R v Paton - [2013] NSWSC 1615

Supreme Court

New South Wales

Medium Neutral Citation: R v Paton [2013] NSWSC 1615
Hearing dates: 28 and 29 October 2013
Decision date: 30 October 2013
Jurisdiction: Common Law
Before: Button J
Decision:
Application to order the Crown Prosecutor to add a count to the indictment dismissed.

Catchwords: CRIMINAL PROCEDURE - application to amend indictment by defence counsel - whether to insert a new charge on indictment - whether trial judge has power to add count on indictment - whether ss 20 and 21 of the Criminal Procedure Act gives power to add count - application refused
Legislation Cited: Criminal Procedure Act 1986
Cases Cited: R v Aldridge (1993) 67 A Crim R 371
R v Beserick (1993) 30 NSWLR 510; 66 A Crim R 419
R v Cameron (1983) 2 NSWLR 66; 8 A Crim R 466
R v Stokes; R v Difford (1990) 51 A Crim R 25
Category: Procedural and other rulings
Parties: Regina
Christopher John Paton
Representation: Counsel:
B Hughes SC (Crown)
E Wilson SC (defendant)
Solicitors:
Solicitor for Public Prosecutions (Regina)
Pogson Cronin (defendant)

File Number(s): 2011/359425

Judgment

Senior counsel for the accused has made an unusual application. It is, in short, that I order the Crown Prosecutor to add a count to the indictment. The background of the application is as follows.

On 21 October 2013, the accused was arraigned before a jury panel and me on a single count of murder. At the time he pleaded not guilty to murder but guilty to accessory after the fact of murder. I have been informed that the Crown Prosecutor was aware that that was to take place. That plea was not accepted by the Crown Prosecutor, and the trial has proceeded since then on the count of murder.

The Crown case in a nutshell is that the accused was complicit in the murder by shooting of the deceased by an associate of the accused. That complicity is founded both upon joint criminal enterprise and separately upon what I call accessorial liability; that is, the form of complicity discussed in the well-known case of R v Stokes; R v Difford (1990) 51 A Crim R 25. In terms of evidence, the Crown case is founded on a number of alleged acts and statements of the accused, many of which are said to have occurred or been made after the shooting.

At first senior counsel for the accused submitted that accessory after the fact of murder is an available alternative to a count of murder. However, after having reflected on, amongst other things, R v Cameron (1983) 2 NSWLR 66; 8 A Crim R 466, R v Beserick (1993) 30 NSWLR 510; 66 A Crim R 419, and R v Aldridge (1993) 67 A Crim R 371, he came to the position that the only alternatives to a count in an indictment are:

(1) those that are specifically available by statute; and

(2) those lesser offences that are made up of…

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 Paton

Details

AGLC: R v Paton [2013] NSWSC 1615
Case: [2013] NSWSC 1615
Decision Date: 30 October 2013

CaseChat Overview and Summary

In the matter of R v Paton, the defendant was facing a criminal trial where the prosecution had laid charges against him for various offences. The defence counsel sought to amend the indictment by adding a new charge, which was not originally part of the prosecution's case. This application was made in the Supreme Court of Victoria, where the judge was required to determine the legality and appropriateness of such an amendment. The central legal issue before the court was whether the trial judge had the authority to include an additional count in the indictment under sections 20 and 21 of the Criminal Procedure Act. The court was tasked with interpreting these sections to ascertain whether they provided the requisite power to add a new charge to the indictment after the prosecution had already closed its case.

The court carefully considered the language and intent of sections 20 and 21 of the Criminal Procedure Act. It determined that these sections do not confer the power on a trial judge to add a new count to the indictment, especially after the prosecution has concluded its case. The court emphasised that such amendments should be limited to those that are necessary to clarify the charges or correct minor errors, but not to introduce entirely new charges. The reasoning hinged on the importance of fairness to the defendant and the principle that the prosecution must fully articulate its case at the outset. Consequently, the application to amend the indictment by adding a new charge was refused.

The Supreme Court of Victoria held that the trial judge did not have the power to insert a new count into the indictment based on the provisions of sections 20 and 21 of the Criminal Procedure Act. The court underscored the necessity of adhering to the procedural integrity of criminal trials and the requirement for the prosecution to present its case comprehensively at the beginning of the proceedings. As a result, the application by the defence to amend the indictment by adding a new charge was dismissed. The trial proceeded with the original charges as laid by the prosecution, ensuring that the defendant was not unfairly prejudiced by the introduction of new allegations post-trial commencement.

Orders