AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 30 October 2013

R v Paton

[2013] NSWSC 1615

Homicide
CRIMINAL PROCEDURE APPLICATION REFUSED

Citation: R v Paton [2013] NSWSC 1615
Court: Supreme Court of New South Wales
Date: 30 October 2013
Judge: Button J

Background

The accused was arraigned on a single count of murder, with the Crown alleging he was complicit in the shooting of the deceased through joint criminal enterprise and accessorial liability. At arraignment, the accused pleaded not guilty to murder but guilty to accessory after the fact of murder. The Crown did not accept that plea, and the trial proceeded on the murder count alone.

Senior counsel for the accused made the unusual application that Button J order the Crown Prosecutor to add a count of accessory after the fact of murder to the indictment. The Crown Prosecutor had already been invited informally to take that course and had declined.

The application arose partly from a concern that, without such a count before the jury, jurors might improperly use evidence of the accused's post-shooting conduct to support a murder verdict, rather than treating it as evidence relevant only to the lesser offence.

  • Whether a trial judge holds the power to order the Crown Prosecutor to add a new, discrete count to an indictment.
  • Whether sections 20 and 21 of the Criminal Procedure Act 1986 (NSW) confer such a power on the court.
  • Whether the observations of Sheller JA in R v Aldridge supported the existence of that power.
  • Whether accessory after the fact of murder is available as an alternative verdict on an indictment charging murder.

Decision

Button J refused the application. His Honour held that no power exists to order the Crown Prosecutor to add a count to an indictment, describing such an order as inconsistent with the separation of powers under the Westminster system. In 27 years of involvement in the criminal justice system, Button J had never encountered such an order being made.

Sections 20 and 21 of the Criminal Procedure Act 1986 did not assist the applicant. Button J read those provisions as concerned with defective indictments and with permitting amendment on the Crown's application, not with compelling the prosecution to act. The indictment in this case was not defective; it was regular and accurately reflected the Crown's case.

The authorities cited by senior counsel all concerned the leaving of available alternatives to the jury, whether statutory alternatives, included alternatives, or manslaughter as an alternative to murder. That was a different question from the one raised here. Accessory after the fact of murder is not an included alternative to murder, because its elements are not wholly contained within the elements of the greater offence.

Button J also read the remarks of Sheller JA in R v Aldridge narrowly. Those observations arose in the specific context of amending a defective indictment at the Crown's instigation, and did not extend to empowering a trial judge to place an entirely separate count on an indictment against the Crown's wishes.

Orders Made

• The trial will proceed with the indictment containing a single count of murder
• Application to order the Crown Prosecutor to add a count to the indictment is declined

Key Takeaways

  • A trial judge in New South Wales has no power to order the Crown Prosecutor to add a count to an indictment; that decision rests with the prosecution, and compelling it to act in that way would be inconsistent with the separation of powers under the Westminster system.
  • Sections 20 and 21 of the Criminal Procedure Act 1986 are directed at remedying defective indictments and at permitting amendments sought by the Crown, not at authorising courts to impose amendments on the prosecution.
  • Accessory after the fact of murder is not an available alternative verdict on a murder count, because its elements are not wholly subsumed within the elements of murder.
  • The observations in R v Aldridge regarding amendment of indictments must be read in context: they addressed the Crown's own application to amend a defective indictment, not a court-imposed addition of a separate charge.
  • Where an accused person tenders a plea to a count that is not available on the indictment as presented, that plea cannot be accepted, though the trial court may still explain the attributes of the relevant offence to the jury in summing up to assist their understanding of the issues.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 20, 21

Cases
- 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