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Court of Criminal Appeal 14 February 2024

Carbone v R (No 2)

[2024] NSWCCA 7

Homicide
CRIME APPEALS APPEAL AGAINST CONVICTION CIRCUMSTANTIAL EVIDENCE STANDARD OF PROOF OF INTERMEDIATE FACTS INDISPENSABLE INTERMEDIATE FACTS

Citation: Carbone v R (No 2) [2024] NSWCCA 7
Court: Court of Criminal Appeal, NSW
Date: 14 February 2024
Judges: Simpson AJA (leading judgment); Price J and Davies J (agreeing)

Background

The appellant was convicted at a second judge-alone trial (before Garling J in the Supreme Court) of the murder of a man shot and stabbed outside an underground carpark in Leichhardt in August 2014. The Crown's case was entirely circumstantial: there was no direct evidence identifying which of the appellant or his co-participant, Antonio Bagnato, had inflicted the fatal gunshot and stab wounds. The Crown alleged the two men were parties to a joint criminal enterprise to kill or cause grievous bodily harm to the deceased.

A first conviction was quashed by the Court of Criminal Appeal in 2020 and a retrial ordered. At the second trial, the appellant did not dispute that he was present in the carpark at the relevant time. His case was that the Crown could not prove he was party to any agreement to kill or seriously harm the deceased, and could not prove that Bagnato, if he inflicted the injuries, did so pursuant to any such agreement.

The appellant sought leave to appeal against the second conviction on three grounds, none of which challenged the reasonableness of the verdict or disputed that the underlying facts had been established.

  • Whether the trial judge applied an incorrect standard of proof in the fact-finding process, particularly in relation to non-indispensable intermediate facts in a circumstantial case.
  • Whether the procurement and use of weapons were "indispensable intermediate facts" within the meaning of Shepherd v The Queen (1990) 170 CLR 573, requiring proof beyond reasonable doubt before any inference of guilt could be drawn.
  • Whether the trial judge's consideration of manslaughter as an alternative verdict was adequate.

Decision

Ground 1 (standard of proof in fact-finding): The appellant argued the trial judge wrongly applied differing standards of proof to different facts, depending on their significance. The Court rejected this ground. The trial judge correctly approached the circumstantial case by considering the cumulative weight of all relevant circumstances and determining whether, taken together, they established guilt beyond reasonable doubt. No error in the standard applied to individual facts was made out.

Ground 2 (indispensable intermediate facts): The appellant contended that the finding that he had procured a knife was an "indispensable intermediate fact" in the Shepherd sense, requiring proof beyond reasonable doubt rather than on the balance of probabilities. Simpson AJA rejected this. An intermediate fact is only "indispensable" if the absence of evidence to prove it would have meant there was no case to answer. Here, the incontrovertible presence of a knife at the scene, used by one or other of the two men, was sufficient regardless of how it came to be there. The manner of procurement was one of several circumstances weighed together to identify the existence of a joint plan; it was not indispensable to the Crown's case.

Ground 3 (manslaughter direction): Because Grounds 1 and 2 were rejected, leaving the verdict intact, the Court found it unnecessary to address the manslaughter ground.

Orders Made

  • Leave to appeal against conviction granted.
  • Appeal dismissed.

Key Takeaways

  • An intermediate fact in a circumstantial case is only "indispensable" within the meaning of Shepherd v The Queen if, without it, there would have been no case to go to the jury. The threshold is high, and a fact that is merely one of several supporting circumstances does not meet it.
  • Where multiple circumstances are weighed together to establish a joint criminal enterprise, no single supporting circumstance necessarily requires proof beyond reasonable doubt as a standalone indispensable step.
  • In dismissing the appeal, the Court confirmed that the overall standard in a circumstantial case is whether all the circumstances, considered together, exclude guilt beyond reasonable doubt. The standard applies to the ultimate inference, not necessarily to every individual evidentiary building block.
  • No error was established simply because a trial judge attributed different evidential weight to individual facts, provided the final conclusion of guilt was reached to the criminal standard.
  • The Court did not need to address the manslaughter ground once the primary conviction grounds failed, illustrating that grounds directed at alternative verdicts may fall away where the conviction itself is upheld.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 418
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Procedure Act 1986 (NSW), ss 132, 133
- Evidence Act 1995 (NSW), ss 53, 184

Cases:
- Carbone v R [2020] NSWCCA 318
- Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7
- Davidson v R (2009) 75 NSWLR 150; [2009] NSWCCA 150
- Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13