be a temporary stay of proceedings which have been instituted against him and an associated order seeking that his trial be vacated. On 2 August 2010 I refused the applications and indicated that I would, in due course, publish my reasons for doing so. These are my reasons.

2 To put the present application in context, it will be necessary to sketch some background details. The applicant and another man, a juvenile named RC who was aged 16 at the relevant time, are each accused of the murder of Charmaine Williams at Canley Vale on 27 February 2009. The applicant is also charged with the attempted murder of Bojan Momirovski. That offence occurred immediately after the fatal incident.

3 When the matter was set down for hearing, the Crown’s intention was that the two accused be tried jointly. Up until that point, the prosecution of the two accused had proceeded separately for reasons that are of no present relevance. In any event, the Crown sought leave at the outset of the present proceedings to add a further count to the indictment against the accused RC, namely that he had attempted to murder Bojan Momirovski. Mr Watts, who appears on behalf of the accused RC, opposed that application.

4 For a variety of reasons, it was…

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 Carle

Details

AGLC: R v Carle [2010] NSWSC 871
Case: [2010] NSWSC 871
Decision Date: 30 August 2010

CaseChat Overview and Summary

The case of R v Carle involved the applicant, Carle, and another individual who were jointly charged with murder and wounding with intent to murder. The Crown alleged that both offences were committed by only one person. The case raised questions about whether the two accused were acting in concert, as the Crown’s case suggested they were not. The evidence presented implicated both individuals differently, with some evidence pointing to the involvement of only one of the accused, and other evidence implicating only the other. Ultimately, the Crown chose to try the two accused separately. The applicant contested the Crown's decision to try him first, arguing that this election constituted an abuse of process.

The court was tasked with determining whether the Crown’s decision to try the applicant first was an abuse of process. This involved assessing whether the Crown's election was motivated by an improper purpose, such as a desire to gain an unfair advantage in the trial or to prejudice the applicant’s right to a fair trial. The court also considered whether there were any grounds for the Crown to believe that trying the applicant first would be more advantageous or would otherwise affect the fairness of the trial. The legal issue centred on whether the Crown's decision was reasonable and justifiable within the parameters of the law.

The court examined the rationale behind the Crown's decision and concluded that it was neither an abuse of process nor unreasonable. The court found that the Crown had legitimate reasons for electing to try the applicant first, such as the availability of evidence and the potential for a more straightforward case against the applicant. The court further determined that trying the applicant first did not prejudice his right to a fair trial and that the Crown's decision was within the acceptable scope of prosecutorial discretion. Therefore, the court upheld the Crown's election to try the applicant first, dismissing the application for a temporary stay.

As a result of the court's decision, the Crown's election to try the applicant first was confirmed, and no temporary stay was granted. The trial proceeded with the applicant being tried first, as per the Crown's decision. The court's ruling underscored the importance of prosecutorial discretion and the need for courts to respect the Crown's decisions in trying cases, provided they are not based on improper motives or unreasonable grounds.

Orders