R v Paton [2013] NSWSC 1615

Supreme Court New South Wales

Medium Neutral Citation: R v Paton [2013] NSWSC 1615 Hearing dates: 28 and 29 October 2013 Decision date: 30 October 2013 Jurisdiction: Common Law Before: Button J Decision: Application to order the Crown Prosecutor to add a count to the indictment dismissed. Catchwords: CRIMINAL PROCEDURE - application to amend indictment by defence counsel - whether to insert a new charge on indictment - whether trial judge has power to add count on indictment - whether ss 20 and 21 of the Criminal Procedure Act gives power to add count - application refused Legislation Cited: Criminal Procedure Act 1986 Cases Cited: R v Aldridge (1993) 67 A Crim R 371 R v Beserick (1993) 30 NSWLR 510; 66 A Crim R 419 R v Cameron (1983) 2 NSWLR 66; 8 A Crim R 466 R v Stokes; R v Difford (1990) 51 A Crim R 25 Category: Procedural and other rulings Parties: Regina Christopher John Paton Representation: Counsel: B Hughes SC (Crown) E Wilson SC (defendant) Solicitors: Solicitor for Public Prosecutions (Regina) Pogson Cronin (defendant) File Number(s): 2011/359425

Judgment 1Senior counsel for the accused has made an unusual application. It is, in short, that I order the Crown Prosecutor to add a count to the indictment. The background of the application is as follows. 2On 21 October 2013, the accused was arraigned before a jury panel and me on a single count of murder. At the time he pleaded not guilty to murder but guilty to accessory after the fact of murder. I have been informed that the Crown Prosecutor was aware that that was to take place. That plea was not accepted by the Crown Prosecutor, and the trial has proceeded since then on the count of murder. 3The Crown case in a nutshell is that the accused was complicit in the murder by shooting of the deceased by an associate of the accused. That complicity is founded both upon joint criminal enterprise and separately upon what I call accessorial liability; that is, the form of complicity discussed in the well-known case of R v Stokes; R v Difford (1990) 51 A Crim R 25. In terms of evidence, the Crown case is founded on a number of alleged acts and statements of the accused, many of which are said to have occurred or been made after the shooting. 4At first senior counsel for the accused submitted that accessory after the fact of murder is an available alternative to a count of murder. However, after having reflected on, amongst other things, R v Cameron (1983) 2 NSWLR 66; 8 A Crim R 466, R v Beserick (1993) 30 NSWLR 510; 66 A Crim R 419, and R v Aldridge (1993) 67 A Crim R 371, he came to the position that the only alternatives to a count in an indictment are: (1)those that are specifically available by statute; and (2)those lesser offences that are made up of elements that are entirely included in the elements of the greater offence contained in the indictment. 5I shall refer to the latter alternatives as "included alternatives." Some examples are assault occasioning actual bodily harm and assault, and robbery and larceny. 6He also accepted that, for reasons that do not need to be delved into deeply now, manslaughter is always an available alternative to murder, even though the elements of manslaughter (for example, a manslaughter by way of unlawful and dangerous act) are not always necessarily included in a count of murder. 7In short, senior counsel for the accused accepted that accessory after the fact of murder does not fit within any of those categories of alternatives to a count of murder. I respectfully agree with the position of senior counsel. 8Accordingly, it is clear that he is not seeking to have me leave an alternative count to the jury's consideration and verdict. Rather, he is seeking to have me order the Crown to add a discrete and separate count to the indictment. 9I should note that, quite apart from this application, senior counsel has respectfully invited the Crown Prosecutor to adopt that course, and the Crown Prosecutor has respectfully declined.