Carbone v R [2020] NSWCCA 318

Carbone v R [2020] NSWCCA 318

The conviction for murder could not stand because the jury directions and question trail on extended joint criminal enterprise omitted an essential element: that the applicant had to foresee the possibility that the co-accused would intentionally inflict death or grievous bodily harm. This created a false path to conviction for murder. The trial judge also failed to leave manslaughter on a reasonably open basis founded on joint criminal enterprise to commit an unlawful and dangerous act. Those errors caused miscarriages of justice, and neither r 4 of the Criminal Appeal Rules (NSW) nor the proviso in s 6(3) of the Criminal Appeal Act 1912 (NSW) prevented the appeal being allowed.

Jurisdiction
Australia
Judgment Date
15 December 2020
Procedural Posture
Criminal Conviction Appeal / Application for Leave to Appeal Against Conviction in the Court of Criminal Appeal
Outcome
Leave to appeal against conviction granted; appeal upheld; murder conviction quashed; new trial ordered.
Legal Topics
['murder' 'joint Criminal Enterprise' 'extended Joint Criminal Enterprise' 'manslaughter' 'jury Directions' 'circumstantial Evidence' 'miscarriage of Justice' 'conviction Appeal']
['criminal Law' 'criminal Procedure'] ['murder' 'joint Criminal Enterprise' 'extended Joint Criminal Enterprise' 'manslaughter' 'jury Directions' 'circumstantial Evidence' 'miscarriage of Justice' 'conviction Appeal']

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Procedural Posture

Criminal Conviction Appeal / Application for Leave to Appeal Against Conviction in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the directions given as to extended joint criminal enterprise were erroneous because they omitted the need for foresight of the possibility that the co-accused would intentionally inflict death or grievous bodily harm.' 'Whether the directions as to manslaughter were inadequate and erroneous because manslaughter was not left on a basis founded on joint criminal enterprise.' 'Whether the directions on circumstantial reasoning and inferences obscured the standard of proof.']

Ratio Decidendi

The conviction for murder could not stand because the jury directions and question trail on extended joint criminal enterprise omitted an essential element: that the applicant had to foresee the possibility that the co-accused would intentionally inflict death or grievous bodily harm. This created a false path to conviction for murder. The trial judge also failed to leave manslaughter on a reasonably open basis founded on joint criminal enterprise to commit an unlawful and dangerous act. Those errors caused miscarriages of justice, and neither r 4 of the Criminal Appeal Rules (NSW) nor the proviso in s 6(3) of the Criminal Appeal Act 1912 (NSW) prevented the appeal being allowed.

Court Disposition

Leave to appeal against conviction granted; appeal upheld; murder conviction quashed; new trial ordered.

Orders

  • ['Leave to appeal against conviction granted.' 'Appeal upheld.' 'The conviction for murder entered against the applicant is quashed, and a new trial is to be had.' 'The matter is listed in the Arraignments List of the Supreme Court at 10 am on 12 February 2021.']