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. Submissions 10The application of senior counsel has a number of bases. 11First, he submitted that ss 20 and 21 of the Criminal Procedure Act 1986, properly construed, reserve to me the power to make the order sought. 12Secondly, he submitted that a number of cases show that trial Judges have a responsibility to leave counts for the consideration of juries, even despite the opposition of one or both parties. 13Thirdly, he invited my attention to the fact that, in R v Aldridge, Sheller JA said at 377 to 378: "Where before trial or at any stage of the trial it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice: s 365(1) of the Crimes Act. This subsection in its present form was substituted in 1929 and is the same as s 5(1) of the Indictments Act 1915 (Imp). The English courts have construed s 5(1) liberally and held that an indictment may be defective within the meaning of the subsection if it fails to allege an offence disclosed by the depositions or, alternatively, if it alleges an offence not disclosed by the depositions. Further there is no rule of law which precludes the amendment of an indictment after arraignment, either by addition of a new count or otherwise." (emphasis added) 14Fourthly, senior counsel noted that, in his opening, the learned Crown Prosecutor said words to the effect that the evidence would show that the accused was an accessory before, during, and after the fact of murder. Senior counsel for the accused emphasised that much of the evidence relates to events after the shooting, and he submitted that, if the count of accessory after the fact of murder is not on the indictment, the jury may, contrary to my directions, be tempted to return a verdict of guilty of murder on the basis of that evidence, if there is not a count of accessory after the fact of murder before them. 15To the contrary, the learned Crown Prosecutor simply submitted respectfully that I have no power to order him to add or indeed subtract counts from indictments. He also submitted that merely because a person may have undertaken acts that could show that he or she was an accessory after the fact of murder does not preclude him or her from being implicated in the murder itself. Determination 16I respectfully consider that I have no power to order the Crown Prosecutor to add a count to the indictment. In my twenty-seven years of involvement in the criminal justice system, I have never heard of such an order being made. In any event, I consider that it would be inconsistent with the separation of powers under the Westminster system. 17Separately, I do not consider that ss 20 and 21 of the Criminal Procedure Act apply here. They 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." 18To my mind, those sections are to do with defective indictments. There is nothing defective about this indictment, which is perfectly regular and reflective of the Crown allegation geographically and temporally. 19Separately, I consider that those sections are to do with trial Judges permitting amendment on the application of a Crown Prosecutor, not ordering that that occur. 20Thirdly, it is accepted that all of the cases to which I was invited are to do with the leaving of available alternatives, whether they be statutory alternatives, included alternatives, or manslaughter with regard to an indictment containing a count of murder. That is not the case here. 21Finally, in R v Aldridge what was under discussion was the leaving at trial of an alternative offence pursuant to then s 35 of the Crimes Act in an indictment containing a count pursuant to then s 33 of the same Act. And yet the elements of the s 35 offence were not included in the particular variant of s 33 that appeared in the indictment. As one would expect, the conviction on the lesser alternative count was quashed. 22I consider that the remarks of Sheller JA must be read in that context. I certainly do not read them as empowering a trial Judge to order a Crown Prosecutor to place an entirely separate count on an indictment if the Crown Prosecutor does not wish to do so. And it is noteworthy that, in the immediately subsequent paragraph, his Honour spoke of an application by the Crown to amend the indictment, not of the trial Judge ordering such an amendment. 23It follows that I respectfully decline to order the Crown Prosecutor to add a count to the indictment. The trial will proceed with the indictment containing a single count of murder. 24Finally, I respectfully consider that it may well have been inapposite for the accused to plead guilty to accessory after the fact of murder, in light of the foregoing analysis, which is to the effect that it was not available on the indictment averring murder. But that, to my mind, is of no great moment, because it is very likely that, in order for the jury to understand the issues in the trial, I will need to give them some explanation of the attributes of that offence in my summing-up in any event. ********** 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. Decision last updated: 05 November 2013