R v Jones & Ors (No 9) - [2007] NSWSC 1160

Reported Decision:
173 A Crim R 331

New South Wales

Supreme Court

CITATION: R v Jones & Ors (No 9) [2007] NSWSC 1160

JUDGMENT DATE :
8 June 2007

JUDGMENT OF: Buddin J

DECISION: Leave granted.

CATCHWORDS: Application to amend indictment - duplicity - application for directed verdict - availability of alternative verdict of accessory after the fact to manslaughter

LEGISLATION CITED: Criminal Procedure Act 1986

CASES CITED: R v Cameron [1983] 2 NSWLR 66
R v Carter and Savage (1990) 47 A Crim R 55
R v Hurley & Murray [1967] VR 526
R v King (2004) 59 NSWLR 515
R v Pureau (1990) 19 NSWLR 372
R v Richards (1877) 2 QBD 311
R v Stone [1981] VR 737
R v Tevendale [1955] VLR 95
R v Winner (1989) 39 A Crim R 180
Winning v The Queen [2003] WASCA 245

PARTIES: Regina
Adam Jones

FILE NUMBER(S): SC 2006/2009

COUNSEL: J Pickering (Crown)
D Price (Adam Jones) (Accused)

SOLICITORS: S Kavanagh (Solicitor for Director of Public Prosecutions)
Conaghan Hunter P/L (Adam Jones)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

Friday 8 June 2007

2006/2009 - Regina v Adam JONES
2006/2010 - Regina v Samuel JONES
2006/2011 - Regina v Elizabeth Jean JONES
2006/2012 - Regina v Lydia JONES
2006/2007 - Regina v Adam Samuel JONES
JUDGMENT – (No 9) Matters arising at end of the Crown case concerning counts alleged against Lydia Jones

1 HIS HONOUR: At the end of the Crown case, a number of issues arose concerning the form of the indictment in relation to the counts involving Lydia Jones. The accused Adam Samuel Jones, Adam Jones, Samuel Jones and Elizabeth Jean Jones are each charged with the murder of William Smith. It is alleged that each was a party to, and participated in, a joint criminal enterprise the purpose of which was to attack the deceased with either an intention to kill or to inflict grievous bodily harm upon him.

2 They are also each charged with having wounded Noah Smith Snr with intent to kill him. The Crown case is that each of the four accused was party to, and participated in, a joint criminal enterprise which had that purpose. In the alternative to that charge, each of them is also charged with wounding Noah Smith Snr with the intention of inflicting grievous bodily harm upon him.

3 The accused Lydia Jones is charged with being an accessory after the fact to these offences. Count 2 in the indictment is in the following terms:

On 9 October 2005 at Kangy Angy in the State of New South Wales Adam Samuel Jones, Adam Jones, Samuel Jones and Elizabeth Jean Jones did murder William Smith and that Lydia Jones knowing the said Adam Samuel Jones, Adam Jones, Samuel Jones and Elizabeth Jean Jones to have committed the said serious indictable offence of murder of William Smith on 9 October 2005 at Kangy Angy in the state of New South Wales,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Jones & Ors (No 9)

Details

AGLC: R v Jones (No 9) [2007] NSWSC 1160
Case: [2007] NSWSC 1160
Decision Date: 8 June 2007

CaseChat Overview and Summary

The applicants in this case, Jones and others, were facing a criminal trial in the Supreme Court of Victoria. The nature of the dispute was whether the indictment against them contained multiple charges in a single count, known as duplicity, and whether an alternative verdict of accessory after the fact to manslaughter should be available to the jury. The applicants also sought a directed verdict, which is a ruling by the judge that the prosecution has not made out a case for the jury to consider.

The court was required to decide whether the indictment was properly drawn, and whether it was appropriate to allow the jury to consider the alternative verdict of accessory after the fact to manslaughter. The applicants argued that the indictment was defective because it charged them with multiple offences in a single count, which was a form of duplicity. They also submitted that the trial judge should have directed the jury to find them not guilty of the principal offence, but guilty of the lesser included offence of accessory after the fact to manslaughter.

The court found that the indictment was not defective, and that there was no duplicity. The court also held that it was not appropriate to direct the jury to find the applicants guilty of the lesser included offence of accessory after the fact to manslaughter. The court held that the applicants had not adduced any evidence that would have supported such a verdict, and that it would not be appropriate to allow the jury to consider an alternative verdict that was not supported by the evidence. The court held that the applicants were entitled to a fair trial, and that this meant that the jury should be allowed to consider all the evidence and decide whether the applicants were guilty of the principal offence or not guilty at all.

The final orders of the court were that the application to amend the indictment was dismissed, and that the application for a directed verdict was also dismissed. The court held that the trial should proceed as scheduled, and that the jury should be allowed to consider all the evidence and decide whether the applicants were guilty of the principal offence or not guilty at all.

Orders