R v Keogh (No 1) - [2015] SASC 179

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v KEOGH (NO 1)
[2015] SASC 179
Judgment of The Honourable Justice Blue
11 November 2015
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - PARTICULARS
The defendant is charged with the murder of his fiancé in 1994.
The prosecution case is that the defendant murdered his fiancé by deliberately drowning her in the bath by causing her head to be submerged until she drowned. The prosecution case is circumstantial.
The defendant sought particulars of the particular act or acts by which he allegedly caused his fiancé's head to be submerged until she drowned. The Director responded that he was unable to provide further particulars.
Held:
1.       The adequacy of particulars depends on the circumstances of the particular case and upon the evidence available to the prosecution (at [16]-[17]).
2.       On a murder charge, the Crown does not have to establish the particular act of the accused which caused death (at [21]).
3.       The Crown is not obliged to provide particulars of the act which caused death beyond its ability having regard to the evidence available to it (at [21]).
4.       No order made for further particulars (at [23]).
Criminal Law Consolidation Act 1935 (SA) s 277(1), s 353A, referred to.
R v PL (2009) 199 A Crim R 199, applied.
Plomp v R (2007) 233 CLR 66; WGC v The Queen (2007) 233 CLR 66, discussed.
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 81 ALJR 1107; Johnson v Miller (1937) 59 CLR 467; Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; R v Liddy (2002) 81 SASR 22; R v Weaver (1931) 45 CLR 321; S v The Queen (1998) 102 A Crim R 418, considered.

R v KEOGH (NO 1)
[2015] SASC 179
Blue J:

The defendant Henry Vincent Keogh is charged with the murder of his fiancé Anna Jane Cheney on 18 March 1994.
The defendant was convicted of the murder on 23 August 1995.
The conviction was set aside by the Full Court on 19 December 2014 on a second appeal[1] and it was directed that the defendant be re-tried.[2]
[1] Criminal Law Consolidation Act 1935 (SA) s 353A. The defendant’s first appeal was dismissed on 22 December 1995. Applications to reopen the appeal or entertain a second appeal were dismissed for want of jurisdiction on 13 May 1997 and 22 June 2007.
[2] R v Keogh (No 2) [2014] SASCFC 136.
The trial is listed to commence before Judge alone on 8 March 2016.
The defendant has brought an application seeking a stay of proceedings on various grounds. I directed that a preliminary issue raised by that application be heard and determined before the balance of the application.[3] The issue is whether the Director of Public Prosecutions is required to provide particulars of the manner in which the defendant allegedly caused Ms Cheney’s head to be submerged and if he cannot do so whether the prosecution should be permanently stayed.
[3] Other preliminary issues are also to be heard and determined before the balance of the application.
Background
The prosecution case is that the defendant deliberately drowned Ms Cheney in the bath by causing her head to be submerged until she drowned. It is an entirely circumstantial case.
The prosecution case is that Ms Cheney died sometime between 8.10 pm and 9.30pm on 18 March 1994. The cause of death was drowning. The defendant called an ambulance at 9.32 pm. Ambulance officers arrived at 9.38 pm and found Ms Cheney lying on her back on the bathroom floor. Police officers arrived at 9.48 pm.
On 14 July 2015, the defendant’s solicitors wrote to the Director requesting particulars of the act of the defendant that allegedly caused Ms Cheney to drown. No reply to that letter was tendered, but the application was conducted on the basis that the prosecution case is that that the defendant performed an act or acts that caused Ms Cheney’s head to be submerged until she drowned and the prosecution cannot further particularise that act or acts.
On 9 September 2015, the defendant filed an application for a permanent stay of proceedings on various grounds.
The general obligation to provide particulars
The information contains the following statement and particulars of the charge:
Henry Vincent Keogh on the 18 March 1994 at Magill, murdered Anna Jane Ross Cheney.
Section 277(1) of the Criminal Law Consolidation Act 1935 (SA) provides:
Every information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as are necessary for giving reasonable information as to the nature of the charge.
The information complies with section 277(1) and there is no suggestion by the defendant that it does not.
This Court has inherent jurisdiction to order particulars of the act[4] comprising the physical element of the offence and of the occasion on which the act was committed.[5]
[4] For ease of expression, I use the word “act” to encompass a series of acts when they comprise a single offence, an omission where it comprises an offence or a series of omissions where they comprise a single offence.
[5] R v Weaver (1931) 45 CLR 321 at 333 per Gavan Duffy CJ, Starke and McTiernan JJ and 351 per Evatt J; Johnson v Miller (1937) 59 CLR 467 at 488-489 per Dixon J, 497 per Evatt J and 501 per McTiernan JJ; WGCv The Queen [2007] HCA 58, (2007) 233 CLR 66 at [127] per Hayne and Heydon JJ; Kirk v Industrial Relations Commission (NSW) [2010] HCA 1, (2010) 239 CLR 351 at [26] per French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ.
There are two broad purposes of particulars. The first purpose is to ensure that a single act on a single occasion is alleged and thereby to avoid duplicity, ambiguity and uncertainty as to which of multiple items of conduct on multiple occasions is the subject of the charge.[6] That purpose has no application in the present case.
[6] Johnson v Miller (1937) 59 CLR 467 at 486-490 per Dixon J, 497-498 per Evatt J and 501-502 per McTiernan JJ; S v The Queen (1989) 168 CLR 266 at 274-276 per Dawson J, 281-282 per Toohey J and 283-287 per Gaudron and McHugh JJ; S v The Queen (1998) 102 A Crim R 418 at 421 per McKenzie J (with whom McMurdo P and Helman J agreed); R v Liddy (2002) 81 SASR 22 at [257] per Mullighan J (with whom Williams and Gray JJ relevantly agreed).
The second purpose of particulars is to ensure that the defendant knows the case he or she has to meet.[7]
[7] Johnson v Miller (1937) 59 CLR 467 at 489 per Dixon J, 497-498 per Evatt J and 501-502 per McTiernan JJ; R v Liddy (2002) 81 SASR 22 at [257] per Mullighan J (with whom Williams and Gray JJ relevantly agreed); WGCv The Queen (2007) 233 CLR 66 at [127] per Hayne and Heydon JJ; Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 351 at [26] per French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ.
The adequacy of particulars provided depends on the circumstances of the particular case and ultimately is a matter of judgment and impression.[8]
[8] S v The Queen (1998) 102 A Crim R 418 at 424 per McKenzie J (with whom McMurdo P and Helman J agreed); R v Liddy (2002) 81 SASR 22 at [257] per Mullighan J (with whom Williams and Gray JJ relevantly agreed).
The precision required of particulars depends on the evidence available to the prosecution.[9] In WGC v The Queen,[10] Hayne and Heydon JJ said:
In framing the particulars of an offence the prosecution cannot be more precise than the evidence available for tender at the trial will permit. If the evidence which the prosecution can adduce at trial will not fix precisely the date or place at which an offence occurred, the prosecution cannot give particulars that pretend to such precision. The particulars given in the present matter illustrate the point. They alleged the occurrence of intercourse between specified dates spanning a month and "at Renmark or another place".[11]
[9] WGCv The Queen (2007) 233 CLR 66 at [129] per Hayne and Heydon JJ; R v PL [2009] NSWCCA 256, (2009) 199 A Crim R 199 at [48]-[50] per Spigelman P (with whom McLellan CJ at CL and RA Hulme J agreed).
[10] (2007) 233 CLR 66.
[11] At [129].
In Plomp v R,[12] the defendant’s wife drowned while they were both swimming in the sea. Neither the defendant nor his wife had any significant marks or injuries on their bodies. There were no eyewitnesses. The Crown case was that the defendant somehow drowned his wife but the Crown could not say how. The Crown case was entirely circumstantial, relying amongst other things on evidence that the defendant’s wife was a fairly good swimmer, the conditions were good and the defendant had a motive to kill her. One ground of appeal was that motive could not be taken into account unless it were first proved that the defendant did an act causing his wife’s death. Another ground was that the verdict was unreasonable and could not be supported having regard to the evidence. The High Court upheld the conviction. Dixon CJ (with whom Kitto, Taylor and Windeyer JJ agreed) said:
The applicant was the husband of the deceased and the case made against him was that while surfing with her at Southport he caused her to drown. …
The case for the Crown was that he had in some way brought about her drowning. …
It is objected that Plomp's motives cannot be taken into account until it is shown by evidence that in some physical way his actions were responsible for his wife's death. There is nothing, it is said, to show that anything he physically did impeded her emerging from the surf or recovering her equilibrium. Until that is shown, evidence of motive cannot be used, so it is said, to prove guilt. There is, in my opinion, no legal doctrine to that effect. All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done.[13]
[12] (1963) 110 CLR 234.
[13] At 241-242.
In R v PL,[14] the defendant was charged with murdering his domestic partner on 7 April 2007 at home. Medical opinion evidence was led that a cause of death was blunt force injury or injuries to the deceased’s head and/or neck. It was not clear if this killed him directly or led to a cardiac arrest. It was not clear how the blunt force injuries were caused. Potential causes included the defendant striking his partner or hitting him with a metal bowl on the chin and his partner suffering the blunt force injuries in falling to the floor; striking him in the head with a metal bowl causing the blunt force injury to his head; engaging in some physical struggle with his partner; and attempting to strangle him causing the blunt force injury to his neck. Other potential causes the Crown attempted to exclude included tripping and falling down the stairs. The trial Judge directed the jury to acquit of murder and manslaughter. The New South Wales Court of Criminal Appeal found that the direction was based on the trial Judge’s erroneous view that the Crown was required at law to establish the particular act of the defendant that caused his partner’s death. Spigelman CJ (with whom McLellan CJ at CL and RA Hulme J agreed) said:
[14] (2009) 199 A Crim R 199.
The legal proposition at the heart of the Crown case on Ground 3 is that it is not necessary to establish a precise act causing death in order to establish either murder or manslaughter. …
There have been numerous cases, generally based on circumstantial evidence, where a particular act causing death could not be identified:
Where no body was found. (R v Onufrejczyk [1955] 1 QB 388; R v Horry [1952] NZLR 111; Weissensteiner v The Queen (1993) 178 CLR 217; Burrell v The Queen [2007] NSWCCA 65; Burrell v The Queen [2009] NSWCCA 193.)
Where a body was in such a state of decomposition that a cause of death could not be determined. (R v Robertson (1913) 9 Cr App R 189; Keir v The Queen [2007] NSWCCA 149; Kaliyanda v The Queen [2007] NSWCCA 300.)
Where the Crown case was that the accused either committed the act causing death or was an accessory. (R v Swindall (1864) 2 Car & K 230; 175 ER 95; R v Thatcher [1987] 1 SCR 652; R v Serratore [1999] NSWCCA 377; (1999) 48 NSWLR 101.)
Where a single cause of death could not be identified. (R v Butcher [1986] VR 43 at 55-56; R v Moffatt [2000] NSWCCA 174; (2000) 112 A Crim R 201 at [26], [61], [66].) …
In my opinion, if his Honour proceeded on the basis that the Crown had to establish the particular act of the accused which caused death, then his Honour erred and did so with respect to a question of law alone.
…
The issue to be determined is whether, as the Crown submits, his Honour’s conclusion was based on the legal proposition that the Crown had to establish the act which caused the injuries leading to death, on the one hand, or whether it was based on the conclusion that, in the absence of such evidence, and having regard to the whole of the facts, the Crown case taken at its highest, could not be established.[15]
[15] At [46], [50], [52], [62].
Adequacy of particulars in the present case
In the present case, the prosecution case is circumstantial. No eyewitness was present when Ms Cheney drowned. The prosecution case is that the defendant deliberately drowned Ms Cheney in the bath by physically causing her head to be submerged until she drowned. It cannot say how this was achieved. It might have been by directly pushing Ms Cheney’s head under water. It might have been by holding up her leg or legs indirectly causing her head to be submerged. It might have been by other physical force applied to her body to cause her head to be submerged.
The decision of the New South Court of Criminal Appeal in R v PL[16] is effectively binding on me unless I am convinced that it is plainly wrong.[17] It is authority that on a murder charge the Crown does not have to establish the particular act of the accused which caused death. It follows that the Crown does not have to provide particulars of the act which caused death beyond its ability having regard to the evidence available to it.
[16] (2009) 199 A Crim R 199.
[17] Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 81 ALJR 1107 at [135] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
The observation by Hayne and Heydon JJ in WGC v The Queen[18] extracted above is apposite: “In framing the particulars of an offence the prosecution cannot be more precise than the evidence available for tender at the trial will permit.”
[18] (2007) 233 CLR 66.
I therefore decline to order that the Director provide further particulars of the act of the defendant alleged to have deliberately drowned Ms Cheney in the bath by physically causing her head to be submerged until she drowned.
As observed by the New South Court of Criminal Appeal in R v PL,[19] it is a different question whether having regard to the whole of the facts the Crown case can or will be established. These are questions for another day.
[19] (2009) 199 A Crim R 199.