R v Carbone [2016] NSWSC 1591

Supreme Court New South Wales

Medium Neutral Citation: R v Carbone [2016] NSWSC 1591 Hearing dates: 7 and 8 November 2016 Date of orders: 08 November 2016 Decision date: 08 November 2016 Before: Davies J Decision: Refuse the application under s 65 Evidence Act to admit the statement of Kale Turner dated 25 May 2015 Catchwords: CRIMINAL LAW – murder – application by Crown to adduce evidence in statement of unavailable witness – circumstantial case – witness gives significant evidence of admissions inculpating accused – whether admitting statement unfair to accused – whether probative value outweighed by unfair prejudice – unfair prejudice outweighs probative value

EVIDENCE – hearsay evidence – s 65 Evidence Act - whether witness unavailable – late enquiries to ascertain whereabouts of witness – whether representation against interest of witness – whether representation made in circumstances making it likely it is reliable – induced statement to Crime Commission – witness might be considered an accomplice – statement not demonstrated to be likely to be reliable – statement rejected Legislation Cited: Criminal Appeal Act 1912 (NSW) Evidence Act 1995 (NSW) Cases Cited: R v Kazzi; R v Williams; R v Murchie [2003] NSWCCA 241; 140 A Crim R 545 Sio v The Queen [2016] HCA 32; (2016) 90 ALJR 963 Category: Procedural and other rulings Parties: Crown Diego Carbone (Accused) Representation: Counsel: R Herps (Crown) W Terracini SC (Accused)

Solicitors: Office of the Director of Public Prosecutions (Crown) Tsambas & Co. Solicitors (Accused) File Number(s): 2014/255002 Publication restriction: Publication restricted to the parties until the conclusion of the trial.