New South Wales Court of Criminal Appeal CITATION: Cargnello v R [2009] NSWCCA 192 HEARING DATE(S): 16 July 2009 JUDGMENT DATE: 16 July 2009 JUDGMENT OF: Hodgson JA at [1], [31]; Howie J at [27]; Fullerton J at [30] EX TEMPORE JUDGMENT DATE: 16 July 2009 DECISION: Application for leave to appeal is refused. CATCHWORDS: CRIMINAL LAW – Amendment of indictment to include additional charges – Onus on Crown to show that single trial on all charges in indictment would not unfairly prejudice or embarrass the accused and that it is not desirable that there be separate trials. Crimes Act 1914 (Cth), s 50 DB Criminal Appeal Act 1912 (Cth), s 5F LEGISLATION CITED: Criminal Code Act 1995 (Cth), s 474.19 Criminal Procedure Act 1986, ss 20, 21 Customs Act 1901 (Cth), s 233 BAB Evidence Act, s 137 CATEGORY: Principal judgment PARTIES: John Eric CARGNELLO (applicant) Crown (respondent) FILE NUMBER(S): CCA 2007/16067 COUNSEL: A BELLANTO QC/ M THANGARAJ (applicant) M JOHNSTON (Crown) SOLICITORS: Watsons Solicitors and Barristers (applicant) Commonwealth Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2007/00016067 LOWER COURT JUDICIAL OFFICER: J Bennett SC DCJ LOWER COURT DATE OF DECISION: 12 June 2009 IN THE COURT OF CRIMINAL APPEAL CCA 2007/16067 HODGSON JA HOWIE J FULLERTON J 16 JULY 2009 CARGNELLO, John Eric v R Judgment 1 HODGSON JA: On 12 June 2009 Bennett DCJ, pursuant to s 20 of the Criminal Procedure Act 1986, granted leave to the Crown to amend the indictment in proceedings brought against the applicant, so as to include counts 1 through 12 as proposed in a form of indictment presented in the Crown's application. 2 The applicant seeks leave to appeal from that decision pursuant to s 5F of the Criminal Appeal Act 1912. 3 The charges against the applicant originate from events in 2006. On 31 August 2006 the applicant arrived from overseas at Sydney International Airport with a Sharpe laptop and a portable video recorder. These items were seized by customs for examination. 4 On 5 September 2006 the applicant was charged with a single offence falling under the general description of "importing child pornography," this being based on material found on the laptop. This charge was one under s 233 BAB of the Customs Act 1901 (Cth). 5 A report dated 18 December 2006, prepared by a forensics expert Mr Buller, was served on the applicant; and among other things it included an annexure with 130 pages of emails from the computer commencing in 1999, including emails purportedly sent by a person named John Cutter. These included four emails in March 2000, which later became the basis of counts 8 to 11 in the form of indictment. 6 There was a committal hearing in August 2007, and the applicant was committed for trial to take place on 26 November 2007. 7 On 2 November 2007 the Crown served the applicant's then solicitors with a tendency notice, referring to the John Cutter emails. 8 On 28 November 2007 the applicant entered a plea of guilty, but on 17 April 2008 he applied successfully to withdraw this plea. A trial was then listed for 3 November 2008. The Crown sought to vacate that date because of the unavailability through illness of Mr Buller. That date was vacated and a new trial date given, namely 23 February 2009. 9 On 12 November 2008, the Crown was given leave to file a fresh indictment with 4 counts, being 3 separate counts of importing child pornography and one count of importing child abuse material, which dealt separately with different categories of material found on the laptop. The Crown was ordered to serve the evidence on which it relied by 12 December 2008. 10 An expert report by a new expert Mr Daniels was served on that date, but further reports by Mr Daniels were served on 14 January 2009 and 25 February 2009. The trial date was vacated and a new date was fixed for the trial, namely 20 July 2009. 11 On 4 March 2009, when the trial date was fixed, the Crown Prosecutor answered a question from the judge as to whether there was any prospect of fresh material by saying "In the way of evidence no"; but he said there would be graphs, charts etc. It appears that on that occasion a timetable was set by which that additional material would be notified to the defence by 26 June. 12 The subject application to amend the indictment was served on 23 March 2009 and heard on 1 June 2009. The proposed indictment included 3 additional counts similar to the previous 4 counts based on material in the video recorder. It also included 4 counts of an offence that can be described as encouraging child sex tourism, under s 50 DB of the Crimes Act 1914 (Cth), and also one count of using the internet service to access child pornography, this being an offence under s 474.19 of the Criminal Code Act 1995 (Cth). 13 The statutory provisions having some relevance to the Crown's application and to the application before this Court, are ss 20 and 21 of the Criminal Procedure Act 1986, which are as follows: 20 Amendment of indictment (1) An indictment may not be amended after it is presented, except by the prosecutor: (a) with the leave of the court, or (b) with the consent of the accused. (2) This section does not affect the powers of the court under section 21. (3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment. 21 Orders for amendment of indictment, separate trial and postponement of trial (1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case. (2) If of the opinion: (a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of the indictment. (3) If of the opinion that the postponement of an accused person's trial is expedient as a consequence of it having amended an indictment or ordered a separate trial of a count, the court may make such order as appears necessary. (4) An order under this section may be made either before trial or at any stage during the trial. (5) The following provisions apply if an order is made under this section for a separate trial or for the postponement of a trial: (a) if the order is made during the trial, the court may order that the jury be discharged from giving a verdict: (i) on the count or counts in respect of which the trial is postponed, or (ii) on the indictment, as the case may be, (b) the procedure on the separate trial of a count, and the procedure on the postponed trial, are to be the same in all respects (if the jury has been discharged) as if the trial had not commenced, (c) subject to the Bail Act 1978, the court may commit the accused person to a correctional centre. (6) Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes. 14 The primary judge noted arguments for the applicant to the effect that it would be unfair to permit the Crown to proceed on the proposed indictment, because of the Crown's delay in bringing the additional counts, the Crown's delay and breaches of directions in serving evidentiary material, the lack of adequate explanation for these delays, and the prejudice to the applicant in the preparation of the case. 15 The primary judge also noted an argument to the effect that counts 8 to 11 should not be included because of the distinctly different timeframe, and because the offences were of an entirely different nature. 16 In relation to the latter argument, the primary judge asserted that s 21 of the Criminal Procedure Act was not relevant to the present application although, in the light of the arguments developed, it was possible that an application relying on that provision might be pursued before the trial judge. On that basis and having considered the other elements of unfairness and prejudice raised by the applicant, the primary judge considered that the application of the Crown should be granted. 17 On this application, Mr Bellanto QC for the applicant submitted that the primary judge was in error in the way he dealt with issues of the kind dealt with in s 21 of the Criminal Procedure Act. He submitted that if the Crown was seeking leave to amend an indictment so as to include additional charges, the onus was on the Crown to negative issues of the kind raised by s 21(2). He submitted that the applicant could not have a fair trial in relation to the counts concerning the importation in August 2006 if the trial also concerned alleged events occurring in 2000. He submitted that although the events alleged in 2000 could possibly be relevant to the question of the applicant's knowledge of the contents of the computer in 2006, any probative value in relation to the 2006 charges would be outweighed by the danger of unfair prejudice within s 137 of the Evidence Act 1995. He submitted that for that reason, it would be unfair to the applicant to have those counts concerning the events of 2000 included, because that would pre-empt the possibility of the 2000 material being excluded pursuant to s 137 of the Evidence Act. 18 Mr Bellanto submitted that that error of the primary judge, coupled with the unfairness of allowing amendments so prejudicial to the applicant in the circumstances of delays and breaches of directions by the Crown, justified the intervention of this Court so as to at least exclude from the indictment counts 8 to 11. 19 In my opinion, it was incorrect for the primary judge not to address issues of the kind dealt with in s 21 (2) of the Criminal Procedure Act in resolving the Crown's application. In my opinion, where the Crown seeks leave to amend an indictment so as to bring about a position there where there will ordinarily be a single trial of a number of charges included in the amended indictment, the Crown does have an onus to prove that such a single trial would not unfairly prejudice or embarrass the accused and that it is not desirable that there be separate trials. For that reason, in my opinion, on that aspect of the matter there was error by the primary judge, which makes it appropriate for this Court to consider whether a single trial would unfairly prejudicial or embarrass the applicant and whether it is desirable that there be separate trials. 20 In my opinion, on the material presently before this Court, a single trial on all the proposed counts would not unfairly prejudice or embarrass the applicant; and it is not desirable that there be separate trials. 21 The applicant's defence is essentially that he did not know the material in question was on the laptop or the video recorder, and that he was not the author of the emails. In order to seek to prove beyond reasonable doubt that the applicant did have this knowledge and was the author of the emails, the Crown wishes to rely on a whole history of material entered on the laptop throughout the period from about 1999 to about 2006, including material added in intervening years. The Crown wishes to rely on that material in combination with other evidence to make out a circumstantial case, in relation to the 2006 charges, that the applicant knew of the relevant contents of the laptop, and in relation to the 2000 charges, that he was the author of the emails. 22 It may be that there are particular parts of particular emails in respect of which it might be said that the danger of unfair prejudice outweighs the probative value, and if so those parts could be excluded. But in my opinion, this is not the case in relation to the particular emails relied on for the 2000 counts. That view of course is reached merely on the material that is presently before the Court, and it is not a view intended in any way to bind the trial judge. 23 The four particular emails are thus part of the history to which I have referred, which cumulatively may be considered as having substantial probative value. If the trial judge considered that directions were necessary in relation to any possible prejudice, then such directions could be given. 24 One other reason why I have reached the view that I have is that the matters based on the 2000 emails are the more serious charges, so that the perhaps more pressing question is whether the 2006 material could be unfairly prejudicial in relation to the 2000 charges. When one considers the matter in the light of the overall history sought to be relied upon by the Crown, in my opinion, again on the material presently before this Court, it would not be unfairly prejudicial. 25 For those reasons, the error I have identified by the primary judge would not in my opinion affect the result. In respect of the other matters raised before the primary judge and dealt with by him, I do not think there was any error by the primary judge in relation to those discretionary matters. For those reasons I would propose that leave to appeal be refused. 26 One final matter is that we have been told that, despite what was foreshadowed by the Crown in March this year, that there has been further significant evidence served by the Crown on 26 June. I would express no view as to whether this would justify an adjournment of the trial which is presently fixed to commence this Monday. That is a matter that can be considered by the trial judge. 27 HOWIE J: I agree. I would simply add a short comment on the suggestion that His Honour's discretion miscarried in so far as there was delay in the application by the Crown to seek leave to amend the indictment to add counts 8 to 11. The suggestion of unfairness or oppression arising from that delay is mainly in terms of the Crown's failure to comply with directions that had been given to it in relation to the filing of material to be relied upon by the Crown and that by reason of the delay in adding the charges based upon the emails there was occasioned to the applicant irremedial prejudice in conducting his defence to the first counts on the indictment; that is counts 1 to 7 and the indictment as a whole. I am prepared to accept a submission of the applicant that had there been a stay application in relation to the counts on the indictment, the onus would be upon the applicant, that is the accused, to show that unfairness or oppression arose from the charges or the combination of charges on the indictment as amended. I also accept that on the present application the onus fell upon the Crown to satisfy the court that the addition of counts 8 to 11 did not render the proceedings oppressive or unfair in that the applicant would be prejudiced in defending the indictment as a whole. I am prepared to accept an argument that the judge perhaps misplaced the onus in this regard but I do not believe that on the material before this Court the proceedings have been rendered oppressive by the delay in amending the indictment by counts 8 to 11 in view of the fact that the applicant knew he was to stand trial in relation to a number of counts arising from material found on his laptop and the portable video player. While the Crown's delay and its apparent failure to adhere to directions is justifiably open to criticism, it is not of such a degree in my view so as to warrant a refusal to grant leave. The usual way in which the court deals with prejudice caused by delay is to fashion directions to ensure that the jury are made aware of any prejudice arising as a result of that delay either that which can be identified or that which can be presumed by the delay and the jury takes that prejudice into account in deciding whether the Crown has proved the charges beyond reasonable doubt. 28 I am persuaded on the material before the Court that any prejudice flowing to the applicant by delay from the Crown seeking to amend the indictment to add these additional counts can be addressed by suitable directions. Given the nature of the evidence and the identifiable issues to be determined by the jury I am satisfied that no prejudice will flow in the determination of the various counts on the indictment by the inclusion of the other counts. If necessary, although I do not believe it will be likely to arise, the trial judge can give directions to the jury to prohibit any tendency or propensity reasoning flowing between the various counts on the indictment. 29 I agree with the Presiding Judge on the material before the Court the Crown has satisfied this Court that leave should be granted and should have been granted for the amendment of the indictment by the addition of counts 8 to 11. 30 FULLERTON J: I agree with the orders given by the presiding judge. 31 HODGSON JA: The order of the court is the application for leave to appeal is refused. ********** 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. 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