R v PMJ and HPK - [2010] QSC 302

SUPREME COURT OF QUEENSLAND

CITATION:

R v PMJ and HPK [2010] QSC 302

PARTIES:

R
(applicant)
v
PMJ
(first defendant/respondent)
HPK
(second defendant/respondent)

FILE NO/S:

Indictment No 300 of 2009

DIVISION:

Trial

PROCEEDING:

Criminal Application

COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 August 2010

DELIVERED AT:

Brisbane

HEARING DATE:

12 August 2010

JUDGE:

Fryberg J

ORDER:

Application for leave dismissed.

CATCHWORDS:

Criminal law – Procedure – Information, indictment or presentment – Joinder – Of defendants – Offences arising out of same or closely related facts – Application by Crown to amend the indictment charging each defendant separately with one count of murder – Criminal Code (Qld), s 568(12) – “facts relevant to all the charges” – “different or separate offences”

Criminal Code (Qld), s 568(12)

R v Baynes [1989] 2 Qd R 431, compared
R v Crawford [1989] 2 Qd R 443, cited
R v Danes and Taylor [1965] Qd R 338, cited
R v K; ex parte A-G (Qld)[2002] QCA 260, compared
R v Potter and McKenzie [1959] Qd R 378, cited
Rintel v R (1985) 17 A Crim R 308, cited

COUNSEL:

V A Loury for the applicant
S Di Carlo for the first defendant/respondent
P E Smith for the second defendant/respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the applicant
Douglas Law for the first defendant/respondent
Bell Miller for the second defendant/respondent

HIS HONOUR: The case before me, as presently constituted,
charges in an indictment containing one count murder. The
indictment alleges that on the 25th of September 2007 at
Brisbane PMJ and HPK murdered JP. In form, that is a charge alleging a murder carried out in concert: compare R v K; ex parte A-G (Qld) [2002] QCA 260 and R v Baynes [1989] 2 Qd R 431.

The Crown had supplied particulars to the defence before the trial began and they were supplied to the Court on the first day of the trial. They were the subject of some debate over succeeding days until last Friday, on the fourth day of the trial, they took their final form. It then became apparent that the Crown case against the accused was, first, that one of them acting alone murdered JP; alternatively, that the other acting alone murdered JP; alternatively that acting in concert in the prosecution of a common purpose one or another of them murdered JP and the other was liable under s 8 of the Criminal Code as an accessory.

That led to some consideration of whether the indictment in
the form in which it stood supported a Crown case so
particularised. The trial was adjourned last Friday and
resumed this morning, the fifth day of the trial.

At the outset today, the learned Crown prosecutor applied for leave to amend the indictment. She proposes to amend it by deleting the reference to one of the accused in the existing charge and by adding another count charging the other accused separately with murder. She informed the Court this morning that the…

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 PMJ and HPK

Details

AGLC: R v PMJ and HPK [2010] QSC 302
Case: [2010] QSC 302
Decision Date: 12 August 2010

CaseChat Overview and Summary

The respondents, PMJ and HPK, were charged in the Supreme Court of Queensland with the murder of a person. The Crown subsequently applied to amend the indictment so that each respondent was separately charged with one count of murder. The application was heard by the Supreme Court, which needed to determine whether the amendment was permissible under the Criminal Code. The Crown argued that the amendment was allowable under s 568(12) of the Code, which permits an indictment to be amended if it includes “facts relevant to all the charges” and if the charges “constitute different or separate offences.” The respondents contended that the amendment was inappropriate because the facts relevant to the charges were common to both respondents.

The court considered the relevant statutory provisions and case law. It held that the amendment was not permissible because the facts relevant to the charges were not common to both respondents. The court found that the charges constituted different or separate offences but that the facts relevant to the charges were not the same for both respondents. As a result, the application to amend the indictment was dismissed. The court noted that the Crown could still proceed with the original indictment or bring separate charges against each respondent.

Orders

Orders of the court

Application for leave dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v PMJ and HPK [2010] QSC 302
PARTIES:	R (applicant) v PMJ (first defendant/respondent) HPK (second defendant/respondent)
FILE NO/S:	Indictment No 300 of 2009
DIVISION:	Trial
PROCEEDING:	Criminal Application
COURT:	Supreme Court at Brisbane
DELIVERED ON:	12 August 2010
DELIVERED AT:	Brisbane
HEARING DATE:	12 August 2010
JUDGE:	Fryberg J
ORDER:	Application for leave dismissed.
CATCHWORDS:	Criminal law – Procedure – Information, indictment or presentment – Joinder – Of defendants – Offences arising out of same or closely related facts – Application by Crown to amend the indictment charging each defendant separately with one count of murder – Criminal Code (Qld), s 568(12) – “facts relevant to all the charges” – “different or separate offences” Criminal Code (Qld), s 568(12) R v Baynes [1989] 2 Qd R 431, compared R v Crawford [1989] 2 Qd R 443, cited R v Danes and Taylor [1965] Qd R 338, cited R v K; ex parte A-G (Qld)[2002] QCA 260, compared R v Potter and McKenzie [1959] Qd R 378, cited Rintel v R (1985) 17 A Crim R 308, cited
COUNSEL:	V A Loury for the applicant S Di Carlo for the first defendant/respondent P E Smith for the second defendant/respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the applicant Douglas Law for the first defendant/respondent Bell Miller for the second defendant/respondent