R v John Eric Cargnello - [2009] NSWDC 132

CITATION: R v John Eric CARGNELLO [2009] NSWDC 132
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 1 June 2009

JUDGMENT DATE:
12 June 2009

JURISDICTION: Criminal

JUDGMENT OF: Bennett SC DCJ

DECISION: The Crown is granted leave to amend the indictment in this matter to included the offences charged in Counts 1 though 12 as proposed in the form of Indictment presented upon this application.

CATCHWORDS: CRIMINAL LAW – procedure – information, indictment or presentment – amendment

LEGISLATION CITED: Acts Interpretation Act 1901 (Cth)
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)
Criminal Procedure Act 1986
Customs Act 1901 (Cth)

CASES CITED: R v Giam [1999] NSWCCA 53
R v Isaacs (1997) 41 NSWLR 374
R v Taufahema [2007] HCA 11

PARTIES: The Commonwealth Director of Public Prosecutions
John Eric Cargnello

FILE NUMBER(S): 2007/00016067

COUNSEL: Mr T Game SC (CDPP)
Mr M Thangaraj (Accused)

IN THE DISTRICT COURT
OF NEW SOUTH WALES
CRIMINAL JURISDICTION

BENNETT SC DCJ

Friday 12 June 2009

2007/16067 – R v John Eric CARGNELLO
JUDGMENT ON APPLICATION TO AMEND INDICTMENT

Introduction

1 In this matter the Commonwealth Director of Public Prosecutions has commenced proceedings against the Accused, John Eric Cargnello, for offences related to child pornography.

2 The Crown now seeks leave pursuant to s 20 of the Criminal Procedure Act 1986 to amend the indictment by adding further counts. The Accused opposes the application.

3 The orders sought are set forth in a Notice of Motion filed on 23 March 2009. They are,

1. If required, leave be granted to amend the indictment in this matter pursuant to section 20 of the Criminal Procedure Act 1986,
2. Any other orders that the Court considers appropriate.

4 An affidavit in support of the application sworn by Melissa Catsanos on 23 March 2009 was also filed.

5 In light of the arguments advanced opposing the application it will be necessary to refer to the history of the investigation and the resultant prosecution.

The Development of the Prosecution’s Case

6 The Crown alleges that the Accused entered Australia by way of Sydney International Airport on 31 August 2006, carrying a lap top computer and a portable video player/recorder. Customs officers seized these items for examination.

7 On 5 September 2006 the Accused attended Customs House at the Sydney International Airport and was charged with an offence contrary to s 233BAB(5) of the Customs Act 1901 (Cth). This initial charge alleged the intentional importation of prohibited Tier 2 goods, namely, child pornography, in the form of digital images, video recordings, written text, and digital images attached to email, all of which were stored on the lap top computer.

8 The investigation undertaken included the submission of the lap top computer and the video player/recorder to Mr Colin Bulloch, described as a Customs forensic expert. He examined and interrogated these items.

9 In the Crown submissions in support of this application it is said at paragraph…

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 John Eric Cargnello

Details

AGLC: R v John Eric Cargnello [2009] NSWDC 132
Case: [2009] NSWDC 132
Decision Date: 12 June 2009

CaseChat Overview and Summary

The case of R v Cargnello involved the defendant, John Eric Cargnello, who was charged with multiple offences. The Crown sought to amend the original indictment to include additional charges. This application was made in the relevant court, which was tasked with determining whether the amendment was permissible under the applicable laws. The central legal issue before the court was whether the Crown could amend the indictment to include additional charges after the trial had commenced.

The court considered the principles governing amendments to indictments and the relevant statutory provisions. It was established that amendments to an indictment after the commencement of a trial are generally disfavored, but not strictly prohibited. The court balanced the need for procedural fairness with the overarching goal of ensuring justice is served. It concluded that the proposed amendment was reasonable and would not unfairly prejudice the defendant's case. The court held that the amendment was permissible and granted the Crown leave to proceed with the revised charges.

In light of the above, the court ruled in favor of the Crown's application to amend the indictment. The defendant's rights to a fair trial were not unduly compromised by the amendment, and the court found that the amendment would not prejudice the defendant's ability to mount an effective defense. The court's decision was based on a careful consideration of the legal principles and the specific circumstances of the case. As a result, the Crown was granted leave to amend the indictment as proposed.

Orders

Orders of the court

The Crown is granted leave to amend the indictment in this matter to included the offences charged in Counts 1 though 12 as proposed in the form of Indictment presented upon this application.

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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CITATION:	R v John Eric CARGNELLO [2009] NSWDC 132 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	1 June 2009
JUDGMENT DATE:	12 June 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Bennett SC DCJ
DECISION:	The Crown is granted leave to amend the indictment in this matter to included the offences charged in Counts 1 though 12 as proposed in the form of Indictment presented upon this application.
CATCHWORDS:	CRIMINAL LAW – procedure – information, indictment or presentment – amendment
LEGISLATION CITED:	Acts Interpretation Act 1901 (Cth) Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth) Criminal Procedure Act 1986 Customs Act 1901 (Cth)
CASES CITED:	R v Giam [1999] NSWCCA 53 R v Isaacs (1997) 41 NSWLR 374 R v Taufahema [2007] HCA 11
PARTIES:	The Commonwealth Director of Public Prosecutions John Eric Cargnello
FILE NUMBER(S):	2007/00016067
COUNSEL:	Mr T Game SC (CDPP) Mr M Thangaraj (Accused)