Cargnello v R [2009] NSWCCA 192

Cargnello v R [2009] NSWCCA 192

Although the primary judge erred by not addressing s 21(2) considerations when deciding the Crown's application to amend the indictment, that error did not affect the result. On the material before the Court, a single trial on all proposed counts would not unfairly prejudice or embarrass the applicant and separate trials were not desirable because the 2000 emails formed part of the history on which the Crown sought to rely in its circumstantial case, any particular unfair prejudice could be controlled by exclusion or directions, and the Crown's delay and failures to comply with directions did not create irremediable prejudice.

Jurisdiction
Australia
Judgment Date
16 July 2009
Procedural Posture
Criminal Application for Leave to Appeal Against an Order Granting the Crown Leave to Amend an Indictment / Court of Criminal Appeal Application for Leave to Appeal Under S 5 F From a District Court Decision Before Trial
Outcome
Application for leave to appeal refused.
Legal Topics
['amendment of Indictment' 'additional Charges' 'separate Trials' 'unfair Prejudice or Embarrassment to Accused' 'delay by Crown' 'child Pornography and Child Abuse Material' 'encouraging Child Sex Tourism']
['criminal Law' 'criminal Procedure' 'evidence'] ['amendment of Indictment' 'additional Charges' 'separate Trials' 'unfair Prejudice or Embarrassment to Accused' 'delay by Crown' 'child Pornography and Child Abuse Material' 'encouraging Child Sex Tourism']

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Procedural Posture

Criminal Application for Leave to Appeal Against an Order Granting the Crown Leave to Amend an Indictment / Court of Criminal Appeal Application for Leave to Appeal Under S 5 F From a District Court Decision Before Trial

Legal Issues

  1. 1 ['Whether the primary judge erred by not addressing issues under s 21(2) of the Criminal Procedure Act 1986 when granting leave to amend the indictment to add further counts.' 'Whether the Crown bore the onus of showing that a single trial on all counts would not unfairly prejudice or embarrass the applicant and that separate trials were not desirable.' 'Whether the inclusion of counts based on 2000 emails with counts concerning 2006 importation material would unfairly prejudice the applicant, including by pre-empting a possible Evidence Act s 137 ruling.' 'Whether Crown delay and breaches of directions created unfairness or oppression warranting refusal of leave to amend the indictment.']

Ratio Decidendi

Although the primary judge erred by not addressing s 21(2) considerations when deciding the Crown's application to amend the indictment, that error did not affect the result. On the material before the Court, a single trial on all proposed counts would not unfairly prejudice or embarrass the applicant and separate trials were not desirable because the 2000 emails formed part of the history on which the Crown sought to rely in its circumstantial case, any particular unfair prejudice could be controlled by exclusion or directions, and the Crown's delay and failures to comply with directions did not create irremediable prejudice.

Court Disposition

Application for leave to appeal refused.

Orders

  • ['The application for leave to appeal is refused.']