Citation: R v Jaroslav Larry MURANY [2007] NSWDC 24
Court: District Court of New South Wales
Date: 6 March 2007
Judge(s): Berman SC DCJ
Background
The accused was charged on a two-count indictment with affray and maliciously inflicting grievous bodily harm. The alleged victim had suffered a fractured skull and could not recall what occurred. The only two people present when the injuries were sustained were the accused and the victim, meaning no eyewitness evidence was available for the critical events.
The Crown advanced its case on two alternative and mutually inconsistent factual scenarios. First, the accused punched the victim on the left side of the head, causing him to fall from his bicycle. Second, the victim fell from his bicycle while being chased by the accused, with the accused bearing legal responsibility for that outcome. The second scenario was drawn from a version of events the accused himself had reportedly described to a friend.
The matter came before the District Court for a retrial after a jury at an earlier trial failed to reach a verdict. Before the jury was empanelled, the accused applied under s 17 of the Criminal Procedure Act to have the second count quashed on the basis that it contained a latent duplicity.
Legal Issues
- Whether a single count on an indictment is latently duplicitous where the Crown relies on two alternative and mutually inconsistent factual scenarios to establish the one charge.
- Whether a sentencing judge's inability to determine which factual scenario a jury accepted provides grounds for quashing the count.
- Whether the Crown's approach was distinguishable from established authority permitting cases to be put on alternative factual bases.
Decision
Berman SC DCJ refused the application to quash the indictment. His Honour drew a distinction between two categories of alternative Crown cases: those where the same facts attract different legal consequences (as in R v Cramp), and those where alternative factual scenarios each lead to the same criminal outcome. The present case fell into the second category.
On the sentencing concern, the court acknowledged that a conviction on alternative factual scenarios might leave a sentencing judge uncertain which scenario the jury accepted. However, the court found this was not an insuperable obstacle. R v Cramp and R v Isaacs both illustrated that selecting between alternative factual scenarios at sentence is a well-accepted feature of the division of responsibility between judge and jury.
The court found R v Giam distinguishable. That case turned on the specific language of the offence charged, which referred to the making of a "false statement" in the singular, and involved separate false statements alleged under the one count. Here, by contrast, there was only one set of injuries alleged to constitute grievous bodily harm. The case said to bind the court was R v Serratore, which permitted precisely the kind of alternative factual case the Crown sought to advance.
His Honour also noted the parallel with cases from New South Wales, England and Canada in which accused persons were charged with murder where the Crown could not establish whether the accused killed the victim directly or procured another to do so. In none of those jurisdictions was that factual uncertainty held to prevent the Crown from presenting its case. No legal distinction between those cases and the present one was identified.
Orders Made
- The application to quash the second count on the indictment was refused.
Key Takeaways
- The District Court confirmed that a single count is not latently duplicitous merely because the Crown presents two alternative and mutually inconsistent factual scenarios, provided both scenarios lead to the same criminal outcome.
- A distinction exists between cases where the same facts give rise to different legal consequences (addressed in R v Cramp) and cases where different facts each independently satisfy the elements of the one offence. The latent duplicity objection did not apply to the latter.
- Sentencing difficulty arising from jury ambiguity between alternative factual scenarios does not, of itself, provide grounds to quash a count. R v Isaacs established that selecting between competing factual bases at sentence is a recognised feature of the judge-jury relationship.
- The binding authority in New South Wales on alternative factual scenarios was held to be R v Serratore, consistent with comparable decisions in England (R v Gianetto) and Canada (R v Thatcher).
- R v Giam was confined to its own facts, turning on the singular language of the offence charged rather than establishing any general prohibition on alternative factual bases within a single count.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act (NSW), s 17
Cases
- Royall v The Queen (1991) 172 CLR 378
- R v Cramp (1999) 110 A Crim R 198
- R v Giam (1999) 104 A Crim R 416
- R v Isaacs (1997) 41 NSWLR 374
- R v Serratore (1999) 48 NSWLR 101
- R v Gianetto [1997] 1 Cr App R 1
- R v Thatcher (1987) 39 DLR (4th) 275