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Supreme Court 17 February 2014

R v McKellar

[2014] NSWSC 104

Homicide
CRIMINAL LAW MURDER SPECIAL HEARING

Citation: R v McKellar [2014] NSWSC 104
Court: Supreme Court of New South Wales
Date: 17 February 2014
Judge: Button J

Background

The accused was the subject of a special hearing under the Mental Health (Forensic Provisions) Act 1990 (NSW), the preconditions for which had been established before proceedings commenced. The Crown presented an indictment containing three counts arising from events in Bourke in May 2011.

The first two counts were closely related: count one alleged armed robbery and infliction of grievous bodily harm on a named victim on 21 May 2011, and count two alleged the murder of the same victim two days later. Both counts shared a substantially similar evidential foundation.

Count three was distinct. It was based on cash found on the accused at the time of arrest, and the Crown did not allege that cash was the proceeds of the offence charged in count one. This separate evidential foundation prompted Button J to examine whether the Supreme Court had jurisdiction to hear count three at all.

  • Whether the Supreme Court had jurisdiction to include count three in the indictment, given that the count rested on an evidential foundation separate from the murder charge.
  • Whether the joinder of count three with counts one and two was consistent with the applicable legislation, regulation, and Practice Note.
  • Whether count three ought to have been severed from the indictment on the accused's application.

Decision

Button J examined section 128 of the Criminal Procedure Act 1986 (NSW), which empowers the Chief Justice to issue a Practice Note governing which counts are to be presented in the Supreme Court versus the District Court. That provision leads to Supreme Court Practice Note SC CL 2, clause 14 of which confirms that murder indictments are to be presented in the Supreme Court. Clause 22 of the Criminal Procedure Regulation 2005 separately confirms that the District Court has no jurisdiction over murder.

Clause 16 of the Practice Note provides that an indictment charging a murder-related offence may also contain counts charging other offences, subject to the usual practice regarding joinder of counts. That usual practice is governed by sections 21 and 23 of the Criminal Procedure Act. Under those provisions, count one (the armed robbery and grievous bodily harm) was unproblematic as a closely related offence to the murder charge.

Count three required closer analysis because of its separate evidential foundation. Button J noted that severance of count three might have had some force if defence counsel had objected to a single tribunal of fact determining it alongside counts one and two. However, senior counsel for the accused raised no objection to the indictment in its current form, and the Court was informed that the indictment had been before the Supreme Court for several months without objection.

In those circumstances, Button J was satisfied that the indictment as presented was appropriate and consistent with the relevant legislation, regulation, and Practice Note.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Supreme Court Practice Note SC CL 2, read with section 128 of the Criminal Procedure Act 1986 (NSW), governs which counts may be included on an indictment presented in the Supreme Court, with clause 16 permitting joinder of additional counts subject to usual joinder practice.
  • Under clause 22 of the Criminal Procedure Regulation 2005, the District Court has no jurisdiction to hear murder charges, anchoring murder indictments firmly in the Supreme Court.
  • Where a count rests on an evidential foundation separate from the murder charge, a severance application may carry some force, but the absence of any objection from defence counsel is a material consideration in the court's assessment.
  • A count joining additional charges to a murder indictment can be appropriate even where its evidential basis differs from the principal count, provided the joinder is consistent with sections 21 and 23 of the Criminal Procedure Act and the Practice Note.
  • The decision is procedural and confined to its specific facts. It does not establish broad principles about the limits of Supreme Court jurisdiction over counts joined to murder indictments.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 21, 23, 128
- Criminal Procedure Regulation 2005 (NSW), cl 22
- Mental Health (Forensic Provisions) Act 1990 (NSW)
- Supreme Court Practice Note SC CL 2, cls 14, 16

Cases: No cases were cited in the judgment.