R v McKellar [2014] NSWSC 104

Supreme Court New South Wales

Medium Neutral Citation: R v McKellar [2014] NSWSC 104 Hearing dates: 17 February 2014 Decision date: 17 February 2014 Jurisdiction: Common Law - Criminal Before: Button J Decision: The special hearing may proceed on the indictment presented. Catchwords: CRIMINAL LAW - murder - special hearing - additional counts not generally heard in Supreme Court included in indictment - one additional count based on different evidential foundation to count of murder - whether appropriate for Supreme Court to hear additional count Legislation Cited: Criminal Procedure Act 1986 (NSW), ss 21, 23, 128 Criminal Procedure Regulation 2005 Mental Health (Forensic Provisions) Act 1990 (NSW) Supreme Court Practice Note SC CL 2 Category: Procedural and other rulings Parties: Regina Shane Thomas McKellar Representation: Counsel: Mr W Creasey SC (Crown) Ms C Davenport SC (Defendant) Solicitors: Mr M Maher - Office of the Director of Public Prosecutions (Crown) Mr B Mallinson - Blair Criminal Lawyers Pty Limited (Defendant) File Number(s): 2011/180041 2011/167627

Ex Tempore Judgment 1In these proceedings, to state matters succinctly, the preconditions for a special hearing that are contained in the Mental Health (Forensic Provisions) Act 1990 (NSW) have been established. 2In order to commence the special hearing, the learned Crown Prosecutor has presented an indictment that contains three counts. 3The first alleges, in short, the armed robbery of and infliction of grievous bodily harm upon Bruce Wentworth Delany in the town of Bourke on 21 May 2011. Count two alleges that on 23 May 2011, at the same location, the accused murdered the same person. And I understand that the evidential foundation of each of those counts is highly similar. 4As for the third count, I understand from the Crown Prosector that the evidential foundation is somewhat divorced, in that it is founded on cash located upon the accused when he was arrested, and it is not alleged that that cash is the proceeds of the offence alleged in count one. 5That raised a query in my mind (which has been resolved with the assistance of counsel) as to the appropriateness of this Court hearing count three. 6It led me to reflect on s 128 of the Criminal Procedure Act 1986 (NSW) which speaks, in short, of the Chief Justice of the Supreme Court of New South Wales issuing, if his Honour wishes, a Practice Note with regard to whether indictments for particular counts are to be presented in this Court or the District Court of New South Wales. 7There is no need for me to recite the entirety of that section. It suffices to say that it leads one to Supreme Court Practice Note SC CL 2. Clause 14 of that Practice Note makes it clear that indictments for murder are to be presented in this Court. Indeed, the Practice Note refers to the well-known fact that, pursuant to clause 22 of the Criminal Procedure Regulation 2005, the District Court does not have jurisdiction with regard to allegations of murder. 8If that were where matters end, one might be concerned with regard to the presentation of count three in the indictment in this Court. However, clause 16 of the Practice Note is as follows: "Subject to the usual practice as to joinder of counts, an indictment charging an offence under any of the above sections may also contain counts charging other offences." 9That reference to the "usual practice" leads one to s 21 and s 23 of the Criminal Procedure Act. It is quite clear that, with regard to count one, it is the usual practice in such circumstances (namely where it is alleged that a murder was committed and another closely related offence that could have, on its own, been dealt with in the District Court is also alleged) to present an indictment that contains that related count. Accordingly, there is no need for me to discuss count one any further. 10As for count three, I consider that it is the case that, if it were the position that senior counsel for the accused objected to one and the same tribunal of fact determining count three along with counts one and two, there may be some force to such an application to sever that count. 11But the fact is, no doubt for sound reasons, there is no objection by senior counsel for the accused to the indictment in its current form. And I have been informed from the Bar table today that the indictment in its current form has been before the Supreme Court for many months now, and again, no doubt for sound reasons, there has been no objection to its form in the past. 12In short I have satisfied myself that the indictment that has been presented, in light of the position of learned senior counsel for the accused, is appropriate and consistent with the applicable legislation, regulation, and Practice Note of this Court.