Director of Public Prosecutions v Gauci (Ruling No 3)
[2025] VSC 321
•11 March 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0050
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| MICHAEL GAUCI | Accused |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 11 March 2025 |
DATE OF RULING: | 11 March 2025 |
DATE OF REASONS | 5 June 2025 |
CASE MAY BE CITED AS: | DPP v Gauci (Ruling No 3) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 321 |
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CRIMINAL LAW – Trial – Attempted murder – Prosecution seeks leave, part-way through its case, to rely on complicity as an additional pathway to guilt beyond the main prosecution contention – Opposed by defence – Expansion of Crown case necessary response to opaque defence case – Application granted – Jury subsequently discharged without verdict by agreement of parties.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A Moran | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr D Dann KC with Mr J Korn and Dr E Kelly | Lewenberg & Lewenberg |
HIS HONOUR:
Introduction
Michael Gauci is charged with attempted murder, intentionally causing serious injury in circumstances of gross violence, and reckless conduct endangering a person (2 charges), following an incident in which he allegedly set his neighbour, Shari Grey (‘Grey’), on fire, causing her devastating physical and psychological injuries, as well as less serious injuries to two others.
Part way through his then-trial, the Crown sought leave to be permitted to rely on an alternative pathway to guilt of the accused, based on the doctrine of complicity. The defence opposed leave being given, and asserted that the prosecution should be confined to the case as opened to the jury.
Having considered written outlines filed in this matter, and the oral submissions of Mr Dann KC, who appeared for the accused in this application only, alongside his trial counsel, I determined that it would be appropriate for leave to be granted to the prosecution to broaden its case. Ms Moran, for the Crown, accepted the defence contention that if leave were granted to the Crown, in fairness to the accused, the trial ought not to continue with the same jury. On that basis, I discharged the jury without verdict, and remanded the accused in custody for a retrial on a date to be fixed.
What follows are my reasons for granting leave to the prosecution to broaden its case.
Background
In the Summary of Prosecution Opening (‘SPO’), dated 23 March 2024, the prosecution case was spelt out in some detail. The case as summarised was that, seemingly as a result of his anger at excessive noise having been made one night by his next door neighbours, including Ms Grey, and disrespect shown by them to his partner, Ms Sarah, the accused threateningly summoned Ms Grey out the front of their neighbouring properties, took with him a bucket containing accelerant and a blowtorch, threw the accelerant over Ms Grey, and then set her alight with the blowtorch.
The defence response, as I informed Mr Korn, who appeared with Dr Kelly as trial counsel for the accused, at a hearing on 2 December 2024, was singularly unhelpful in meaningfully indicating what the issues were between the defence and the prosecution, because it would not reveal to the jury what the actual defence of the accused would be. All the defence response essentially indicated was that all of the paragraphs in the SPO concerning the alleged attack by the accused were in dispute.
Prior to the commencement of the trial, on 23 February 2025, the defence provided an email to the prosecution which set out the following aspects of the defence case, in answer to a number of questions I had earlier posed:
Mr Gauci picked up a bucket located next to the hose just inside the front fence line, realised there was liquid in it and threw it at Ms Grey who was, at that stage, on top of Mr Gauci’s wife;
Mr Gauci disputes that the liquid in the bucket, as a miscible totality, was flammable. Further, for his part, he did not know or intend that the liquid in the bucket would be in any way dangerous, least of all flammable.
Mr Gauci denies lighting any flame. Further, at all relevant times, he never held or touched the blowtorch. He had a rifle in his right hand and was cradling it using both hands, at times other than when he picked up the bucket with his left hand and threw it in the direction of where Ms Grey was fighting his wife in order to break up the fight.
Mr Gauci denies that he was the person who set fire to the complainant and does not believe that anything he did was the cause of her ignition. [1]
[1]Transcript of Preliminary Argument, 24 February 2025, 8-9 (‘February preliminary argument transcript’).
In oral submissions, Mr Korn also clarified that the defence conceded that the accused had a blowtorch ‘in his vicinity’, but declined to provide any elaboration when asked what that meant.[2]
[2]Ibid 9-10.
On 25 February, the prosecution case was opened to the jury by Ms Moran consistently with the contents of the SPO. In his defence response immediately following the prosecution opening address, Mr Korn set out what he described as a number of very short propositions. These were:
i.At no point did the accused speak or act aggressively at the back fence when talking to Ms Grey. Rather, he tried to resolve the matter civilly, and hose down the violence suggested by Ms Grey;
ii.At all times, both in the backyard and out the front, Ms Grey was the aggressor;
iii.It was Ms Grey and the males with her who wanted a fight out the front, not the accused;
iv.The accused did not lure Ms Grey out the front;
v.The accused did not ask Ms Grey to come closer out the front;
vi.Ms Grey attacked Ms Sarah, knocking her to the ground and climbing on top of her;
vii.In response to that, the accused picked up a bucket next to a tap at the front of his property, and threw the liquid in the bucket in the direction of the two women, intending to break up the fight;
viii.The accused had no belief that there was anything flammable in the bucket;
ix.At the time he threw the contents of the bucket, the accused was holding a rifle in his hands;
x.The accused was not holding a blowtorch at this time, although he had earlier had a blowtorch in his hand, which he had discarded.[3]
[3]Transcript of evidence 83-9 (‘Transcript of evidence’).
In his defence response, Mr Korn said nothing about the fact of Ms Grey having caught on fire, and how this might have occurred. Shortly after the defence response, in the absence of the jury, I pointed out to Mr Korn that he had said nothing to the jury about the circumstances of Ms Grey catching fire, and asked him what the defence position was going to be. The following exchange took place:
MR KORN: Your Honour, for his part he doesn’t know. That’s why I haven’t said anything about it. I’ve told your Honour we are open to the idea of him giving evidence, and if that follows, as I expect…he doesn’t believe that anything he did caused it.
HIS HONOUR: Well…something caused it. She burst into flames. Is that really his defence, that that just happened spontaneously?
MR KORN: It can’t probably happen spontaneously, your Honour. That would be a positive assertion. I can only say what I’ve said. He doesn’t know.[4]
[4]Transcript of evidence (n 3) 99.
The case then proceeded, and a number of witnesses were called, including eyewitnesses.
During the cross-examination of one of these eye witnesses, Stacey Morgan, [5] on 4 March 2025, it was indicated to the Crown that the defence would seek to play to the witness some small sections of body worn camera (‘BWC’) footage from two of the attending members of Victoria Police, which showed the witness talking to the members in question.[6] My understanding of the precise portions, informed by my knowledge now of the entirety of the footage, and the apparent position of the defence, is that these were portions in which the witness said or suggested that the person responsible for what happened to Ms Grey was a female. When alerted to this proposed course, the Crown sought leave to resume examination-in-chief for the purpose of playing the entirety of the footage to the witness before he was cross-examined about the discrete portions. This course was not opposed by defence. [7] Leave was granted and the footage was played to the witness and tendered by the prosecution. In that footage, Mr Morgan, it might be observed, showed some apparent confusion about the events in question, and who it was who set fire to Ms Grey. On at least a couple of occasions, he indicated that it may have been a female. One of the segments of footage showed the entirety of the process by which the first statement of the witness was obtained.
[5]Mr Morgan is also the alleged victim in relation to charge four, the second charge of conduct endangering a person.
[6]Transcript of evidence (n 3) 574.
[7]Ibid 584.
Shortly before the playing of the footage, after I had been alerted for the first time that the defence would be seeking to make something of the fact that the witness had, at some points, claimed that the female was responsible for the events in question, the following exchange occurred between me and Mr Korn, in the absence of the jury:
HIS HONOUR: But just so I understand the significance of it, it’s not your defence that Blane Sarah threw the stuff from the bucket on---
MR KORN: Your Honour, we are – it’s not a defence, we are not saying – as I have said to your Honour and I will continue to say, Mr Gauci did not see – did not see. So we’re not ---
HIS HONOUR: No. sorry. Mr Korn. I am not talking about the lighting; I’m talking about throwing from the bucket.
MR KORN: No. No. No. No.
HIS HONOUR: It’s your client that’s been pointed out in his defence response that he threw some liquid from a bucket over the complainant.
MR KORN: No. Absolutely no ---
HIS HONOUR: And it’s not your client’s defence that his wife is the person who set her alight, is it?
MR KORN: Your Honour, as I said, his position will be he can only give evidence of what he saw or heard ---
HIS HONOUR: Mr Korn, come on ---
MR KORN: No. No, your Honour. No, your Honour ---
HIS HONOUR: It’s not your client’s defence that his wife set fire to her, is it?
MR KORN: I am not saying any more than I have said, your Honour, because that’s all I can say ---
HIS HONOUR: What, you don’t have instructions on whether or not Blane Sarah is the person who set her alight?
MR KORN: No, I don’t.[8]
[8]Transcript of evidence (n 3) 580-1.
After the BWC footage was played and tendered, the trial was adjourned until the following day. On 5 March 2025, before cross-examination of Mr Morgan concluded, Ms Moran informed me, in the absence of the jury, of her belief, based on discussions with Mr Korn, that the defence would be seeking to play, through a policeman, Senior Constable Svanfelds, some BWC footage in which it would be claimed, on behalf of the accused, that Ms Grey at one point identified the person who set fire to her as a female.
This argument was apparently supported by a short transcription of the subject conversation, prepared by police and contained in disclosure material, which recorded one of Ms Grey’s answers as ‘s/he’. Once this issue was drawn to my attention, I viewed the portion of the BWC footage in question, and agreed that at some points it is unclear whether Ms Grey is saying ‘she’ or ‘he’. However, as correctly emphasised by Ms Moran, the statements were made at a time when the victim’s ‘airways were burnt and she had soot and blood in her mouth’. [9]
[9]Transcript of evidence (n 3) 631.23-28.
Ms Moran indicated her dawning realisation that the defence may go to the jury on the basis that the jury should not be satisfied beyond reasonable doubt that it may not have been Ms Sarah who lit Ms Grey on fire, based on the combination of the statements by Mr Morgan and Ms Grey herself, in the two portions of BWC which I have outlined. She sought clarification from the defence whether that position may be taken by them during their closing address.
The following exchange then occurred between me and defence counsel:
HIS HONOUR: Mr Korn, you’re not going to be suggesting to the jury on behalf of your client that his wife might’ve set fire to Shari Grey, are you?
MR KORN: No, not in those terms.
HIS HONOUR: Well, in what terms?
MR KORN: Well, you Honour, I am entitled to say that there is evidence in the trial that somebody identified a female as having set her alight.[10]
[10]Ibid 633.
Later in discussions on 5 March 2025, Mr Korn, when asked by me whether the accused’s defence before the jury would be that some female had lit Ms Grey alight, responded, ‘No, I’m simply going to be very faithful to the evidence; that the evidence is that she was lit up by a female’. [11]
[11]Ibid 644.25-27.
Prosecution submissions
On the basis that it had become apparent to the prosecution during the running of the trial that the defence may point to an alternative suspect, namely Blane Sarah, as possibly being the person who lit the blowtorch and set fire to Ms Grey, on 7 March 2025, Ms Moran sought leave to be permitted to close to the jury on an alternative basis of liability of the accused based on complicity. The prosecution’s primary position would be unchanged, that is, that the accused doused Ms Grey with accelerant and then set fire to her; but in the alternative, it would be submitted that if the jury could not rule out beyond reasonable doubt that Ms Sarah may have ignited the blowtorch and set fire to Ms Grey, then they should find that the accused was involved in the commission of the offences alleged on the basis that he intentionally assisted, encouraged or directed their commission, and/or that he entered into an agreement, arrangement or understanding with Ms Sarah to commit the offences.
Following her oral submissions before me, Ms Moran filed an outline of submissions in support of the application for leave. The outline included particulars in support of the complicity of the accused in the lighting of the flame and ignition of Ms Grey, on the basis of Crimes Act (‘the Act’) ss 323(1)(a) and (c), should the jury not be satisfied that the accused was the person who carried out those acts.[12]
[12]Prosecution Submissions on Particulars for Complicity, 7 March 2025 (‘Prosecution outline’).
Defence submissions
A defence outline of submissions was filed and served the following day. By this time, Mr Dann KC had become involved in the case. In the defence outline, issue was taken with the prosecution contention that an ‘alternative suspect’ had been advanced. Rather, it was submitted that the defence case was that the accused does not know how the complainant caught fire. The defence submitted that there had been no departure from the position as opened to the jury in respect of Ms Sarah, and no step taken to belatedly attribute criminal responsibility to another person.
Having pointed out the importance of the concept that the prosecution is required to formulate the basis upon which it puts its case against the accused, and adhere to it, the outline asserted that what the Crown sought to do was to ‘enlarge its case on the basis of evidence it has had for over two years’.[13]
[13]Defence submissions on Crown application to enlarge case, 8 March 2025 [35] (‘Defence outline’).
The defence outline asserted that there had been ample opportunity for the Crown to amend the SPO. Had it sought to depart from the opening, it should have served notice of its intention prior to trial, or, thereafter, by raising this application at the earliest possible point.
It was submitted that there was no proper basis for the Crown assertion that the application to broaden its case was as a result of a defence failure to disclose its case, and I should reject that assertion. Rather, I should infer that the application was made because the Crown realised that its case was no longer tenable, by reason of evidence it had adduced, or proposed to adduce. This application should be viewed as the prosecution seeking to take steps to keep its case afloat.
The defence submitted that if the prosecution was granted leave to broaden its case in the way sought, there would be real prejudice suffered by the accused. The trial would be rendered fundamentally unfair to the accused for five reasons. In circumstances where, as noted earlier, the Crown conceded that the trial should not proceed with the same jury, and the jury should be discharged, it is unnecessary to set these out. Suffice to say that I found a number of them quite unconvincing.
In respect of the proposed heads of complicity, the defence took issue with the Crown’s reliance on both parts (a) and (c) of section 323(1), describing it as ‘misconceived’. It was submitted that the accused could not be found guilty of committing an offence on a derivative liability basis, yet, at the same time, be found to have been a participant in an agreement to commit an offence, because the particulars and proofs in respect of each limb vary. No authority was cited for that proposition.
Furthermore, the outline criticised the prosecution for the fact that no application had been made to amend the indictment. The accused ‘must have been given an opportunity to be arraigned and relevantly enter a plea to such charges as are properly framed by the indictment’.[14]
[14]Defence outline (n 13) [51].
The outline further asserted that even if the Crown was not required to seek to amend the indictment, proper and adequate particulars of the bases of complicity must be provided. This had not yet occurred.
Such particulars as had been provided by the Crown were criticised by the defence as being inadequate and lacking a proper basis. Furthermore, it was submitted that the purported particulars:
cannot be applicable in respect of both subs-s 1(a) and (c). The Crown is attempting to relieve itself of its obligation to prove who committed the offence, in particular, the essential facts giving rise to the offence, and instead to simply leave it to the jury to convict in any circumstances, even if the accused did not, in fact, commit or have any knowledge of the essential facts. [15]
[15]Defence outline (n 13) [55].
In his oral submissions before me, Mr Dann supplemented these written submissions by resisting the proposition that the Crown were insufficiently notified of the defence case, and argued that the fact the accused had maintained that he was not the person who set Ms Grey alight should have prompted the prosecution to turn their mind to the fact that there was no alternative other than Ms Sarah. He submitted that the Crown had put their head in the sand in response to this consistent defence position, and that it was ‘remarkable’ that they were now claiming to be surprised by the defence case.[16]
[16]Transcript of evidence (n 3) 717.
He submitted that if I was minded to grant the Crown’s application, then the jury should be discharged, and that the retrial would require that ‘the particulars in respect to any complicity are much better set out than what we've so far been provided’; [17] though he resiled from the submission regarding amendment of the indictment, in the case of a retrial. [18]
[17]Ibid 719.
[18]Ibid 727.
Ms Moran, briefly in reply, outlined how some shambolic aspects of the committal and pretrial argument run by Mr Korn, in combination with other factors, combined to obscure her appreciation of the defence case, until the point when she alerted the court to it. [19]
[19]Ibid 729-730.
The law
As recently stated by the Court of Appeal in Sriranganathan v The King:[20]
It is a fundamental tenet of a criminal trial based on principles of fairness that the Crown is required to formulate the basis upon which it puts its case against the accused and essentially to adhere to that case.[21]
[20][2024] VSCA 257 (Priest, Niall and Taylor JJA).
[21]Ibid [65].
The obligation of the prosecutor in opening the Crown case is not merely to outline the facts which the Crown proposes to establish, but also to indicate, in conceptional terms, the nature of the Crown case.[22]
[22]Ibid [66].
The prosecution has the obligation under s 182 of Criminal Procedure Act 2009 (‘the Act’) to outline the manner in which the prosecution will put its case, and the acts, facts, matters and circumstances being relied upon to support a finding of guilt. When opening the case to the jury, the prosecutor is confined to the matters set out in the SPO, unless the trial judge considers there are exceptional circumstances.[23]
[23]The Act s 224(2).
As a general principle, the prosecution must not be allowed to expand their case in circumstances where the expansion would cause unfairness to the accused.[24]
[24]King v The Queen (1986) 161 CLR 423, 429; Parker v The Queen [2021] VSCA 348 [56]-[57]; Sriranganathan v The King [2024] VSCA 257 [69]-[72]; Mali v The King [2025] VSCA 91 [40]-[50].
And finally in terms of complicity, Section 323 of the Act relevantly provides:
(1)For the purposes of this Subdivision, a person is involved in the commission of an offence if the person—
(a) intentionally assists, encourages or directs the commission of the offence; or
…
(c)enters into an agreement, arrangement or understanding with another person to commit the offence
Analysis
The defence submissions bore little realistic relationship to the facts of this case as they had unfolded before me, both during the trial, and before the trial commenced.
In particular, insofar as the defence submissions laid, at the feet of the Crown, fault for the late bringing of the application for leave to broaden the prosecution case, the submissions were entirely disingenuous and misguided. In my view, the necessity for, and the late timing of, the application, was entirely the fault of the accused and his legal representatives.
The accused, through his counsel, had gone to some lengths to obscure the true nature of his defence in the trial. The written defence response, as I have previously observed, was opaque, to say the least, and entirely inadequate to illuminate important aspects of the defence answer to the prosecution case set out in the SPO. In no way could it be proper compliance with the requirements of the Criminal Procedure Act 2009 for a defence response to blandly assert ‘the prosecution case is in dispute’. That is all the defence response did in this case. In so doing, it fell well short of the requirement of properly identifying the issues in the case, from the defence perspective.
To that end, since I have come into the matter, across the preliminary hearings and once the trial commenced, I have raised doubts about the sufficiency of the defence response and the adequacy of puttage of the defence case to various witnesses on seven occasions. [25]
[25]Transcript of preliminary argument, 2 December 2024, 14.22-27; Transcript of mention, 7 February 2025 18.3-19.13; February preliminary argument transcript (n 1) 7.3 and follows; and Transcript of evidence (n 3) 99-100, 376-377, 471 and follows and 621 and follows.
More information was belatedly forthcoming, by virtue of the written document provided to the prosecution shortly before the trial. And yet, when it came time for Mr Korn to speak to the jury in response to the prosecution opening address, he said nothing at all about how it was, or by whom, that Ms Grey came to be set alight. No suggestion was advanced that some other person may have been responsible for this, less still that Ms Sarah may have been responsible. It was left entirely up on the air.
In subsequent discussions with me in the absence of the jury, Mr Korn was similarly unhelpful.
It was not until the point was reached where defence counsel indicated to the prosecution that it would seek to play to the witness Mr Morgan some portions of BWC footage in which the witness had indicated that the person who set fire to Ms Grey was the female neighbour, that it became apparent for the first time that the defence case would be, not so much that the accused did not know how the complainant was set on fire, but that the Crown case was incapable of excluding the reasonable possibility that his partner, Ms Sarah, was the person who did so.
The fact of Ms Moran having a ‘dawning realisation’, as outlined at [16], was reasonable not only because of the opaqueness of the defence case, but because of the very limited probative value of each of the pieces of BWC footage which the defence sought to rely on. Both aspects, viewed in isolation, provided some support for the proposition that a woman set Ms Grey alight. However, when viewed in the context of the entirety of the evidence of this case, these pieces of evidence were little more than inconsequential – not least, because several eye witnesses gave firm accounts that the accused was the person who set Ms Grey alight; because he is seen on internal CCTV footage to pick up the blowtorch from his kitchen bench and leave the house with it; and because when Ms Grey and Mr Morgan’s purported identifications of a female neighbour are made, they were made by people suffering from significant distress and physical injury – albeit relatively minor injury in the case of Mr Morgan, but devastating in the case of Ms Grey. In the case of Ms Grey, the possible identification of a female as having set her alight was preceded and followed by other statements in which she indicated that a male was responsible for what had occurred. And in the case of Mr Morgan, the fleeting references to a female neighbour were not maintained by him in either of his two police statements, and contradicted by other statements made by him in the same BWC footage, where a male neighbour was identified.
The defence contention that the prosecution ‘seeks to enlarge its case on the basis of evidence it has had for over two years’ completely ignored the practical reality of what has occurred. First, although the BWC footage was known to and in possession of the Crown, as well as the police document suggesting the possibility of Ms Grey having, at one point, said that a female set her on fire, at no time did the prosecution have any reason to suppose that the accused, in advancing his defence, may seek to attribute blame to Ms Sarah. That realisation had only occurred because the defence, half way through the trial, indicated its desire to have played to the jury the occasional claims by Mr Morgan of female involvement in the crime, and the portion of the Grey BWC conversation in which she may, possibly, have used the pronoun ‘she’ in reference to the person responsible for setting her alight.
I was satisfied that before that time, the prosecution had no idea that Blane Sarah would or may be pointed to as an alternative suspect. It was that realisation which was behind the application by the Crown at that stage of the trial.
In those circumstances, the defence criticism of the prosecution for seeking to enlarge its case upon the realisation the case was no longer tenable by reason of evidence it had, or proposed to, adduce, was completely misguided.
First of all, it was the defence which made it clear it would be seeking to lead the evidence in question. If not for defence intervention, the prosecution would not have sought to play any of the BWC footage, and the out-of-court statements by Morgan, and possibly Ms Grey, would not have been before the jury.
Secondly, the prosecution had no reason to suspect that this position would be taken on behalf of the accused until Mr Korn indicated as much to Ms Moran during the trial, as set out above.
I was satisfied that defence counsel had been well aware, from early on in their involvement in this matter, that one witness said, at some points, that a female may be responsible for the complainant being set on fire, and that the complainant herself may have attributed the conduct to a female. The importance of this information, in the case of an accused against whom, it might be thought, the prosecution case is a very strong one, was obvious.
And yet the defence did not do anything to highlight the possible significance of the evidence until half-way through the trial.
That this issue had not come to a head until that late stage in the trial was entirely the responsibility of the accused.
The Crown’s application was understandable. Unlikely though it may be that the jury would not be satisfied that it was the accused who set fire to Ms Grey, if the defence were going to advance an alternative suspect for that conduct, then of course the prosecution would seek to respond to that prospect. It sought to do so by seeking leave to be able to include, as an alternative basis of guilt for the accused, his guilt as an accomplice, should the jury be left with a reasonable doubt about his having caused the fire, but be satisfied that if he did not do so, the only other person who could have done so was his accomplice.
The defence submitted that the Crown’s reliance on the ‘assisting’ and the ‘agreement’ limbs of complicity was misconceived, and that the accused could not be found guilty on both bases. That is not correct. It is commonplace for the Crown to indict someone on the basis of complicity with those two heads relied upon. Many situations may arise where a person could be found guilty on either head, or both heads. Persons may be parties to an agreement to commit a crime, and then, go ahead and assist or encourage each other in the commission of the crime. That could be so here.
As for the defence submissions about the inadequacy of the particulars provided by the Crown of the bases of complicity, I did not accept the submissions. The Crown’s position was simple enough, and articulated in a form which was adequate to enable the accused to understand the broadened case he would need to answer.
Turning to the defence assertion that there should be a prosecution application to amend the indictment, and the contention that it would be necessary for the accused to be arraigned afresh because two new bases of liability are sought to be advanced, that submission ignored the reality of the fact that when someone is charged with a criminal offence on the basis of complicity, the charge will be worded as if he is the sole offender.
Had this trial continued before the same jury upon my granting leave to the prosecution to broaden its case in the way sought, there would have been no need for any amendment to be sought to the charges on the indictment, and no call for the accused to be re-arraigned.
In light of the fact, revealed by the accused for the first time only part-way through his trial, that he may point to his partner as being the person responsible for setting Ms Grey alight, the prosecution application for leave to go to the jury on an alternative basis was logical and understandable. It was not the prosecution’s fault that it did not understand the defence position until so late in the piece. That was entirely the doing of the accused, through his legal representatives. He could not then be heard to complain that it would be unfair for the Crown to be given permission to deal with an issue of which the Crown had no knowledge until well into the trial.
Having considered the matters advanced on behalf of the accused, I was satisfied that no unfairness would flow to the accused by the Crown being granted leave to go to the jury on that alternative basis.
Conclusion
I granted leave to the Crown to go to the jury on the alternative basis of complicity, as sought by Ms Moran. I then proceeded to discharge the jury without verdict. I remanded the accused in custody for a retrial on a date to be fixed. That date has since been fixed for 22 August 2025.
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