AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Supreme Court 8 June 2007

R v Jones & Ors (No 9)

[2007] NSWSC 1160

Also reported as 173 A Crim R 331
Assault & violenceHomicidePublic order & justice offences
APPLICATION TO AMEND INDICTMENT DUPLICITY APPLICATION FOR DIRECTED VERDICT

Citation: R v Jones & Ors (No 9) [2007] NSWSC 1160
Court: Supreme Court of New South Wales, Common Law Division
Date: 8 June 2007
Judge(s): Buddin J

Background

Five accused faced trial in connection with a fatal attack on William Smith and a wounding of Noah Smith Snr at Kangy Angy on 9 October 2005. Four of the accused (Adam Samuel Jones, Adam Jones, Samuel Jones and Elizabeth Jean Jones) were charged with murder and with wounding with intent. The fifth accused, Lydia Jones, faced charges of being an accessory after the fact to each of those offences.

At the close of the Crown case, Buddin J was required to resolve several procedural and evidential issues arising from the form of the indictment as it related to Lydia Jones. Two of those accused (Adam Samuel Jones and Adam Jones) had already pleaded guilty to manslaughter, even though that offence had not been separately charged in the indictment.

  • Whether the counts in the indictment charging Lydia Jones as accessory after the fact were duplicitous, and what amendment was required to cure that defect
  • Whether there was sufficient evidence to support the counts alleging Lydia Jones was an accessory after the fact to the wounding offences
  • Whether the jury could be invited to return an alternative verdict of guilty of accessory after the fact to manslaughter, in the event it acquitted Adam Samuel Jones of murder

Decision

Duplicity and amendment: The Crown Prosecutor accepted that the relevant counts were duplicitous in their drafted form, because they named multiple principals in a way that rendered each count bad for duplicity. The Crown applied under s 20(1) of the Criminal Procedure Act 1986 for leave to amend the indictment by removing the names of Adam Jones, Samuel Jones and Elizabeth Jean Jones from the accessory counts. All accused consented. Buddin J granted leave, confining the counts to the allegation that Adam Samuel Jones alone was the principal offender.

Directed verdicts on counts 5 and 6: An essential element of the accessory after the fact charges relating to the wounding counts was that Lydia Jones knew Adam Samuel Jones had committed those offences. Buddin J found no direct evidence, and no material from which any inference of such knowledge could be drawn. There was nothing to suggest she had any awareness that Noah Smith Snr had even been harmed. Buddin J accordingly directed the jury to return verdicts of not guilty on counts 5 and 6.

Alternative verdict of accessory after the fact to manslaughter: The Crown submitted the jury should be told it could return a verdict of guilty of being an accessory after the fact to manslaughter if it acquitted Adam Samuel Jones of murder. Counsel for Lydia Jones argued this alternative was not open because manslaughter was not pleaded and its elements were not wholly subsumed within those of murder. Buddin J rejected that argument. He noted that manslaughter has long been treated as an alternative to murder without requiring separate pleading, and that this position is supported by longstanding authority.

Buddin J also addressed timing, noting that the possibility of this alternative verdict had been raised at the pre-trial stage before the jury was empanelled, so the parties had been on notice throughout the trial. The only prejudice identified by defence counsel was the risk of a compromised verdict, which Buddin J resolved to address through a specific jury direction. He further noted that under the principle established in R v King, where an alternative verdict is supported by the evidence, the trial judge is bound to leave it to the jury regardless of the accused's position.

Orders Made

  • Leave granted to amend the indictment by removing the names of Adam Jones, Samuel Jones and Elizabeth Jean Jones from the relevant counts
  • Verdicts of not guilty directed on counts 5 and 6 as against Lydia Jones
  • The alternative verdict of accessory after the fact to manslaughter permitted to go before the jury on count 2

Key Takeaways

  • A count charging an accessory after the fact that names multiple principals in a single count is duplicitous and liable to amendment under s 20(1) of the Criminal Procedure Act 1986, with the court's leave or the accused's consent.
  • Where the Crown cannot point to any evidence, direct or inferential, that an accused had knowledge that the principal offender committed a specific offence, a directed verdict of not guilty on the accessory count is appropriate.
  • An alternative verdict of accessory after the fact to manslaughter is available to a jury trying a charge of accessory after the fact to murder, without that lesser offence being separately charged in the indictment, on the basis that the greater includes the lesser.
  • Under R v King (2004) 59 NSWLR 515, where an alternative verdict is open on the evidence, the trial judge is bound to leave it to the jury regardless of the accused's opposition to that course.
  • Raising the possibility of an alternative verdict before empanelment, rather than waiting until after closing addresses, was sufficient in this case to negate any claim of prejudice to the accused from the alternative verdict going before the jury.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 20(1)

Cases:
- 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
- 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