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Supreme Court 6 September 2012

R v Kevin Gall; R v Bruce Gall (No 4)

[2012] NSWSC 1355

HomicidePublic order & justice offences
CRIMINAL LAW CRIMINAL PROCEDURE INDICTMENT FORM OF INDICTMENT ALTERNATIVE VERDICT

Citation: R v Kevin Gall; R v Bruce Gall (No 4) [2012] NSWSC 1355
Court: Supreme Court of New South Wales
Date: 6 September 2012
Judge: Adamson J

Background

Two accused, brothers, were before the court on charges arising from a homicide. The first accused, Kevin Gall, faced a charge of murder. The second accused, Bruce Gall, was charged under s 349(1) of the Crimes Act 1900 with being an accessory after the fact to that murder, the indictment specifying that he had harboured and assisted Kevin Gall knowing he had committed murder.

At the close of the defence case, Bruce Gall submitted that the jury should not be directed on the alternative verdict of accessory after the fact to manslaughter. His argument was that the indictment, which charged only the murder variant, foreclosed that option.

The ruling arose because, if Kevin Gall were convicted of manslaughter rather than murder, the question became whether Bruce Gall could then be convicted of accessory after the fact to manslaughter, or whether he would simply be acquitted.

  • Whether the form of the indictment, which referred only to murder and cited only s 349(1) of the Crimes Act 1900, excluded the alternative verdict of accessory after the fact to manslaughter.
  • Whether s 349 of the Crimes Act 1900, properly construed, itself excluded such an alternative verdict.
  • Whether the common law principle that a greater charge includes the lesser applies to the accessory-after-the-fact context in a hybrid jurisdiction such as New South Wales.

Decision

Adamson J rejected both grounds of the submission and held that the alternative verdict of accessory after the fact to manslaughter was available on the indictment as drawn.

Her Honour found that the pleading and statutory construction arguments were, in substance, a single point. If s 349 did not exclude an alternative verdict and did not require it to be separately alleged, there was no proper objection to the verdict being left to the jury even though the indictment charged only the murder variant. The absence of a reference to s 350 of the Crimes Act (which covers accessories to other serious indictable offences) did not change this conclusion.

Her Honour confirmed that New South Wales is a hybrid jurisdiction: the common law continues to operate unless abrogated by statute, and neither s 349 nor any other provision of the Crimes Act 1900 or Criminal Procedure Act 1986 displaced the established common law principle that the greater offence includes the lesser. That principle, as articulated in R v Winner (1989) 39 A Crim R 180, permits an alternative verdict where each element of the lesser offence is also an element of the greater and has been alleged expressly or by necessary implication in the indictment.

Adamson J endorsed the reasoning in R v Jones (No 9) [2007] NSWSC 1160, declined to depart from it, and drew support from the English authority R v Richards (1877) 2 QBD 311 and the Queensland decision in R v Carter and Savage [1990] 2 Qd R 371. Her Honour also noted the anomaly that would result if an accused charged with murder could be convicted of manslaughter without a separate count, yet an accessory charged with the murder variant required a specific further allegation to be convicted of the manslaughter variant.

Orders Made

• The alternative verdict of accessory after the fact to manslaughter is available in the event that Mr Kevin Gall is convicted of manslaughter.

Key Takeaways

  • A charge of accessory after the fact to murder carries with it, by operation of common law, the availability of an alternative verdict of accessory after the fact to manslaughter, without any separate count being required in the indictment.
  • The Supreme Court confirmed that New South Wales remains a hybrid jurisdiction where common law principles of criminal liability continue in force unless expressly abrogated by statute, and no provision of the Crimes Act 1900 or Criminal Procedure Act 1986 displaces the principle that the greater offence includes the lesser.
  • Under the principle articulated in R v Winner, an alternative verdict is available where each element of the lesser offence is also an element of the greater, and has been alleged expressly or by necessary implication. Accessory after the fact to manslaughter satisfies this test when the charge is accessory after the fact to murder.
  • The omission from the indictment of a reference to s 350 of the Crimes Act 1900 (the provision covering accessories to other serious indictable offences) did not prevent the alternative verdict from being left to the jury.
  • Following Pemble v The Queen (1971) 124 CLR 107 and R v King [2004] NSWCCA 20, a trial judge bears a correlative duty to direct the jury on any alternative verdict that is a viable outcome on the evidence, and the public interest in a correct verdict supports that approach.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18, 349, 350, 61Q
- Criminal Procedure Act 1986 (NSW), ss 162, 163

Cases
- Pemble v The Queen [1971] HCA 20; 124 CLR 107
- R v Carter and Savage [1990] 2 Qd R 371; 47 A Crim R 55
- R v Elfar [2000] NSWCCA 255; 115 A Crim R 64
- R v Jones (No 9) [2007] NSWSC 1160; 173 A Crim R 331
- R v King [2004] NSWCCA 20; 59 NSWLR 515
- R v Richards (1877) 2 QBD 311
- R v Stone [1981] VR 737
- R v Walsh; R v Sharp [2004] NSWSC 111; 142 A Crim R 140
- R v Winner (1989) 39 A Crim R 180
- Winning v R [2003] WASCA 245