Disano v Regina [2006] NSWCCA 125

New South Wales Court of Criminal Appeal

CITATION: Disano v Regina [2006] NSWCCA 125

HEARING DATE(S): 13/04/2006

JUDGMENT DATE: 18 May 2006

JUDGMENT OF: McClellan CJ at CL at 1; Hoeben J at 2; Johnson J at 46

DECISION: Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal against conviction - murder - whether jury were misdirected as to provocation under s23(3)(a) of the Crimes Act - rule 4 of the Criminal Appeal Rules.

LEGISLATION CITED: Crimes Act 1900 Criminal Appeal Rules

R v Ita (2003) 139 A Crim R 340 at [90] Papakosmas v The Queen (1999) 196 CLR 297 at 319 CASES CITED: R v Szabo [2000] NSWCCA 226 at [46-49] R v Villa [2005] NSWCCA 4 at [74] R v Wilson [2005] NSWCCA 20

PARTIES: Carmelo Disano - Appellant Regina - Respondent

FILE NUMBER(S): CCA 2005/2375

COUNSEL: Paul Byrne SC - Appellant D Arnott SC - Crown

SOLICITORS: Nyman Gibson Stewart - Appellant S Kavanagh, Solicitor for Public Prosecutions - Crown

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70028/04; 2004/23

LOWER COURT JUDICIAL OFFICER: Knight AJ

LOWER COURT DATE OF DECISION: 13/04/2006

IN THE COURT OF CRIMINAL APPEAL 2005/2375

McCLELLAN CJ at CL HOEBEN J JOHNSON J

Thursday, 18 May, 2006 Carmelo DISANO v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Hoeben J. 2 HOEBEN J: The appellant, Carmelo Disano, was tried on a charge that on 2 January 2004 at Abbotsford in the State of New South Wales he did murder Antonino Basile, the father of his estranged wife. On 8 December 2004 after a trial which lasted thirteen days, the appellant was convicted of the offence of murder. He was sentenced to a term of imprisonment with a non-parole period of 12 years and a balance of term of 5 years. The sentence was to commence on 2 January 2004. 3 The appellant had pleaded not guilty of murder but guilty of manslaughter, but the Crown did not accept the latter plea in discharge of the indictment. The appellant's partial defence relied on a number of alternate grounds.