Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Carbone v R (No 2) [2024] NSWCCA 7 Hearing dates: 18 September 2023 Date of orders: 14 February 2024 Decision date: 14 February 2024 Before: Simpson AJA at [1]; Price J at [91]; Davies J at [92] Decision: 1. Leave to appeal against conviction granted; 2. Appeal dismissed. Catchwords: CRIME – appeals – appeal against conviction – circumstantial evidence – standard of proof of intermediate facts – whether higher standard of proof applies to certain non-indispensable intermediate facts Legislation Cited: 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 Cited: 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 (2006) 258 CLR 308; [2006] HCA 35 The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 Category: Principal judgment Parties: Diego Carbone (Applicant) The Crown Representation: Counsel: T Game SC/R McMahon (Applicant) G Newton SC/S Lind (Crown) Solicitors: Goold Law (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2014/255002 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: [2021] NSWSC 1552 Date of Decision: 10 December 2021 Before: Garling J File Number(s): 2014/255002 Judgment 1. SIMPSON AJA: At just after 5.20 pm on 11 August 2014 Bradley Dillon died on a footpath outside an underground carpark in the Sydney suburb of Leichhardt. He had suffered three gunshot wounds and four stab wounds. On 29 August 2014 the applicant, Diego Carbone, was arrested at Sydney Airport and charged with Mr Dillon's murder. On 12 October 2017, after a jury trial, the applicant was found guilty of Mr Dillon's murder and sentenced to imprisonment for 28 years, with a non-parole period of 21 years, commencing on 23 July 2015. On 15 December 2020 this Court upheld an appeal against the conviction and ordered a new trial: Carbone v R [2020] NSWCCA 318. 2. On 12 October 2021 a second trial commenced in the Supreme Court. Pursuant to s 132(1) of the Criminal Procedure Act 1986 (NSW) the trial was by judge alone (Garling J). On 10 December 2021 Garling J found the applicant guilty of Mr Dillon's murder: R v Carbone [2021] NSWSC 1552. On 14 April 2022 Garling J sentenced the applicant to imprisonment for 24 years commencing on 23 July 2015 with a non-parole period of 18 years: R v Carbone [2022] NSWSC 373. 3. The applicant now seeks to appeal against the conviction. He has not sought leave to appeal against the sentence imposed. He proposes to raise three grounds of appeal against the conviction, none of which raises a question of law alone. The applicant therefore needs leave to appeal: Criminal Appeal Act 1912 (NSW), s 5(1)(b). 4. The Crown's primary case was that Mr Dillon was killed in pursuance of a joint criminal enterprise to which the applicant was a party together with Antonio (Tony) Bagnato. To succeed in that case it was necessary that the Crown establish, to the requisite (criminal) standard, that the applicant and Bagnato agreed to kill or cause grievous bodily harm to Mr Dillon and that Mr Dillon was killed by either the applicant or Bagnato in accordance with that agreement (the joint criminal enterprise case). As an alternative the Crown alleged that the applicant and Bagnato were parties to an agreement to assault Mr Dillon, in the course of which Bagnato intentionally inflicted the fatal injuries in an extension of the agreement, which the applicant anticipated might occur (the extended joint criminal enterprise case). In either case, the applicant would be guilty of murder. 5. There was no direct evidence by which the Crown could establish the terms of any agreement between the applicant and Bagnato. Nor was there any direct evidence that either the applicant or Bagnato had inflicted any of the injuries suffered by Mr Dillon. In each of those respects the Crown case was circumstantial. 6. Bagnato left the country on 13 August 2014 and has not returned. He has never been tried for what the Crown alleges is his part in the killing of Mr Dillon. 7. While the Crown adduced significant evidence to establish that either Bagnato or the applicant inflicted the gunshot and stab injuries on Mr Dillon, it was not in a position to identify which of the two men actually inflicted any of the injuries. It was not necessary that it do so. It was, however, the Crown's position that it was more likely that it was Bagnato who had fired the gunshots. That also was the contention of the applicant. It was the applicant's case at trial that, while he did not dispute that he was present in the carpark when Mr Dillon was shot and stabbed, the Crown could not prove either that he had shot or stabbed Mr Dillon or that (assuming that Bagnato had done so) Bagnato had acted in pursuance of an agreement to which he (the applicant) was a party to kill or inflict grievous bodily harm on Mr Dillon, or to assault him. 8. The defence case, as opened at the commencement of the trial by senior counsel, was that the Crown was unable to prove: (i) that the applicant and Bagnato were parties to a joint criminal enterprise the object of which was to kill or cause grievous bodily harm to Mr Dillon; or (ii) that Bagnato shot and stabbed Mr Dillon in accordance with that agreement; or (iii) that the applicant and Bagnato were parties to a lesser agreement, the object of which was to assault Mr Dillon; or (iv) that the applicant anticipated the possibility that Bagnato might, in the execution of any such agreement, intentionally kill or cause grievous bodily harm to Mr Dillon. In common with the Crown case, it was the defence case that the evidence strongly suggested that it was Bagnato who caused Mr Dillon's fatal injuries. 1. Defence senior counsel also, in opening, raised a question as to the possibility that a third person was involved. At a late stage in the trial senior counsel also raised a question, pursuant to s 418(2)(a) of the Crimes Act 1900 (NSW), as to whether the Crown was able to prove that Bagnato did not believe that his conduct in stabbing Mr Dillon was necessary to defend the applicant; if the Crown could not exclude such a belief in Bagnato, senior counsel contended, the applicant was entitled to acquittal on the principles of self-defence (or defence of another). 2. In his closing submissions, senior counsel also raised for consideration the question of manslaughter, on the basis that Mr Dillon's death was caused by Bagnato by the commission of an unlawful and dangerous act to which the applicant was party. 3. A great deal of the evidence on which the Crown relied was not disputed. It will be necessary, however, in due course to set out in some detail the basic factual material on which the Crown case rested. Grounds of appeal 1. The applicant proposes three grounds of appeal, pleaded as follows: Ground 1: The trial judge erred in his approach to fact finding (including the drawing of inferences) and the burden and standard of proof. Ground 2: The trial judge erred by failing to identify the procurement and use of weapons as 'indispensable' intermediate facts. Ground 3: The consideration of (and direction in relation to) manslaughter was inadequate. 1. The reference in Ground 2 to "indispensable intermediate facts" is a reference to the decision of the High Court in Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 ("Shepherd"). In that case the High Court corrected a widespread perception that, in Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7, the Court had decreed that, in a circumstantial case, every fact on which the Crown relied had to be proved beyond reasonable doubt before an inference of guilt could be drawn. In Shepherd the Court held that, in a circumstantial case, a fact which is an "indispensable, intermediate step in the reasoning process" to an inference of guilt must be established beyond reasonable doubt (at 585). An intermediate fact is indispensable if the absence of evidence to prove it would mean that there was no case to go to the jury: Davidson v R (2009) 75 NSWLR 150; [2009] NSWCCA 150 at [74]. 2. By Ground 1 the applicant complained that the trial judge failed to apply differing levels of the standard of proof, depending upon the significance of the fact upon which reliance was placed by the Crown. By Ground 2 the applicant asserted that "the procurement and use of weapons" were "indispensable intermediate facts" (in the Shepherd sense) that were required to be proved beyond reasonable doubt. By ground 3 the applicant complained that the trial judge failed adequately to address the possible alternative verdict of manslaughter as raised by defence counsel in his submissions. 3. No ground of appeal asserts that the verdict of guilty is unreasonable, or cannot be supported having regard to the evidence. Nor does any ground of appeal assert that any of the facts on which the trial judge relied in reaching his verdict had not been established. The complaint made in grounds 1 and 2 is as to the standard of proof applied in the fact-finding process. Background 1. An uncontroversial synopsis of salient events is as follows. 2. Mr Dillon was a part owner and operator of a café in Balmain. Ms Cassie Dillon was his half sister. Ms Dillon was in a relationship with a drug dealer and drug user called Adrian Riccio. Riccio had borrowed (or stolen) money from Ms Dillon, which he had not repaid. Text messages were exchanged between Ms Dillon and Riccio that became hostile and threatening. Others became involved. Riccio made threats against Ms Dillon. Ms Dillon threatened to involve Riccio's mother, resulting in a further threat by a friend of Riccio's to Ms Dillon. 3. Ms Dillon sought the assistance of Bagnato, who was a member of a group known as the St Michael's Fight Club. Bagnato was the applicant's cousin; they were close companions. The death of Mr Dillon 1. An arrangement was made for the applicant and Bagnato to meet Mr Dillon. The venue ultimately selected was an underground carpark (which, apparently, was little used) under a TAB on the corner of Flood Street and Lords Road Leichhardt. The meeting took place at about 5.25 pm on 11 August 2014. 2. At about 5.36 pm Mr Dillon emerged from an exit ramp of the carpark into Lords Road where he collapsed and died. As mentioned above, he had suffered three gunshot wounds (from a 9mm Glock pistol) and four stab wounds. The applicant and Bagnato also emerged from the carpark and ran or jogged away from the location. Events after the meeting on 11 August 2014 1. An extensive investigation of the carpark was undertaken. No weapons were found. Expert ballistics evidence (undisputed) showed that 5 bullets had been fired from the Glock pistol (J [141]–[153]). Bloodstains were found on the concrete floor and on the exit ramp. Also found on the floor of the carpark was a piece of green fabric which, it was not in issue, had been torn from the shirt that the applicant was wearing when he went to the meeting (J [140]). 2. A post-mortem examination showed that both the bullet injuries and the stab injuries had been inflicted on Mr Dillon's back. Bruise marks were seen on both sides of his neck. There were no defensive wounds on his arms. The applicant's DNA was identified in scrapings taken from underneath fingernails of Mr Dillon's left hand. 3. On either 11 or 12 August the applicant contacted a friend, Kale Turner, asking for (and receiving) financial assistance. Mr Turner stated that, in the course of conversation on that occasion, the applicant said: "Some hectic shit went down. We fucked this guy up. We were in a fight with a guy from school. I was into it with this guy. Tones comes in and shot him." 1. It was accepted that the reference to "Tones" was a reference to Bagnato. The applicant told Mr Turner that Bagnato had left the country and that he proposed to do so too. 2. On 13 August Bagnato left Australia and flew to Thailand. He has not returned and is now in custody in Thailand. 3. On 26 August the applicant attempted to leave Australia, also to fly to Thailand, using a ticket he had purchased the previous day. Because his passport was damaged he was unable to leave the country. He obtained, on payment of a priority processing fee, a new passport. On 29 August he checked in to fly to Thailand but was arrested at the airport. At the time of his arrest he had a number of scratches on the left side of his face. The Trial 1. Prior to trial, pursuant to s 184 of the Evidence Act 1995 (NSW), the applicant made a series of admissions, which are substantially reflected in the synopsis above, and the account of evidence which I will set out below. As a consequence of the admissions and the opening address by defence senior counsel, the issues for determination were limited. The applicant did not dispute that he and Bagnato were present in the carpark at the time that Mr Dillon was shot and stabbed, nor that they had left the carpark shortly thereafter. Nor did he dispute the assertion by Kale Turner that he (the applicant) had made the statement set out in [23] above. He did not dispute that he had attempted to leave the country on 26 and 29 August. Importantly, experienced senior counsel who represented the applicant at trial expressly acknowledged that none of the 15 circumstances on which the Crown relied was a circumstance calling for proof beyond reasonable doubt. 2. Pursuant to s 53 of the Evidence Act the trial judge undertook a view of the relevant locations and recorded his observations. The issues for determination 1. In light of the undisputed evidence and the s 184 admissions, a finding that the applicant was present when the fatal injuries were inflicted was inevitable. The only real issues for determination were whether the Crown had proved, beyond reasonable doubt: (i) that the applicant and Bagnato were parties to a joint criminal enterprise the object which was to kill or cause grievous bodily harm to Mr Dillon and that the injuries had been inflicted by either the applicant or Bagnato in pursuance of that agreement; or, alternatively (ii) that the applicant and Bagnato were parties to a joint criminal enterprise to assault Mr Dillon, in the process of the execution of which Bagnato intentionally inflicted the fatal injuries in an extension of the agreement contemplated by the applicant. 1. If either of those was proved, issues raised by defence senior counsel, such as defence of another (Crimes Act, s 418(2)) and manslaughter would not arise for determination. 2. In those circumstances, although it is necessary to provide an overview of the evidence, that can be done concisely. The evidence 1. All of the relevant events took place in a narrow geographic area around a shopping centre known as Leichhardt Marketplace. A good deal, but not all, of the relevant activity was recorded on CCTV in various of the locations. Relatively little depended to any significant extent on the evidence of eyewitnesses. 2. A somewhat abbreviated chronology of events is as follows. 11 August 2014 1. From time to time, commencing at 11.15 am, the applicant and Bagnato were in the company of one another, initially in a Holden Astra motor vehicle driven by Bagnato leaving the carpark of the Marrickville apartment block in which he lived. During the day, a number of telephone calls and at least one text message passed between them. 2. At about (but before) 3.30 pm the applicant encountered Mr Dillon at an auto repair shop where they had a conversation. The evidence does not show anything untoward about the encounter or the conversation. There was no indication whether the encounter was by chance or by design. 3. After the meeting, the applicant returned to a business owned by his family, and located in the Leichhardt Marketplace ("Johnnie's Seafood Shop"). He left the seafood shop at about 4.10 pm via a Loading Dock (Loading Dock 7) and walked in the direction of the underground carpark on the corner of Lords Road and Flood Street. He returned to Johnnie's Seafood Shop. At 4.17 a call which lasted for 87 seconds was made from Bagnato's phone to a phone used by the applicant. At about 4.20 pm Bagnato exited a lift in his apartment block and walked to his car. He was wearing loose fitting trousers (such as track suit pants), a hooded top, and a cap underneath the hood which was raised so as to conceal his face. He was carrying a blue shoulder bag. CCTV film reveals a bulging item in the left pocket of his pants. 4. A mobile phone registered in a false name activated for the first time at about 4.24 pm, coinciding with the exit of the Astra from the Marrickville apartments. That phone became known as the "burner phone" and, although it had no traceable connection to the applicant or to Bagnato, calls from it were thereafter made to Mr Dillon's phone, and calls were made from Mr Dillon's phone to the burner phone (J [104]), including one at 5.06 pm which lasted 58 seconds (J [109]). 5. Bagnato drove to Leichhardt Marketplace and entered Loading Dock 7 where the applicant joined him at 4.51 pm. He had been in the vicinity since 4.42 pm (J [106]). Bagnato then drove the Astra around the vicinity of the Marketplace with the applicant as passenger. During that time, over a 4 minute period, 3 calls of very short duration were made from the burner phone to Mr Dillon's number (J [108]). 6. Bagnato parked the Astra in a nearby street (Treadgold Street). At about 5.15 pm Mr Dillon arrived at the TAB above the underground carpark. He made a 2 second call to the burner phone. At 5.18 pm a call was made from the burner phone to Mr Dillon's phone. The call was of 6 seconds duration and does not appear to have been answered. Mr Dillon waited, apparently expecting to meet somebody, for about 9 minutes. At 5.20 pm a text message sent from the burner phone to Mr Dillon read "carpark under TAB" (J [113]). At 5.25 pm a call was made from Mr Dillon's phone to the burner phone. That call lasted for 29 seconds. 7. The evidence does not disclose the time at which either Mr Dillon or the applicant and Bagnato entered the carpark. It is incontrovertible that they did so. 8. One witness (who was not challenged) heard raised voices coming from the carpark. She described one voice as "aggressive, threatening and swearing" and as "loud and assertive" but not shouting. The other voice was "considerably quieter". She did not think the participants were having a friendly conversation (J [123]). 9. Shortly after that, that witness (as well as others) saw Mr Dillon, in an injured state, in Lords Road. Two men (who, it was accepted, were the applicant and Bagnato) were seen running from the direction of the carpark (J [121]–[129]). Bagnato was wearing black gloves. (One witness claimed to have seen three men running from the carpark. The trial judge rejected that evidence as inconsistent with that of the majority of eyewitnesses. No issue is taken with that finding of fact). 10. An ambulance was called. Mr Dillon was pronounced dead at 6.08 pm. 11. As indicated above, Bagnato left the country. The applicant made two attempts to leave, but was arrested before he was able to do so. 12. In summary, the uncontroverted (and incontrovertible) facts were: (i) the applicant and Bagnato entered the carpark; (ii) Mr Dillon entered the carpark; (iii) nobody else was present in the carpark; (iv) while in the carpark Mr Dillon suffered gunshot and stab injuries as a result of which he subsequently died; (v) the applicant and Bagnato ran from the scene; (vi) Bagnato left the country immediately after; (vii) the applicant attempted (unsuccessfully) to leave the country. 1. The only available inference from this accumulation of facts was that either the applicant or Bagnato or both inflicted the injuries on Mr Dillon. The precise circumstances of the attack are largely a matter of inference, informed by the evidence of blood stains and ballistics. Precisely what happened in the carpark cannot be known. The remaining question, and the critical one, is what arrangements or agreements brought the applicant and Bagnato (and Mr Dillon) to the carpark. It was certainly a fair, and indeed inevitable, inference that the applicant and Bagnato had some common purpose or understanding as to what they sought to achieve by meeting Mr Dillon. Significant light was cast on that purpose by the presence of a Glock pistol and a knife. The judgment 1. As he was required to do by s 133(2) of the Criminal Procedure Act, the trial judge identified the principles of law that he applied, and stated the facts on which he relied in finding the applicant guilty of murder. No issue is taken with the principles as stated, and, notwithstanding the complaint about the standard of proof applied, no ground of appeal explicitly asserts error in any of the facts found. 2. The trial judge recounted, in some detail, the chronology of relevant events of 11 August, commencing at 11.15 am. He noted, more than once, that the findings of fact were made on the balance of probabilities and that none was said, either by the prosecution or the defence, to be a "relevant 'intermediate fact'" requiring proof beyond reasonable doubt. 3. The trial judge drew a number of inferences from objective facts. For example, there was a period between 4.04 pm (when the applicant left Johnnie's Seafood Shop via Loading Dock 7) and 4.16 pm (when he was seen on the pedestrian crossing at the intersection of Lords Road and Flood Street) when the applicant is not seen on CCTV footage. At J [97] the trial judge observed that that time was sufficient for the applicant to have inspected the area generally for traffic conditions, available street carparking, and any vehicular use of the underground carpark, and then to establish the state of traffic in and around Treadgold Street (where the Astra was eventually parked). There was, however, no explicit finding that the applicant used that time for that purpose. 4. After extensively recounting the evidence, the trial judge began his discussion by rejecting the defence submission that the Crown had not eliminated the reasonable possibility that Bagnato shot and killed Mr Dillon in the course of defending the applicant from an attack by Mr Dillon, as provided for by s 418 of the Crimes Act (J [304]). No issue was taken with that conclusion and it is not necessary to go further into the reasons for the rejection of the submission. 5. Having regard to the submissions made on behalf of the applicant, it is appropriate to record certain of the findings made by the trial judge. 6. From the bruise marks on Mr Dillon's neck, the applicant's DNA under the fingernails of Mr Dillon's left hand, the scratches on the applicant's face and the piece of green fabric from the applicant's shirt found in the carpark, the trial judge was satisfied that Mr Dillon was held by the applicant in a chokehold from behind, and that he reached up with his left hand in an attempt to free himself (J [157]–[159]). 7. From the location of the stab wounds (to Mr Dillon's back) and the absence of defensive wounds on his arms, the trial judge concluded that there was a physical struggle between the applicant and Mr Dillon during which Mr Dillon was stabbed (J [160]–[161]). His Honour however, drew back from an explicit finding that it was the applicant who stabbed Mr Dillon (although he considered that it was open to him to make such a finding). 8. Based on the ballistics evidence, the trial judge was satisfied that Mr Dillon was shot as he attempted to escape from the applicant and Bagnato, having broken free of the chokehold in which he was held. Based on the evidence that Bagnato was wearing black gloves, and the evidence of a bulky item in his pocket as he left his apartment, and his "speedy flight from the jurisdiction", his Honour was satisfied that it was Bagnato who shot Mr Dillon (J [165]). 9. Given that no weapon was found on or near Mr Dillon and that none was found in the carpark, his Honour was satisfied that Mr Dillon was unarmed when he attended the meeting. He was also satisfied that the gun and the knife used to inflict wounds on Mr Dillon were carried away from the scene by the applicant and Bagnato (J [171]). 10. The trial judge was satisfied that the applicant had procured the knife from Johnnie's Seafood Shop in which was kept a large selection of knives (J [276]). 11. The trial judge then turned his attention to whether the Crown had proved the existence of an agreement between the applicant and Bagnato to inflict grievous bodily harm on Mr Dillon. He stated (J [309]) that he was satisfied beyond reasonable doubt that the conduct of the applicant and Bagnato was done by them pursuant to such an agreement. His Honour was satisfied that that agreement was to cause grievous bodily harm to Mr Dillon, and that, pursuant to that agreement, Mr Dillon was killed. 12. The trial judge identified 12 circumstances on the basis of which he concluded that the purpose of the agreement was to cause grievous bodily harm to Mr Dillon (J [272]). Put shortly, among those circumstances were: (a) after an 80 second telephone call with the applicant, Bagnato left his apartment at 4.17 pm, with a heavy object in the left pocket of his pants, wearing a top with a hood so arranged as to conceal his face; (b) a mobile phone registered in a false name was activated at about the time Bagnato left his apartment; this phone was used in contacts between the applicant and Bagnato on the one hand, and Mr Dillon on the other and used (his Honour inferred) to make arrangements for the meeting at the carpark; (c) Bagnato picked up the applicant at Loading Dock 7, a location out of sight of the general public; (d) the calls between the burner phone and Mr Dillon were made at a time when the applicant and Bagnato were in the Astra together; (e) two weapons – a Glock pistol and a knife – were taken to the meeting; (f) the Astra was parked in a location (Treadgold Street) from which a quick exit could be made; (g) the underground carpark was not open to be looked at by passers-by and had no CCTV coverage. 1. The conclusion reached by his Honour beyond reasonable doubt, that the applicant and Bagnato had agreed to cause grievous bodily harm to Mr Dillon, and that, pursuant to that agreement, Mr Dillon was killed, made it unnecessary for his Honour to consider the Crown's alternative case, which depended on the principles of extended joint criminal enterprise, and unnecessary to address the various alternative scenarios postulated on behalf of the applicant. (Had the trial been by jury, it would, of course, have been necessary to direct the jury with respect to those alternative scenarios. But, in a judge-alone trial, once a finding of guilt on the primary case was made, there was no need to go further). The application for leave to appeal 1. It is important at this stage to recognise the distinction between grounds 1 and 2 as pleaded. By ground 2, to which I will come, the applicant has identified one (or possibly two) circumstances he contends to be "indispensable" in the Shepherd sense. That is not the import of ground 1. A central submission under ground 1 was: "36 … it would be illogical to conclude that a fact or inference which is highly significant (whether or not 'indispensable') would not require careful consideration as to the cogency of the evidence required to establish the fact or inference." 1. It is also important to emphasise that, at least by the close of the evidence in the trial, and on appeal, there was and is no issue that the applicant and Bagnato were present in the carpark when the fatal injuries were inflicted and that one or other or both of them inflicted the fatal injuries. The only issue is whether the Crown established to the requisite standard that the applicant was there pursuant to an agreement with Bagnato to kill or cause grievous bodily harm to Mr Dillon. Ground 1 1. The ground as pleaded is somewhat opaque. To repeat, it complains that: "The trial judge erred in his approach to fact finding (including the drawing of inferences) and the burden and standard of proof." 1. As emerged from the written and oral submissions the focus of the argument was the trial judge's repeated statements that the findings of fact he made en route to his ultimate conclusion (which was expressed to be beyond reasonable doubt) were made on the balance of probabilities. It was submitted that facts or inferences that do not qualify as "indispensable intermediate facts" in the Shepherd sense may nevertheless have a significance that calls for a greater degree of attention. 2. It was submitted (at [28]): "The principles which apply to circumstantial cases, it is submitted, support a holistic and qualitative approach to the reasoning process. All of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence: The Queen v Baden-Clay (2006) 258 CLR 308; [2006] HCA 35 at [47]. The evidence must be considered as a whole: Shepherd v The Queen … and not by a piecemeal approach to each particular circumstance: The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [46]. Individual items of evidence, on their own inadequate to found a conviction, may take strength from other items: Davidson v R [2009] NSWCCA 150 at [61]." I accept that as an accurate statement of legal principle. It is in accordance with observations of Dawson J (with whom Mason CJ was "in general agreement", and with whom Toohey and Gaudron JJ agreed) in Shepherd (see 580). 1. It was then submitted that the trial judge adopted "a mechanical rather than a qualitative approach" to the fact-finding exercise. I do not accept that proposition. A fair reading of the reasons as a whole shows that the trial judge carefully considered all of the evidence and reached his conclusion on the basis, not of individual items of evidence, but on the basis of all the evidence in combination. 2. In written submissions counsel identified four instances of what they called "high level inferences" (that is, inferences which directly underpin the ultimate finding of guilt so as to call for a more stringent level of proof than others), which, counsel complained, were found "on the same, uniform standard of proof (balance of probabilities)" applied throughout the fact-finding process. 3. The four instances identified were as follows: (i) the finding (at J [159]) that Mr Dillon was being held by the applicant in a chokehold from behind, during which Mr Dillon reached up with his left hand and, in an attempt to free himself from the chokehold, scratched the applicant's left cheek with his left hand, thus explaining the scratch marks subsequently observed on the applicant's face, and the applicant's DNA under the fingernails of Mr Dillon's left hand; (ii) the conclusion (at J [161]) that there was a physical struggle between the applicant and Mr Dillon during which Mr Dillon was stabbed. (The trial judge noted that a finding that it was the applicant who stabbed Mr Dillon was not essential to proof of the Crown case and expressly refrained from making such a finding); (iii) the finding (at J [165]) that Mr Dillon was shot as he attempted to escape, having broken free of the chokehold in which he was held, and during which it was likely that he was stabbed; (iv) the finding (at J [171]) that Mr Dillon was not carrying a weapon with him when he attended the meeting, and the further finding that the gun and the knife used in the encounter were carried away by the applicant and Bagnato. 1. A fifth finding, which is the subject of ground 2, of which complaint was also made under this ground, is at J [276], to the effect that the knife that was used to stab Mr Dillon was procured by the applicant as he walked through Johnnie's Seafood Shop on his way to the meeting with Bagnato at Loading Dock 7. I will deal with this finding under ground 2. 2. Counsel did not explain why these findings were "high level inferences". But as I shall show, they were not. The first (that Mr Dillon was held in a chokehold by the applicant) contains, I accept, some element of inference, drawing on the DNA evidence and the evidence of scratch marks on the applicant's face, and the evidence of the scrap of green fabric from the applicant's shirt near the location of Mr Dillon's blood on the carpark floor. However, the finding was in no way critical to the ultimate determination which depended, I repeat, on whether the Crown had proved the existence of a relevant agreement between the applicant and Bagnato. The finding at J [159] cast no light on what was the critical question – the purpose of the applicant and Bagnato in arranging the meeting with Mr Dillon. I do not accept that finding (i) was "a high level inference" calling for a higher standard of proof, or a greater degree of cogency, than would otherwise be applicable. 3. Similarly, finding (ii) above is not a "high level inference". That there was a "physical struggle" preceding Mr Dillon's death is of limited significance to the existence of the joint criminal enterprise asserted by the Crown. It is, in any case, a conclusion amply supported by the evidence of the applicant's DNA evidence under Mr Dillon's fingernails, the fabric from the applicant's shirt, and the scratch marks on his face. It was not critical to the ultimate finding of guilt, and was, in any event, plainly open on the evidence. 4. It is difficult to understand the complaint made about the finding at J [165]. The substance of the finding in that paragraph is that it was Bagnato who shot Mr Dillon, doing so as Mr Dillon broke free from the applicant, and attempted to escape. It was the applicant's case at trial that it was Bagnato who was the shooter. That Mr Dillon was shot as he attempted to escape was a reasonable inference from the trajectory of the bullets – all bullets that struck Mr Dillon entered his body from the back. 5. The fourth identified circumstance about which complaint was made is even more difficult to understand. Two findings are involved in the paragraph cited – first, that Mr Dillon was unarmed when he attended the meeting; second, that the gun and knife were taken from the scene by the applicant and Bagnato. 6. Each of these is a matter of clear inference from the surrounding circumstances. No weapon was found on or near Mr Dillon's body, or in the vicinity, and, despite a thorough investigation of the carpark, none was there found. The only alternative, if Mr Dillon had been armed, was that the weapon (whatever it was) was taken from the carpark by the applicant or Bagnato. 7. The second finding, that the gun and the knife used in the attack were taken from the scene by the applicant and Bagnato, was also inevitable. Incontrovertibly, a gun and a knife were used; they were not found with or near Mr Dillon where he collapsed; they were not found in the thorough search of the carpark. There is no explanation for their absence from the scene other than that they were removed by the applicant and/or Bagnato. 8. The dissection of the approach taken on behalf of the applicant to the fact-finding exercise by the trial judge is in direct contradiction of the correct statement of principle concerning that exercise contained in the applicant's own written submissions at [28], extracted above at [64], and of the observations of Dawson J in Shepherd at 580, where his Honour emphasised that: "the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately." Even if it be correct that there is some intermediate standard of proof required of some significant facts in a circumstantial case (a proposition that counsel expressly disclaimed), none of those findings identified by counsel for the applicant falls into that category. 1. A final submission in relation to ground 1 arose out of the rejection by the trial judge of the defence proposition that the Crown had failed to eliminate the reasonable possibility that Bagnato had shot Mr Dillon in defence of the applicant, while Mr Dillon was engaged in a physical struggle with the applicant. Rejection of the proposition depended, in part, on the ballistics evidence. It was contended that the "high level inference" at J [165] "was effectively converted into a finding of proving guilt beyond reasonable doubt", which, it was contended, was erroneous. 2. I do not accept the submission. The finding that the Crown had proved its case beyond reasonable doubt resulted from a consideration of many circumstances, each of which the trial judge found proved on the balance of probabilities. That conclusion did not rest on the finding at J [165] alone. 3. I would reject ground 1 of the proposed appeal. Ground 2 1. By ground 2 the applicant contends that the "procurement and use of weapons" were "indispensable intermediate facts" that the Crown was obliged to prove beyond reasonable doubt in order to sustain conviction. 2. Given the nature of the injuries suffered by Mr Dillon, and the unchallenged finding that nobody other than the applicant, Bagnato and Mr Dillon was in the carpark, there can be no doubt that either or both of the applicant and Bagnato had procured both a gun and knife. Nor was there any doubt that each of those weapons had been used. 3. It may be that the point of ground 2 (although it was not clearly articulated in this way) lies in the trial judge's findings as to which of the applicant and Bagnato procured the weapons. It is apparent that the trial judge was satisfied that it was Bagnato who brought the gun to the scene. That is clear from his description of the bulge in the left hand pocket of Bagnato's pants as he left his apartment. 4. The trial judge made an explicit finding about the procurement of the knife, which he related to the applicant's family business – Johnnie's Seafood Shop. A photograph in evidence showed an array of knives at that business. The CCTV evidence established that the applicant had been at the Johnnie's Seafood Shop immediately before meeting Bagnato at Loading Dock 7. 5. Two findings of the trial judge are material to this ground. At J [276] the trial judge said: "One further matter that to me demonstrates that the Accused was an integral part of these arrangements and the intended criminal enterprise, is that my analysis of what occurred in the Underground Carpark … I am satisfied that the Accused procured the knife which was taken to the meeting – the purpose of which was not for it to be used in self-defence, but for it to be used as part of any assault on the Deceased, with the intention of causing grievous bodily harm to the Deceased. I am satisfied that the Accused procured the knife for the meeting, on the probabilities, because of the circumstances that before going into Loading Dock 7 to be collected by Tony Bagnato, the Accused walked through that part of Jonnie's Seafood Shop where a large number of knives were kept, in circumstances where he had ready access to them, and the removal of one knife would be unlikely to be immediately obvious to [be] detected by others in the shop." 1. And at J [272], in the catalogue of circumstances on which the trial judge relied, his Honour said: "(k) … Given the weapons they were carrying, that intention must have been, at least, to cause grievous bodily harm to the Deceased." 1. Counsel relied on the decision in Davidson, in which it was observed that an "indispensable intermediate fact" is a fact the absence of which would mean that there was no case to go to the jury. 2. I do not accept that the finding that the applicant procured the knife (in the manner described in J [276]) was such a finding. The incontrovertible fact remains that the knife was present at the scene of the killing of Mr Dillon, and was used by one or other of the applicant and Bagnato. The circumstances in which it was procured was not essential to the prosecution case. 3. Further, I do not consider that that finding ought to have been made other than on the balance of probabilities, as the applicant contended in support of ground 1. The circumstance that the applicant procured the knife was but one of a number of circumstances (identified at J [272]) which the judge, correctly, weighed against each other to identify, beyond reasonable doubt, a "clear plan" shared by Bagnato and the applicant to inflict at least grievous bodily harm on Mr Dillon (J [273]). As noted above, those circumstances included the presence of the weapons at the scene of the killing, and the fact that communications with Mr Dillon immediately prior to the killing occurred while Bagnato and the accused were together in the Astra. 4. I would therefore reject ground 2 of the proposed appeal. 5. Rejection of grounds 1 and 2 leaves the verdict of the trial judge intact. That means that it is unnecessary to address ground 3. 6. The orders I propose are: (i) leave to appeal against conviction granted; (ii) appeal dismissed. 1. PRICE J: I agree with the reasons of Simpson AJA and the orders her Honour proposes. 2. DAVIES J: I agree with Simpson AJA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 February 2024