Reported Decision : 173 A Crim R 331 New South Wales Supreme Court CITATION : R v Jones & Ors (No 9) [2007] NSWSC 1160 JUDGMENT DATE : 8 June 2007 JUDGMENT OF : Buddin J DECISION : Leave granted. CATCHWORDS : Application to amend indictment - duplicity - application for directed verdict - availability of alternative verdict of accessory after the fact to manslaughter LEGISLATION CITED : Criminal Procedure Act 1986 R v Cameron [1983] 2 NSWLR 66 R v Carter and Savage (1990) 47 A Crim R 55 R v Hurley & Murray [1967] VR 526 R v King (2004) 59 NSWLR 515 CASES CITED : R v Pureau (1990) 19 NSWLR 372 R v Richards (1877) 2 QBD 311 R v Stone [1981] VR 737 R v Tevendale [1955] VLR 95 R v Winner (1989) 39 A Crim R 180 Winning v The Queen [2003] WASCA 245 PARTIES : Regina Adam Jones FILE NUMBER(S) : SC 2006/2009 COUNSEL : J Pickering (Crown) D Price (Adam Jones) (Accused) SOLICITORS : S Kavanagh (Solicitor for Director of Public Prosecutions) Conaghan Hunter P/L (Adam Jones) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION BUDDIN J Friday 8 June 2007 2006/2009 - Regina v Adam JONES 2006/2010 - Regina v Samuel JONES 2006/2011 - Regina v Elizabeth Jean JONES 2006/2012 - Regina v Lydia JONES 2006/2007 - Regina v Adam Samuel JONES JUDGMENT – (No 9) Matters arising at end of the Crown case concerning counts alleged against Lydia Jones 1 HIS HONOUR: At the end of the Crown case, a number of issues arose concerning the form of the indictment in relation to the counts involving Lydia Jones. The accused Adam Samuel Jones, Adam Jones, Samuel Jones and Elizabeth Jean Jones are each charged with the murder of William Smith. It is alleged that each was a party to, and participated in, a joint criminal enterprise the purpose of which was to attack the deceased with either an intention to kill or to inflict grievous bodily harm upon him. 2 They are also each charged with having wounded Noah Smith Snr with intent to kill him. The Crown case is that each of the four accused was party to, and participated in, a joint criminal enterprise which had that purpose. In the alternative to that charge, each of them is also charged with wounding Noah Smith Snr with the intention of inflicting grievous bodily harm upon him. 3 The accused Lydia Jones is charged with being an accessory after the fact to these offences. Count 2 in the indictment is in the following terms: On 9 October 2005 at Kangy Angy in the State of New South Wales Adam Samuel Jones, Adam Jones, Samuel Jones and Elizabeth Jean Jones did murder William Smith and that Lydia Jones knowing the said Adam Samuel Jones, Adam Jones, Samuel Jones and Elizabeth Jean Jones to have committed the said serious indictable offence of murder of William Smith on 9 October 2005 at Kangy Angy in the state of New South Wales, did assist, maintain, harbour or receive the said Adam Samuel Jones, Adam Jones, Samuel Jones and Elizabeth Jean Jones. 4 Counts 5 and 6 are in the following terms: Count 5: On 9 October 2005 at Kangy Angy in the State of New South Wales Adam Samuel Jones, Adam Jones, Samuel Jones and Elizabeth Jean Jones did wound Noah Henry Smith with intent to murder the said Noah Henry Smith and that Lydia Jones knowing the said Adam Samuel Jones, Adam Jones, Samuel Jones and Elizabeth Jean Jones to have committed the said serious indictable offence of wounding with intent to murder Noah Henry Smith on 9 October 2005 at Kangy Angy in the State of New South Wales, did assist, maintain, harbour or receive the said Adam Samuel Jones, Adam Jones, Samuel Jones and Elizabeth Jean Jones. Count 6: On 9 October 2005 at Kangy Angy in the State of New South Wales Adam Samuel Jones, Adam Jones, Samuel Jones and Elizabeth Jean Jones did maliciously wound Noah Henry Smith with intent to do grievous bodily harm to the said Noah Henry Smith and that Lydia Jones knowing the said Adam Samuel Jones, Adam Jones, Samuel Jones and Elizabeth Jean Jones to have committed the said serious indictable offence of maliciously wounding Noah Henry Smith with intent to do grievous bodily harm to the said Noah Henry Smith on 9 October 2005 at Kangy Angy in the State of New South Wales, did assist, maintain, harbour or receive the said Adam Samuel Jones, Adam Jones, Samuel Jones and Elizabeth Jean Jones. 5 During the course of debate the Crown Prosecutor (who was not, I was informed, responsible for having drafted the indictment) acknowledged that each of those counts was, given the form in which they were drafted, duplicitous. The Crown indicated, when in effect put to an election, that he would seek leave to delete the names of the accused Adam Jones, Samuel Jones and Elizabeth Jean Jones wherever their names appeared in those counts. The application was made pursuant to s 20(1) of the Criminal Procedure Act 1986 which provides that an amendment to an indictment may only be made, after it is presented, with the leave of the Court or with the consent of the accused. As it happened all of the accused consented to the amendment. Leave was duly given and the counts as amended, were confined to an allegation that the principal offences had been committed by the accused's husband, Adam Samuel Jones. 6 The next issue which arose concerned the sufficiency of the evidence in relation to counts 5 and 6. An essential element of each of those offences, which the Crown must prove beyond reasonable doubt, is that the accused Lydia Jones knew that Adam Samuel Jones had committed the offence of wounding Noah Smith Snr with the intention of killing him. There is no direct evidence as to the accused's state of mind in respect of these offences. Nor, in my view, is there any material whatsoever from which an inference could be drawn that she had the requisite knowledge. More fundamentally, there is nothing in the evidence to suggest that the accused had the slightest inkling that Noah Smith Snr had even been harmed, let alone wounded. It was for those reasons that I directed the jury to return verdicts of not guilty in relation to those counts. Accordingly, the only remaining count so far as Lydia Jones is concerned, relates to count 2. For abundant caution the accused was re-arraigned and pleaded not guilty to that count in its amended form. The jury was then sworn to try the accused on that count. 7 That leaves one further matter to be resolved. It is common ground, at least so far as these proceedings are concerned, that if the jury were to acquit Adam Samuel Jones of murder then it follows that the accused Lydia Jones must be acquitted of being an accessory after the fact to murder. The Crown submitted however that the jury should be informed that it was open to them, in those circumstances, to return a verdict of guilty of being an accessory after the fact to manslaughter. 8 The principles which are to be applied are uncontroversial. In R v Winner (1989) 39 A Crim R 180, Roden J, with whom Hunt & Allen JJ agreed said: It is trite law that quite apart from express statutory provisions, a jury may properly return a verdict of not guilty of the offence charged but guilty of a lesser offence. That is in accordance with what is frequently described as the principle that the greater includes the less. It is, however, subject to an important and stringent limitation. That is that such a verdict may only be returned if each element of the lesser offence of which the accused is convicted, is also an element of the greater offence with which he was charged, and has been alleged against him either expressly or by necessary implication in the indictment. (at 181) 9 Mr Terracini SC, who argued the point on behalf of the accused, opposed that course being taken. He conceded of course that such an offence was known to the law. His submission was that it could, and should, have been specifically pleaded as an alternative count in the indictment. In other words, he contended that it was not an alternative count that was available for the jury's consideration on this indictment. He submitted that it cannot be said that each element of manslaughter is also an element of murder and that accordingly it is not a true alternative offence. I have some difficulty accepting this submission given that manslaughter has always been regarded as an alternative count to the charge of murder without having to be specifically pleaded in the indictment. Moreover, both Adam Samuel Jones, his client at trial, and Adam Jones, both pleaded guilty to manslaughter even though it was not charged in the indictment. 10 Be that as it may, it appears that the proposition which Mr Terracini advances is, in any event, directly in the face of long-established authority dating back at least as far as R v Richards (1877) 2 QBD 311. In more recent times there are a number of decisions which also tell against his submission: see R v Carter and Savage (1990) 47 A Crim R 55 and Winning v The Queen [2003] WASCA 245. 11 Although those cases originate from so-called code States which have different statutory schemes dealing with the question of alternative verdicts, there is nothing to suggest that the principles enunciated in those decisions are not of more general application. There is also specific reference in the NSW Bench Book to the fact that a person charged with being an accessory after the fact to murder may be found guilty of being an accessory after the fact to manslaughter. The decision in R v Hurley & Murray [1967] VR 526 is cited as authority for that proposition. Although I must confess that I was unable to locate support for the proposition in the passages in the decision which are the subject of report, I do not think that the principle has been doubted either in Victoria or in New South Wales: see generally R v Tevendale [1955] VLR 95 and R v Stone [1981] VR 737. 12 Mr Terracini referred to a number of authorities which indicate that if the Crown wishes the jury to consider an alternative verdict in the event that they find that the accused is not guilty of the principal offence, it should do so when opening the case to the jury: see R v Cameron [1983] 2 NSWLR 66; R v Pureau (1990) 19 NSWLR 372. The authorities also indicate that, at the very latest, the issue of an alternative verdict must be raised before closing addresses so that the trial judge can then rule on whether or not the delay has caused prejudice to the accused. 13 As it happens, I adverted to the possibility that it was open to the jury to return a verdict on this alternative basis when ruling on an application for a separate trial made on behalf of the accused Lydia Jones before the jury was empanelled. Accordingly, the parties have been on notice about this possibility since the outset of the trial. 14 The only prejudice to which Mr Terracini could point was the possibility that the jury may return a verdict which was compromised. I informed Mr Terracini that I would direct the jury in terms that they must not follow that course. 15 I am far from satisfied that the accused will be prejudiced in having the alternative verdict go before the jury. Moreover, as the Crown pointed out, the maximum penalty for the offence of accessory after the fact to manslaughter is 5 years imprisonment, whereas the maximum penalty for the offence of accessory after the fact to murder is 25 years. 16 In any event, the trend of authority makes it plain that if an alternative verdict is open upon the evidence (as it is in the present case), then a trial judge is bound to leave it to the jury's consideration regardless of the attitude of the accused: see generally, for example, R v King (2004) 59 NSWLR 515. ********** 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.