R v Jaroslav Larry MURANY

[2007] NSWDC 24

CITATION:	R v Jaroslav Larry MURANY [2007] NSWDC 24
HEARING DATE(S):	06/03/2007
JUDGMENT DATE:	6 March 2007
EX TEMPORE JUDGMENT DATE:	6 March 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The application to quash indictment is refused.
CATCHWORDS:	Criminal Law - Latent duplicity - Legal responsibility
LEGISLATION CITED:	Criminal Procedure Act
CASES CITED:	Royall v The Queen (1991) 172 CLR 378 R v Cramp (1999) 110 A Crim R 198 R v Giam (1999) 104 A Crim R 416 R v Isaacs (1997) 41 NSWLR 374 R v Serratore (1999) 48 NSWLR 101 R v Gianetto [1997] 1 Cr App R R v Thatcher (1987) 39 DLR (4th) 275
PARTIES:	Crown Jaroslav Larry Murany
FILE NUMBER(S):	05/11/0825
COUNSEL:	K. McKay (Crown) P. King (Murany)
SOLICITORS:	NSW DPP Peter Katsoolis Lawyers

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JUDGMENT

1 HIS HONOUR: Some time ago Jaroslav Murany was charged by the Crown on an indictment containing two offences. The first was an allegation of affray and the second being an allegation of maliciously inflicting grievous bodily harm upon a man by the name of Garry Reagan. The jury at an earlier trial could not agree and so the matter has come before me today for the purposes of a re-trial.

2 Before the jury was empanelled however, an application was made under s 17 of the Criminal Procedure Act that the second count on the indictment be quashed. The basis of that application is that the second count is said to contain within it a latent duplicity. In order to appreciate the basis of that submission it will be necessary to spend some time outlining the case made against by Mr Murany by the Crown.

3 Annexed to the affidavit of Mr Katsoolis, Mr Murany’s solicitor, was the Crown’s opening from the earlier trial. That makes it clear that the Crown has always put its case against the accused on an alternative basis. The evidence will establish, according to the Crown, that on 26 January 2005 for reasons which I need not go into, Mr Reagan and the accused departed an area near Crown Street, Surry Hills and went up Collins Street. It does not appear to be disputed that after the two of them went into that area, Mr Reagan, who was riding a bicycle at the time ended up with significant injuries. It is the manner in which he suffered those injuries which is to be disputed. The only two people who were in a position to know what happened were the accused and Mr Reagan. There were eye witnesses to earlier events but when Mr Reagan and Mr Murany went up Collins Street they went out of sight of those eye witnesses. Mr Reagan cannot remember what happened. He suffered a fractured skull and so no doubt his inability to remember is related to the injuries he suffered.

4 The Crown case is therefore put on two bases. The first scenario is that Mr Reagan fell off his bicycle whilst being chased by the accused. The second scenario is that the accused caught up to Mr Reagan, and punched him to the left side of his head, which caused Mr Reagan to become unconscious and fall off his bicycle striking the right side of his head upon the ground.

5 The Crown has medical evidence apparently in support of that second scenario, but because the first scenario is more consistent with a version of events given by the appellant to a friend of his the Crown also puts its case against the appellant on an alternate basis. Thus even if the jury do not accept the Crown’s scenario based on the medical evidence, the Crown submission will be that it would nevertheless convict the accused on the alternative scenario which is I repeat, that Mr Reagan fell off his bicycle whilst being chased by the accused, the accused being legally responsible for that event. That application of legal responsibility would be consistent with legal principle (see cases such as Royall v The Queen (1991) 172 CLR 378).

6 So to summarise, the Crown intends to present a case against the accused as far as the second count is concerned based on alternative and mutually inconsistent factual scenarios. Mr King, who appears for the accused says that this creates a latent duplicity.

7 The first thing to note is that cases where alternative scenarios are put by a Crown can be divided into two categories. The first is where the same factual circumstances can result in criminal responsibility on two separate legal bases. An example of that is to be found in the decision of R v Cramp (1999) 110 A Crim R 198. In that case the Crown advanced a case of manslaughter against the accused based on alternative legal consequences rather than alternative factual consequences. It was said that that accused was guilty of manslaughter either on the basis of gross criminal negligence or unlawful and dangerous act. On appeal to the Court of Criminal Appeal it was suggested that the trial Judge should have required the jury to be unanimous about either gross criminal negligence or unlawful and dangerous act before they could convict the accused. It was said that if, for example, six members of the jury thought the accused was guilty on the basis of unlawful and dangerous act and the other six thought that he as guilty on the basis of gross criminal negligence, that nevertheless a verdict of guilty could not be returned. The Court of Criminal appeal rejected that submission. It is important to recognise that that case says little if anything about the situation that faces me this morning. R v Cramp is not about this case. R v Cramp is about the situation where the same factual scenarios can have different legal consequences.

8 R v Cramp says nothing, or nothing much at least, about the present situation, beyond assisting as an example of the acceptability of a judge sentencing after a Crown case is put on alternative bases. I mention that aspect because that is one of the matters relied on by Mr King. He refers to the decision of the Court of Criminal Appeal in R v Giam (1999) 104 A Crim R 416. There the Chief Justice with whom the other members of the court agreed, referred to the concept duplicity and said that it had a function in ensuring that the sentencing judge had before him or her a clear indication of the facts that had been found by the jury. Mr King relies on that and says that if his client were convicted on the second count on the indictment, I would not know which of the two alternative scenarios was accepted by the jury. He says I would thus have difficulty in sentencing his client. But as R v Cramp illustrates, that is not an insurmountable problem. Indeed the Court of Criminal Appeal decision of R v Isaacs (1997) 41 NSWLR 374 shows that the fact that a Judge has to select between alternative ways in which the Crown puts its case when sentencing is a well accepted consequence of the present division of responsibility between Judge and jury. There are many cases, especially where murder is the charge and a verdict of manslaughter is returned, that the judge does not know for example whether the jury was unanimously finding manslaughter on the basis of provocation or unanimously on the basis of diminished responsibility or half and half.

9 More dramatic examples of the sentencing Judge choosing between alternative factual scenarios when sentencing can be found in cases such as R v Serratore (1999) 48 NSWLR 101 from New South Wales R v Gianetto [1997] 1 Cr App R 1 and R v Thatcher (1987) 39 DLR (4th) 275 from Canada. These three cases from three different jurisdictions all have in common the situation that a person was charged with murder, (in two cases with his wife and one case of his girlfriend), but the Crown could not say whether the particular accused killed his victim or got someone else to do it. Not in New South Wales, not in Canada, and not in England is the consequence that the Crown is unable to present its case on that basis.

10 There is no legal distinction between the present case and those three cases which I have just mentioned. When I asked Mr King to point to any legal distinction, he was unable to do so. But Mr King relied on the decision of R v Giam to which I will now return. It has to be noted that R v Giam is very different to this case. In that case there were in each count, two separate false statements to be considered under each count of making a false statement. However, in this case there is only one set of injuries said to amount to grievous bodily harm. The decision in R v Giam was guided by the words of the offence which referred to the making of a “false statement” (that word being in the singular). The decision in R v Giam is unsurprising given the offence charged, the elements of that offence and the fact that the Crown was relying on separate false statements under each count on the indictment. The decision in R v Giam is not authority for the proposition that the Crown is unable to present a case based on two alternative factual scenarios leading to the one consequence, in this case, grievous bodily harm. The case which binds me is not R v Giam but R v Serratore. And that case is consistent with similar decisions to be found in other jurisdictions throughout the world.

11 For those reasons the application to quash the indictment is refused.

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