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]).
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.
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…
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.
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AGLC
R v Keogh (No 1) [2015] SASC 179
Case
[2015] SASC 179
Decision Date
CaseChat Overview and Summary
The defendant in this case, Henry Vincent Keogh, has applied for a stay of proceedings in relation to a charge of murder. The application was brought before the South Australian Supreme Court. The prosecution case is that Keogh deliberately drowned Ms Anna Jane Ross Cheney in the bath by causing her head to be submerged until she drowned. The case against Keogh is entirely circumstantial. The defendant has applied for a permanent stay of proceedings on various grounds. The court was required to determine whether the Director of Public Prosecutions is required to provide particulars of the manner in which Keogh allegedly caused Ms Cheney’s head to be submerged. If the Director could not provide such particulars, the court was required to determine whether the prosecution should be permanently stayed. The court considered the statutory obligation to provide particulars in an information, indictment or presentment, as well as the court's inherent jurisdiction to order particulars of the act comprising the physical element of the offence and of the occasion on which the act was committed. The court concluded that the information complied with the statutory requirements and that there was no requirement for the Director to provide further particulars. The court found that the prosecution case is that Keogh performed an act or acts that caused Ms Cheney’s head to be submerged until she drowned and that the prosecution cannot further particularise that act or acts. The court held that the prosecution was not required to be permanently stayed. The court did not make any orders regarding the stay of proceedings.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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.