disuse. The rule was made at a time when indictments, even
simple ones, were lengthy and cumbersome documents which it
would
be difficult for a prisoner, who frequently had to
defend himself, to understand. He was not then entitled to
see the depositions
which would have told him clearly what
was the case against him. At the present time, when nearly
all accused are legally
aided and when the indictment is by
no means the only information on which he has to prepare his
defence, an absolute rule
against joinder of felonies would
be quite antiquated. But it was a good rule at the time when
it was made and it was made
by virtue of the judicial power
to protect defendants from injustice and oppression. If the
court has the power to see that
a defendant is not oppressed
by having too much put against him in one indictment, it
must surely also have the power to see
that he is not
oppressed by having the case against him spread over too
many indictments."
14. The Indictments Act 1915 (UK)
contained two main provisions, s4, and r3
of Schedule 1. These provided as follows:
S4: "Subject to the provisions of the rules
under this Act charges for more
than one felony or for more than one misdemeanour, and charges for both
felonies and misdemeanours,
may be joined in the same indictment, but where a
felony is tried together with any misdemeanour, the jury shall be sworn and
the
person accused shall have the same right of challenging jurors as if all
the offences charged in the indictment were felonies."
15.
Rule 3 of Schedule 1 provided: "Charges for any offences, whether
felonies or misdemeanours, may be joined in the same indictment
if those
charges are founded on the same facts, or form or are a part of a series of
offences of the same or a similar character."
16. The problem that arose from the rule of practice established by R v Jones
was that it lead to inconvenience. If the prisoner
was acquitted of murder
and manslaughter he could not be proceeded against with any other charge on
the indictment without the leave
of the trial judge. The same rule applied if
a second indictment was presented in respect of some other charge that might
otherwise
have been joined under Rule 3 of Schedule 1. The reason for this
was to prevent injustice. There could be inconsistent verdicts;
problems
might arise as to whether the accused could plead autrefois acquit; the Crown
might start with a minor charge as a trial
run so as to test the strength of
the defence; the prosecutor might seek to harass a defendant with a
multiplicity of process in
different courts. It was once thought that once an
indictment was presented, the court could not refuse to stay it as an abuse of
process. But this was rejected by Lord Devlin who said that such a power
existed. His Lordship concluded (at 1202) that there was
no justification for
the rule of practice in R v Jones, and it should no longer have effect; Lord
Reid and Lord Pearce thought likewise.
17. Consequently, in 1964, Lord Parker CJ laid down a new practice direction:
"It will be for the prosecution to frame the indictment
as they think
appropriate, the judge having a complete discretion under s5(3) of the
Indictments Act 1915 to direct that the prisoner
should be tried on any one or
more counts." (See (1964) 1 WLR 1244).
18. In the Code states, the matter was quite clear. The Queensland Code, by
s567, enacted provisions, until 1976, that the section
did not authorise the
joinder of a charge of wilful murder, murder, or manslaughter, with a charge
of any other offence. Western
Australia's Code was in the same terms until
1982 (s585 amended by Act 20/1982, s6). The Tasmanian Code (s311(3)) appears
to still
provide that "No indictment for murder shall contain a charge of any
other crime." In R v Packett [1937] HCA 53; (1937) 58 CLR 190, the High Court held that this
did not prevent two or more counts of murder in the same indictment, although
Starke J (at 204) commented
that this was an undesirable practice owing to the
serious nature of the charge.
19. As to the non-Code States, Victoria and South
Australia followed the
English lead by enacting provisions similar to the Indictments Act 1915. In
New South Wales and the A.C.T.,
the common law continued to apply, except that
s567A of the Crimes Act 1900 (NSW), by an amendment in 1979, abolished the
rule that counts for felonies and misdemeanours cannot be joined in one
indictment,
and s370 limited the number of non-capital counts that could be
joined to three, as well as a six month time limit between the first
and last
of the offences.
20. The position in the Northern Territory was peculiar. Other than for a
brief period between 1930 and
1933, the right to trial by jury had been
abolished, firstly by the Observance of Law Ordinance 1921, and secondly by
the Criminal
Procedure Ordinance 1933, except in the case of murder. Of
necessity, this prevented any other charge being joined with that of
murder.
However, on 1 July 1962 the Criminal Procedure Ordinance 1962 restored the
right to trial by jury in all indictable offences.
At that time, the position
was governed by the Criminal Law Consolidation Act and Ordinance 1876-1960,
s334. In effect this meant
that the common law rules applied except for very
minor changes made by the Act itself. In 1968 the Indictments Ordinance came
into
force. By s8 it was provided that:
"... charges for more than one felony or for more than one
misdemeanour, and charges for
both felonies and
misdemeanours may be joined in the same indictment if those
charges are founded on the same facts, or form
or are a part
of a series of offences of the same or a similar character."
21. Section 19 empowered the court to order separate
trials if the accused:
"... may be prejudiced or embarrassed in his defence by
reason of being charged with more than one
offence in the
same indictment or that for any other reason it is desirable
to direct that the person should be tried separately
for any
one or more offences charged in the same indictment ..."
(This was the same provision as in s597A of the Queensland
Code (inserted in 1976).)
22. There was no statutory provision in the Indictments Ordinance prohibiting
a charge of murder being
joined with any other type of charge. This remained
the position until 1 January 1984 when the present Criminal Code came into
force.
It is to be noted that, except in limited circumstances, if the facts
disclosed some offence other than that charged, the prisoner
was entitled to
be acquitted. The only exceptions were that on a charge of murder, a verdict
of guilty of manslaughter might be
entered; and the Criminal Law Consolidation
Act and Ordinance (s345) permitted the jury to find the accused guilty of an
attempt
in any case, whether the charge was one of felony or misdemeanour.
23. It is often said that the Northern Territory's Criminal Code
is based
upon the Queensland Code, but that is far from being an accurate statement.
Even the most cursory comparison between the
two codes shows how much they
differ. In relation to the provisions I am now called upon to interpret, they
obviously come from
sources other than the Queensland Code as it stood in the
early 1980s. The provisions of s316 of the Northern Territory's Code are
similar to those contained in s576 of the Queensland Code as it existed before
1976, but quite different from the provision in force
thereafter. Prior to
1976, as I have pointed out, s567 of the Queensland Code specifically
prevented a charge other than murder
being joined in an indictment for murder.
Section 567(2) of the Queensland Code as it was after 1976 is in para materia
to s309 of
the Northern Territory Code. The language of the two Queensland
Code provisions have always been in conformity with one another.
When, in
1976, the Queensland Code was amended to permit other charges to be included
on an indictment which contained a murder
charge, s576 was amended to
acknowledge this difference. Why the draftsman of the Northern Territory Code
modelled s316 of the Northern
Territory Code on the pre-1976 Queensland form
and s309 on the post 1976 Queensland form is difficult to fathom. Mr
McDonald, for
the prisoner, submitted that notwithstanding that s309 of the
Code, which permits the joinder of more than one charge in the indictment,
does not have a specific provision expressly excluding murder or manslaughter
from its purview, s316 has this effect nevertheless.
24. Section 316 provides:
"316. INDICTMENT CONTAINING COUNT OF MURDER OR MANSLAUGHTER
(1) Upon an indictment charging a person
with murder he may
be convicted alternatively of manslaughter, but not of any
other offence except as otherwise expressly provided.
(2) Upon an indictment charging a person with manslaughter
he cannot be convicted of any other offence except as
otherwise
expressly provided."
25. The word "indictment" is not the same as a charge or a count. It is
defined by s298 as the written document
which contains the charge. The
present Queensland provision (s576) acknowledges this difference. It says:
"Upon an indictment ...
containing a count of the crime of murder, he may be
convicted on that count of the crime of manslaughter..." etc. (emphasis
mine).
Mr McDonald further submits that, so far as the words "except as
otherwise expressly provided" are concerned, they apply in the
circumstances
of this case only to s318 which permits a verdict of guilty of a dangerous act
contrary to s154, as an alternative
to murder or manslaughter. I note that
s317 also specifically provides for alternatives to murder and manslaughter in
the case of
victims who are children recently born.
26. Mr Wallace, for the Director of Public Prosecutions, conceded that s316
was badly drafted,
but he pointed out that s316 was contained in Div 3 of Part
IX of the Act, "EFFECT OF INDICTMENT: ALTERNATIVE VERDICTS", whereas
s309 was
in Div 2, "INDICTMENTS." Therefore, s316 had to be read as limiting provisions
such as ss320,325 (attempts) and 326 of the
Code. Thus, for example, if the
Crown failed to prove that the victim had died, attempted murder under s316 is
not an alternative.
27. Read literally, Mr McDonald's submission has considerable force, but I do
not consider that I am bound, even when interpreting
the Criminal Code, to
give s309, which is a procedural provision, a limited construction, if on a
consideration of the Act as a whole,
the intention of the legislature is
manifest. Nor should I attempt to interpret the Code by reference to the
practice as it existed
prior to the enactment of the Code unless the
provisions are doubtful or have previously acquired a technical meaning:
Sungrave Pty
Ltd v Middle East Airlines Airlibaw S.A.L.(1974-5) [1975] HCA 6; 134 CLR 1 at
22 per Mason J.
28. One thing that stands out immediately when looking at the provisions of
each of the sections in Division
3 of the Code, is that every section is in
the same form as s316. Each section begins with the words "upon an indictment
charging
a person" and none of the sections refer to counts in an indictment.
This supports the view that the words "upon an indictment charging
a person"
were meant to refer to, where there was more than one count, the relevant
count in the indictment. Further, s309 contains
no express prohibition against
joining other counts to an indictment containing a charge of murder, unlike
the Tasmanian provision,
and the former Queensland and Western Australian
provisions. The fact that s316 is in Div 3 dealing with alternative verdicts,
whereas
s309 is in Div 2, dealing with indictments, is further support for
this construction. Further, s316(1) uses the word "alternatively"
although I
note that this word is not used in s316(2). However, it lends some further
support to Mr Wallace's submision. No injustice
or inconvenience which cannot
be remedied will occur by giving s316 the construction contended for by Mr
Wallace, as s341 gives to
the court a broad discretion to order separate
trials if for any reason the court thinks it desirable, notwithstanding that
there
is no prejudice or embarrassment to the accused. On the other hand,
injustice could occur to an accused person, for the reasons
mentioned by Lord
Devlin, if s316 is construed in the manner contended for by Mr McDonald.
Finally, it would seem most odd that the
Legislative Assembly, which had
previously not enacted any such restriction as Mr McDonald contends for,
should have wished to have
imposed one in 1984, when the trend elsewhere had
been to move in the opposite direction. I therefore conclude that s316 does
not
preclude the joinder of counts permitted to be joined by s309 to a count
of murder in an indictment. The motion to quash the indictment
on this ground
therefore fails.
29. Mr McDonald's next submission was that s309 did not permit the joinder of
the other counts in
the circumstances of this case. Mr Wallace mainly relied
upon a submission that the offences were founded on the same facts and
in any
event were a series of offences committed in the prosecution of a single
purpose. At this point it is necessary to briefly
consider the facts of the
Crown's case.
30. The Crown alleges that the accused and his victim were two of a group of
five men who
came together on Christmas eve, 1991, and had a lot to drink in
the lounge of the caravan where the accused lived. Following an
argument, the
accused went to the bedroom of his caravan, loaded a .303 rifle, pointed it at
his victim, and pulled the trigger.
The rifle jammed and his victim left.
The accused announced that he would shoot his victim if he returned. These
are the main facts
relied upon by the Crown in order to support the first and
second counts.
31. Perhaps half an hour later, the victim returned.
The accused was waiting
with his rifle behind a tree. He shot his victim at a range of four to six
metres. The victim ran off,
but collapsed and eventually died. The accused
in his record of interview claims that he acted in self-defence against a
knife attack,
but the Crown intends to show that, whilst the victim did have a
knife in his possession, the wound to the deceased will demonstrate
that his
arm was not raised, as the accused claims, when the shot was fired. These
facts are relied upon by the Crown in order to
support count three, the murder
charge.
32. Count four relates to what happened about thirty minutes later when
police arrived.
The police were attempting to find their way to the caravan.
One had a torch which was lit. The accused fired at the light. The
accused
claimed that he was concerned that his victim, or a friend of his victim, or
both, might be coming back.
33. Mr Wallace
contended, and Mr McDonald conceded, that the whole of the
evidence the Crown intended to call, would be relevant and admissible
in
relation to the charge of murder.
34. There are few authorities which discuss the meaning of the phrase
"founded on the same
facts." In R v Barrell and Wilson (1979) 69 Crim App R
250, the test laid down was whether the charges have a "common factual
origin."
Although in that case the events were not closely connected in
proximity or time, they were held to be properly joined. Thus it would
appear
that if the third and fourth charges are best explained by reference to the
facts of the first and second charges, the charges
have the necessary factual
origin. It seems to me that it could not be said that the facts of the third
or fourth counts would be
properly explained without reference to the facts of
the first and second counts, and that therefore they have the necessary
factual
nexus to permit the joinder on this basis. A similar result was
reached by the Full Court in R v Demirok, supra, at 249 where the
charges
arose from one series of events occurring in close proximity and time and
involving the same persons. Although the persons
involved in count four in
this case are not the same, the Crown case is that the accused thought that
the deceased may have been
coming back to the caravan, and in my opinion the
events in this case were connected in a way which could properly be described
as
a series which occurred in close proximity and time. On either basis, it
seems to me that the offences are all "founded on the same
facts."
35. If I am wrong in this conclusion, I would nevertheless hold that on the
Crown case the offences as alleged were a series
committed in the prosecution
of a single purpose, namely to kill the victim.
36. I therefore reject the motion to quash on this
ground and hold that the
charges are properly joined.
37. The next submission was that the indictment was "vexatious and
embarrassing"
and I should quash it pursuant to s339(1)(a). No submission was
made that the conduct of the prosecutor was vexatious in the sense
that the
proceedings were an abuse of process; rather the force of the submission was
that the proceedings were calculated to embarrass,
firstly, by distracting the
jury from its main task of determining the issues raised by count three, and
secondly, by the place on
the indictment of the murder charge. I was
referred, in support of this submission, to the observations of Muirhead J in
R v Siugzdinis
and Mauri (1984) 32 NTR 1 at 9 and 11-12 which I have
considered, which relate to the power of the court to quash or stay
proceedings where, due to a multiplicity
of charges, an accused may be
embarrassed. Muirhead J observed (at 11):
"But when the indictment is presented in the criminal
jurisdiction of this court and is met by motion to quash,
the court must determine the matter in accordance with s339.
This
will involve considerations of the processes of the
trial - the governing principle being one of fairness.
Multiplicity of
counts may embarrass, joinder of charges not
sufficiently associated in nature, time or place may also do
so. Joinder of trivial
or unnecessary counts may be regarded
as vexatious, joinder of accused persons in the one
indictment may embarrass. A judge
in determining the many
issues which may arise for consideration under this section
must, however, keep in mind the practical
aspects of trial
by jury."
38. However, it is clear any embarrassment due to multiplicity of charges
does not require automatically
that the indictment be quashed or that some or
all of the charges be stayed. The alternative course under s341, to order
separate
trials, must also be considered. I am not convinced that the
additional charges are embarrassing in any sense other than the possible
risk
of compromise verdicts, which I will discuss later. They could not be said to
be trivial, and although close together in time,
they could not be said to be
all so much part of the same episode that it was unnecessary to sever the
separate acts into separate
offences. I think any danger to the accused due
to embarrassment could be adequately met by ordering separate trials. I
consider
that the motion to quash should be dismissed.
39. This leaves the question of whether the count for murder should be
separately
tried. As I am not persuaded that there would be any actual
prejudice or embarrassment, other than the risk of compromise verdicts,
which
could not be overcome by adequate warnings and instruction to the jury, the
main question is whether this risk is sufficient
or whether, for any other
reason, separate trials should be ordered.
40. Under the Northern Territory's Criminal Code, the offences
of murder and
manslaughter are not the same as those offences at common law, and have their
own peculiarities which are not always
easy to understand or explain. The
main reason for this is s154, which establishes a crime unknown to the common
law, viz dangerous
act. The effect of the provisions of the Code relating to
murder, manslaughter and dangerous act, is that in some circumstances,
what
would amount to murder or manslaughter in other jurisdictions is the crime of
dangerous act in this Territory. The origin of
s154 may be traced to the
suggestion of Barwick CJ in R v O'Connor [1980] HCA 17; (1980) 146 CLR 64 at 87. In the
context of a murder charge, and the alternative charge of manslaughter, where
lack of intent due to intoxication or
lack of actual foresight is involved,
not only must the jury be charged on the elements of what is a dangerous act
(s154(1)), but
also in relation to the circumstances of aggravation referred
to in s154(3) and (4); and it is necessary, if a verdict of guilty
of a
dangerous act is reached, to receive separate verdicts in relation to each
circumstance of aggravation. Thus, in a typical
case, the jury must consider
separately murder, manslaughter, dangerous act and at least one, if not two,
circumstances of aggravation.
To add to the jury's difficulties, a trial
judge is required to explain the difference between the foresight attributable
to a "reasonable
person," which, by reason of s31(2), is relevant to a charge
of manslaughter, and the foresight attributable to an "ordinary person
similarly circumstanced" which is required by a charge under s154(1). As
well, intoxication for the purposes of murder, manslaughter
and s154(4) has
differing relevance and differing legal tests and standards and even the onus
of proof varies in certain respects
so far as manslaughter is concerned.
41. In the context of the present case, it seems reasonably probable that I
shall have to direct
the jury on provocation, and self-defence in relation to
the murder charge. As intent is also an issue, both by reason of the fact
that the accused denies any intent, and also, possibly, by reason of
intoxication, manslaughter might arise either because of provocation
(where
there is an intent to kill) or because of lack of intent but actual foresight
of death occurring as a consequence of discharging
the weapon. Thus the
issues to be tried in respect of the charge for murder alone are both serious
as well as complex.
42. When
one has regard to the two main other charges, which are two
different forms of attempted murder under s165 of the Code, and both
of which
also require an intent to kill, it is evident that these charges are liable to
distract the jury from their main task.
In considering counts one and four,
the intent to be proven must be to kill. Count two is present on the
indictment if the intent
is to cause grievous harm. Thus the accused could be
convicted in relation to the first and second episodes with either intent.
But in relation to the first episode (the attempted shooting inside the
caravan), the jury must agree on which intent it is, whilst
in relation to the
second episode (the murder), they need not, as long as they are agreed in the
result. In relation to count four,
the intent must be to kill; nothing else
will do. Thus the jury would be required to consider the state of mind of the
accused at
three separate stages, leading to the risk of compromised verdicts.
In relation to each stage, the defences will not necessarily
be the same.
Provocation for instance seems to be inapplicable to count four, although as
mistake may well arise, it is by no means
impossible, and in this situation
provocation can be an absolute defence, and not merely a defence which reduces
murder to manslaughter
as in the case of count three (see s34(1)). If it does
arise, there are also conceptual difficulties in distinguishing between "acts
not likely to cause death or grievous harm" on the one hand (s34(1)(e)), and
"an act likely to endanger human life" (s165(b)) on
the other. Finally,
dangerous act is an alternative to counts one and two and would also have to
be separately considered, with
the relevant circumstances of aggravation under
s154(4).
43. As opposed to that, I recognise that I have to also weigh up the cost
to
the Crown if separate trials are ordered. But the cost in this case would not
be significant. Only a few witnesses, mostly police,
are involved. There are
no other factors in favour of hearing the charges together. There is no
serious risk that if the accused
were to be acquitted of murder he could not
be convicted of the other offences. Mr Wallace submitted that there may be a
doubt as
to whether counts one, two and four were "similar offences" within
the meaning of s18 of the Code (which deals with autrefois acquit).
I am
unable to see how any such doubt exists. If attempted murder is indeed or
ever could be a similar offence to murder, it is
strange that s316 of the Code
expressly excludes that offence as an alternative verdict to murder. If the
purpose of the Crown is
to charge attempted murder as a separate count because
they are "similar offences" and in order to side-step s326 of the Code, I
do
not think that I should facilitate that purpose.
44. In conclusion, I consider that there ought to be a separate trial of the
murder charge from the other charges, because of the complexities involved in
having to decide more than the murder charge in this
case, and the risk of
compromise verdicts.
45. Accordingly, I order that count three in the indictment be tried
separately from
counts one, two and four. Obviously I expect the Crown to
proceed with the murder charge first. If this does not occur, I would
entertain a further motion under s339 of the Code.
46. I direct that these reasons be not published except to the parties until
after the trial on the charge for murder is concluded.