Citation: Cargnello v R [2009] NSWCCA 192
Court: New South Wales Court of Criminal Appeal
Date: 16 July 2009
Judge(s): Hodgson JA, Howie J, Fullerton J
Background
The applicant was intercepted at Sydney International Airport in August 2006 carrying a laptop and a portable video recorder. Customs officers seized both devices, and forensic examination revealed material that led to a charge of importing child pornography under the Customs Act 1901 (Cth), based on content found on the laptop.
Over the following years, the proceedings became procedurally protracted. A guilty plea was entered in November 2007 but successfully withdrawn in April 2008. The Crown served successive expert reports, missed directions, and the trial was adjourned on multiple occasions. By March 2009, the Crown indicated no fresh evidence was anticipated.
Shortly after making that representation, the Crown applied to amend the indictment significantly. The proposed amended indictment expanded the original single charge to 12 counts, adding charges relating to material on the video recorder, counts of encouraging child sex tourism under the Crimes Act 1914 (Cth), a count of using the internet to access child pornography under the Criminal Code Act 1995 (Cth), and four counts (counts 8 to 11) based on emails from 2000 found on the laptop. The applicant sought leave to appeal the District Court's decision granting the Crown leave to amend.
Legal Issues
- Whether the primary judge applied the correct onus when permitting the Crown to amend the indictment to include additional counts
- Whether, when the Crown seeks leave to add charges to an indictment, it bears the onus of demonstrating that a single trial on all counts would not unfairly prejudice or embarrass the accused (that is, the matters addressed in s 21(2) of the Criminal Procedure Act 1986)
- Whether the Crown's delays and failures to comply with court directions were so significant as to warrant refusal of the amendment
- Whether the inclusion of counts 8 to 11, which arose from emails predating the 2006 offences by approximately six years, rendered the overall proceedings unfair or oppressive
Decision
The Court accepted the applicant's submission that the primary judge had misplaced the onus. Where the Crown seeks to amend an indictment by adding fresh counts, the onus falls on the Crown to satisfy the court that the addition of those counts would not render the proceedings oppressive or unfair. The primary judge appeared to have treated this as a burden resting on the accused, which was an error.
However, the Court did not consider that error warranted a grant of leave to appeal, because on the material before the Court the Crown had in fact discharged that onus. The applicant had known throughout that he faced trial on multiple matters arising from the devices seized in 2006. The Crown's delay and failure to adhere to directions was open to criticism, but was not so serious as to justify refusing leave to amend the indictment.
The Court was satisfied that any prejudice flowing from the Crown's delay in seeking to add counts 8 to 11 could be remedied through appropriate jury directions, including directions warning the jury against propensity or tendency reasoning between the various counts. The Court noted that addressing delay-related prejudice through directions is the usual approach, rather than refusing to permit the charges to proceed. Howie J (with whom Hodgson JA and Fullerton J agreed) was satisfied that no prejudice to the applicant would flow from the counts being tried together that could not be adequately managed at trial.
Orders Made
- The application for leave to appeal is refused.
Key Takeaways
- Where the Crown applies to amend an indictment to include additional charges, the onus rests on the Crown to demonstrate that a single trial on all counts in the amended indictment would not unfairly prejudice or embarrass the accused, and that separate trials are not desirable. This is distinct from the position after an indictment is already presented, where the accused bears the burden of showing prejudice.
- A misapplication of that onus by a primary judge does not automatically lead to a successful appeal. The Court of Criminal Appeal assessed the merits on the material before it and found the Crown had satisfied the relevant standard regardless of the error below.
- Prejudice arising from the Crown's delay in seeking to amend an indictment is ordinarily addressed through jury directions rather than by refusing leave to amend. The Court confirmed that directions warning a jury against propensity reasoning, or alerting them to presumed or identified delay-related prejudice, are the standard mechanism for managing such unfairness.
- In dismissing the application, the Court reinforced that criticism of Crown delay or failure to comply with directions, while legitimate, will not justify refusing amendment where the overall prejudice to the accused remains manageable.
- The inclusion of counts arising from events in a markedly different timeframe (here, emails from 2000 in an indictment otherwise centred on events in 2006) does not in itself render a joint trial unfair, provided the trial judge retains the capacity to give appropriate directions.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), ss 20, 21
- Criminal Appeal Act 1912 (NSW), s 5F
- Customs Act 1901 (Cth), s 233 BAB
- Crimes Act 1914 (Cth), s 50 DB
- Criminal Code Act 1995 (Cth), s 474.19
- Evidence Act 1995 (NSW), s 137
Cases: No cases were cited in the portions of the judgment provided.