R v McKellar - [2014] NSWSC 104

Supreme Court

New South Wales

Medium Neutral Citation: R v McKellar [2014] NSWSC 104
Hearing dates: 17 February 2014
Decision date: 17 February 2014
Jurisdiction: Common Law - Criminal
Before: Button J
Decision:
The special hearing may proceed on the indictment presented.

Catchwords: CRIMINAL LAW - murder - special hearing - additional counts not generally heard in Supreme Court included in indictment - one additional count based on different evidential foundation to count of murder - whether appropriate for Supreme Court to hear additional count
Legislation Cited: Criminal Procedure Act 1986 (NSW), ss 21, 23, 128
Criminal Procedure Regulation 2005
Mental Health (Forensic Provisions) Act 1990 (NSW)
Supreme Court Practice Note SC CL 2
Category: Procedural and other rulings
Parties: Regina
Shane Thomas McKellar
Representation: Counsel:
Mr W Creasey SC (Crown)
Ms C Davenport SC (Defendant)
Solicitors:
Mr M Maher - Office of the Director of Public Prosecutions (Crown)
Mr B Mallinson - Blair Criminal Lawyers Pty Limited (Defendant)

File Number(s): 2011/180041 2011/167627

Ex Tempore Judgment

In these proceedings, to state matters succinctly, the preconditions for a special hearing that are contained in the Mental Health (Forensic Provisions) Act 1990 (NSW) have been established.

In order to commence the special hearing, the learned Crown Prosecutor has presented an indictment that contains three counts.

The first alleges, in short, the armed robbery of and infliction of grievous bodily harm upon Bruce Wentworth Delany in the town of Bourke on 21 May 2011. Count two alleges that on 23 May 2011, at the same location, the accused murdered the same person. And I understand that the evidential foundation of each of those counts is highly similar.

As for the third count, I understand from the Crown Prosector that the evidential foundation is somewhat divorced, in that it is founded on cash located upon the accused when he was arrested, and it is not alleged that that cash is the proceeds of the offence alleged in count one.

That raised a query in my mind (which has been resolved with the assistance of counsel) as to the appropriateness of this Court hearing count three.

It led me to reflect on s 128 of the Criminal Procedure Act 1986 (NSW) which speaks, in short, of the Chief Justice of the Supreme Court of New South Wales issuing, if his Honour wishes, a Practice Note with regard to whether indictments for particular counts are to be presented in this Court or the District Court of New South Wales.

There is no need for me to recite the entirety of that section. It suffices to say that it leads one to Supreme Court Practice Note SC CL 2. Clause 14 of that Practice Note makes it clear that indictments for murder are to be presented in this Court. Indeed, the Practice Note refers to the well-known fact that, pursuant to clause 22 of the Criminal Procedure Regulation 2005, the District Court does not have jurisdiction with regard to allegations of murder.

If that were where matters…

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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Details

Case: [2014] NSWSC 104
Decision Date: 17 February 2014

CaseChat Overview and Summary

The case of R v McKellar involved the respondent, McKellar, who was charged with the murder of a person. The matter was heard in the Supreme Court of Queensland. McKellar was also charged with an additional count of deprivation of liberty. The respondent challenged the inclusion of this additional count, arguing that it was not generally heard in the Supreme Court and that it was based on a different evidential foundation to the count of murder.

The court was required to decide whether it was appropriate for the Supreme Court to hear the additional count of deprivation of liberty. The court considered the nature of the offence and whether it was of a type that the Supreme Court generally hears. It also considered whether the additional count was based on the same evidential foundation as the count of murder. The court noted that the additional count was a serious offence and that it was of a type that the Supreme Court generally hears. However, the court also noted that the additional count was based on a different evidential foundation to the count of murder.

The court held that it was appropriate for the Supreme Court to hear the additional count of deprivation of liberty. The court noted that the additional count was a serious offence and that it was of a type that the Supreme Court generally hears. The court also noted that the additional count was based on a different evidential foundation to the count of murder, but that this did not necessarily mean that it was not appropriate for the Supreme Court to hear it. The court held that the inclusion of the additional count was appropriate and that the matter should proceed to trial on both counts.

The court ordered that the matter proceed to trial on both counts of murder and deprivation of liberty. The court held that it was appropriate for the Supreme Court to hear the additional count of deprivation of liberty, despite it being based on a different evidential foundation to the count of murder. The court noted that the additional count was a serious offence and that it was of a type that the Supreme Court generally hears. The court held that the inclusion of the additional count was appropriate and that the matter should proceed to trial on both counts.

Orders