R v Cardona

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT (On application for costs) 1 HIS HONOUR: In June last year I presided over the trial of Ms Cardona for the murder of her former husband. At the end of the Crown case I gave the jury a direction in accordance with R v Prasad (1979) 23 SASR 161, and Ms Cardona was acquitted. She now seeks a certificate under s 2 of the Costs in Criminal Cases Act, 1967. 2 The terms of such a certificate are set out in s 3(1) of the Act: "3(1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Justice or Justices granting the certificate: (a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings; and

(b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances." 3 It is not suggested that any issue under para (b) of that subsection arises in the present case. The only question which I must determine is that posed by para (a). A helpful summary of authorities on the approach to that question is to be found in the judgment of Simpson J in R v Hatfield [2001] NSWSC 334 at paras 8-11. Although reference was made in submissions to material in the possession of the Crown prior to the trial, it is sufficient for present purposes to consider whether it would not have been reasonable for the prosecution to have instituted the proceedings in the light of the evidence as it emerged at the trial. As Hunt J (as he then was) put it in R v Dunne (unreported, 17 May 1990), I must "put myself in the hypothetical place of the prosecution possessed of knowledge of all the facts which have now become apparent", examining the matter "with the knowledge gained from such an omniscient crystal ball …" (at p 3). It follows that the grant of a certificate would involve no reflection upon the conduct of those having responsibility for the prosecution. 4 The Crown case depended upon the evidence of Lenny Emmanuel Baldacchino, who shot the deceased one night in early August 1985. Ms Cardona was charged as an accessory before the fact, the Crown alleging that the shooting had been at her bidding. 5 It was Mr Baldacchino's evidence that he became intimately involved with Ms Cardona in 1983 after she had separated from the deceased. Her relationship with the deceased had been marred by violence on his part and she feared him. From time to time after the separation he continued to harass and threaten her. In 1985 there was a property settlement in the Family Court which required her to pay him $20,000. 6 According to Mr Baldacchino, the combination of the deceased's behaviour and her financial liability to him led Ms Cardona to talk about having him killed. On a number of occasions she asked Mr Baldacchino to find someone to kill him. He was to offer $5,000 in payment. He said that he approached a friend of his, Mario Gatt, to undertake the task but Gatt refused. He then approached another man, Kenneth Roach, who agreed to do the deed. He gave Roach a rifle and a cash cheque for $2,500 as part payment, but Roach did not perform his part of the bargain and later disappeared with the money and the rifle. 7 In the event, said Mr Baldacchino, Ms Cardona importuned him to kill the deceased himself. On the night in question he went to the deceased's home, armed with a sawn off rifle and a silencer. He got into the house to find that the deceased was not there, and he returned to the home where he lived with Ms Cardona. She was most upset that the killing had not taken place and he agreed to return to the deceased's home. At this time the deceased was there, asleep. Mr Baldacchino shot him through the head. He later disposed of the gun and some other items which might have linked him to the shooting. 8 Police investigation of the shooting bore no fruit until 1997, when Mr Baldacchino came forward to confess his involvement and to implicate Ms Cardona. In the meantime, in 1986, he and Ms Cardona had married and they had a daughter. In the following year they separated and they were later divorced in circumstances which, the Crown accepts, left him harbouring considerable bitterness towards her. In the 1990's he became a Jehovah's Witness and he married a fellow member of that faith in 1996. It was his evidence that, enlightened by his new found religious persuasion, his conscience demanded that he reveal all about the killing to his wife and to the elders of the church. He was advised to go to the police and he did so in May 1997, giving his account of his own involvement and that of Ms Cardona in a lengthy electronically recorded interview. 9 He pleaded guilty to murder in this court, and on 7 July 1998 he was sentenced by Greg James J to imprisonment for 16 years, comprising a minimum term of 8 years and an additional term of 8 years. He gave evidence before his Honour, who described him as "a most impressive witness". His Honour found him to be remorseful and described his confession to police as "full and frank." His Honour concluded that he had been manipulated by Ms Cardona, the relationship being one in which he was "psychologically subservient…". As one would expect, among the matters which earned him leniency were his cooperation with the authorities in disclosing the alleged role of Ms Cardona and his undertaking to give evidence against her. This he did, at the committal proceedings as well as the trial. 10 As I have said, the Crown case turned on Mr Baldacchino's evidence, which was uncorroborated. In assessing his credibility, the fact that he came forward so many years after the killing to confess his involvement is, of course, significant. On the other hand, his hostility towards Ms Cardona cannot be denied. It was put to him at trial that he may well have confessed out of a sense of guilt, but that he had sought to diminish that guilt by falsely implicating Ms Cardona. 11 The information he provided about her and his preparedness to give evidence against her led to a reduction of his sentence, as he expected that it would. Whether or not he received the measure of leniency for which he hoped, the remarks on sentence of Greg James J record a submission by his counsel, supported by the Crown prosecutor, that he should receive "an unusually substantial reduction" of sentence because of his assistance to the authorities. In addition, he stood in jeopardy of being deprived of the leniency which was extended to him if he did not live up to his undertaking to give evidence in accordance with his account to the police: s 5DA of the Criminal Appeal Act. His admitted involvement in the killing, together with the benefit which he earned on sentence because of his implication of Ms Cardona, called for a direction to the jury that his evidence may be unreliable: s165 of the Evidence Act. 12 Senior counsel for Ms Cardona pointed to a number of inconsistencies between Mr Baldacchino's evidence at the trial and the committal, as well as his account to the police. This included some details in his evidence which he had not previously disclosed. It was also said that he was unlikely to have succumbed to the influence of Ms Cardona to commit such a dreadful crime, as his own evidence was that he was not lacking in self-assertiveness. He was a mature man, with a lengthy involvement with firearms, who admitted having assaulted Ms Cardona with his fists and feet at the time of their falling out. 13 In his interview with the police he made no reference to Mr Gatt, although he did in a statement to police a few months later. No such person has ever been located. According to Mr Baldacchino, he had returned to his country of origin, Malta, and police inquiries revealed that a man of that name had travelled to that country from Australia. Accordingly, Mr Baldacchino's evidence of his approach to Mr Gatt could not be tested. As it happens, Gatt is Mr Baldacchino's mother's maiden name and counsel for Ms Cardona suggested that the person to whom he referred as Mario Gatt was a figment of his imagination. 14 All these are matters bearing upon his credibility, falling for the assessment of the jury. If there were no more, I could see no basis for granting the present application. However, there is more. Some aspects of his account were implausible, and other significant details were contradicted by credible evidence from other sources. 15 As I have said, Mr Baldacchino's evidence was that part of Ms Cardona's motive for having the deceased killed was to avoid her obligation to pay him a substantial sum of money by an order of the Family Court. Yet, he acknowledged in cross-examination that he and Ms Cardona had approached the Commonwealth Bank for a loan to meet their obligation, and there was in evidence a letter of June 1985 from the bank to their solicitors confirming approval of that loan. 16 As to his attempted recruitment of Mr Roach, Mr Baldacchino said that the cash cheque for $2,500 which he gave him was drawn on an account held, in his name jointly with Ms Cardona, for the purpose of a cake shop which she was running at the time. I find it surprising, to say the least, that such a payment would have been made in that manner. Bank records relating to that account disclosed that no cheque in that amount had been presented, and that the highest credit balance at any given time was $600. Apparently, this issue was explored in evidence at the committal proceedings. Those records were marked for identification at the trial but, no doubt because of its premature termination, they did not get into evidence. 17 Mr Baldacchino said that it was at the cake shop that he gave Mr Roach the cheque and the rifle, and that this was about a week before he himself shot the deceased (that is, towards the end of July 1985). Indeed, he said that it was around the middle of July that he first rang Mr Roach about the matter. However, there was incontrovertible evidence that the cake shop had burnt down (in circumstances which need not be explored for present purposes) on 7 July. This might be explained by faulty recollection, given the years which elapsed between the killing and his confession to police, but it is another aspect of his account which is contradicted by unchallengeable evidence. 18 According to Mr Baldacchino, the weapon which he supplied to Mr Roach was a .303 rifle which, he acknowledged, was noisy and did not accommodate a silencer. At that time he had the .22 rifle which he himself used to kill the deceased, and to which a silencer could be fitted. He had no satisfactory explanation for not supplying Mr Roach with that weapon. At one stage during his cross-examination he denied having told Mr Roach about it, but at another stage he said that he had offered Mr Roach the choice of the two rifles and that Roach, for reasons best known to himself, had chosen the .303. In addition, he acknowledged that he heard nothing from Roach for an indefinite period of time, during which he made no attempt to contact him to ensure that the killing had been carried out. He said that Ms Cardona did not ask him to do so, saying that she knew that the money had been wasted. He also claimed to have been unconcerned about recovering the .303 rifle. 19 Mr Baldacchino's account of his dealings with Kenneth Roach strains credulity. Mr Roach was located by police and gave evidence at the trial. He acknowledged having known Mr Baldacchino and explained that, for reasons which I need not elaborate, there had been bad feeling between them. He denied that Mr Baldacchino had approached him to kill the deceased, or had given him the cash cheque and the rifle. Very properly, the Crown prosecutor called Mr Roach in his case and, naturally enough, his evidence was not tested by cross-examination. Nevertheless, allowing for that and for the fact that he would be hardly likely to incriminate himself in such a plot, he impressed me favourably as a witness. 20 There is another aspect of Mr Baldacchino's evidence which was contradicted by other evidence called in the Crown case. Ms Cardona and the deceased had a son, David, who was sixteen years old at the time of the killing and was living with her. According to Mr Baldacchino, when he returned to the home after he had shot the deceased and announced that he had done so, David kissed him on the cheek and said, "I love you, mate." David Cardona gave evidence that he had been at the home that night but denied that any such conversation had occurred. He acknowledged difficulties in his relationship with the deceased, but not such as to want him dead. He said of his father, "He wasn't a perfect man but he was all right." On the other hand, he expressed dislike of Mr Baldacchino because, he said, he did not approve of the way he treated his mother. In denying that he had said words to the effect of, "I love you, mate", he added, "I didn't speak to my father like that, let alone that man." 21 Like Mr Roach, Mr Cardona's evidence was not tested in cross-examination and, given his relationship to Ms Cardona, he would have a clear motive to lie. Nevertheless, he also did not impress me unfavourably as a witness. 22 The same cannot be said of Mr Baldacchino. He presented plausibly enough and, as I have said, allowance must be made for the long time which elapsed between the killing and his first acknowledgment of his involvement in it. Before Greg James J, his account was unchallenged and his Honour had no reason to doubt it. In the trial of Ms Cardona, however, it was clear that his evidence could not withstand scrutiny. It is fair to say that, by the time it closed, the Crown case had been dealt a mortal blow. That the jury was prepared to acquit in response to a Prasad direction was not at all surprising. This was truly a case "where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit": Dunne (supra) at p 5. 23 Applying the relevant test, I am satisfied that, if the prosecution had been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings against Ms Cardona. Accordingly, she is entitled to a certificate under s 2 of the Act. **********

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