R v Kevin Gall; R v Bruce Gall

Judgment 1At the close of his case, the accused Bruce Gall submitted that it was not open to me to leave to the jury the alternative verdict of accessory after the fact to manslaughter and that accordingly the jury ought not be directed as to the availability of such an alternative verdict. 2The submission has two bases: first, that the way in which the indictment is pleaded excludes the alternative verdict; and secondly, that s 349 of the Crimes Act 1900 (the Act) does not contemplate an alternative verdict, which is accordingly excluded. 3The indictment relevantly charges that: "1. KEVIN ANTHONY GALL On 16 April 2010 at Girraween in the State of New South Wales did murder Neil Leopold GREEN. Section 18 Crimes Act 1900 (NSW) ... 2. BRUCE EDWARD GALL Knowing the said Kevin GALL to have committed the said murder, afterwards on 16 April 2010, at Girraween in the State of New South Wales did receive, harbour, maintain and assist the said Kevin GALL Section 349(1) Crimes Act (NSW)" 4Mr Bruce Gall submitted that had count 2 of the indictment been intended to encompass accessorial liability in respect of both murder and manslaughter, it would have either had to refer specifically to each of those offences rather than solely to murder, or, alternatively, that it ought have used a generic term such as unlawful homicide to signify that both murder and manslaughter were encapsulated. He also pointed to the fact that the only section relevantly referred to in the indictment was s 349(1) of the Act. 5Section 349 relevantly provides: "(1) Every accessory after the fact to murder shall be liable to imprisonment for 25 years." 6He pointed to the absence of reference in the indictment to s 350, which provides: "An accessory after the fact to any other serious indictable offence is liable to imprisonment for 5 years, except where otherwise specifically enacted." 7He referred me to cases where the Crown had charged an accused in the indictment with being accessory after the fact to murder and, in the alternative, to manslaughter (such as R v Walsh; R v Sharp [2004] NSWSC 111; 142 A Crim R 140) as being consistent with his submission that the alternative verdict should be expressly charged. 8There appears to have been only a single occasion in New South Wales in which the point has been argued and determined: R v Jones (No. 9) [2007] NSWSC 1160; 173 A Crim R 331 (Jones). In Jones, the accused Lydia Jones, was charged with being an accessory after the fact to murder in the following terms: "On 9 October 2005 at Kangy Angy in the State of New South Wales Adam Samuel Jones, Adam Jones, Samuel Jones and Elizabeth Jean Jones did murder William Smith and that Lydia Jones knowing the said Adam Samuel Jones, Adam Jones, Samuel Jones and Elizabeth Jean Jones to have committed the said serious indictable offence of murder of William Smith on 9 October 2005 at Kangy Angy in the state of New South Wales, did assist, maintain, harbour or receive the said Adam Samuel Jones, Adam Jones, Samuel Jones and Elizabeth Jean Jones." 9In Jones, it was common ground that the jury should be informed that if they acquitted the principal offender of the charge of murder, then it would follow that Ms Jones should also be acquitted of being an accessory after the fact to murder. However, the Crown submitted that the jury should be informed that it was open to them, in those circumstances, to return a verdict of guilty of being an accessory after the fact to manslaughter. This course was opposed by Ms Jones. 10Buddin J rejected Ms Jones' submission as being contrary to "long-established authority" and referred to R v Richards (1877) 2 QBD 311 (Richards); R v Carter and Savage [1990] 2 Qd R 371; 47 A Crim R 55 (Carter and Savage) and Winning v R [2003] WASCA 245 (Winning). 11Submissions were made on behalf of Ms Jones, which were substantially similar to those put on behalf of Mr Bruce Gall before me: namely that the alternative verdict would need to be specifically pleaded. However, Mr Levet, on behalf of Mr Bruce Gall, put the additional submission that, properly construed, s 349 of the Act operated to exclude the alternative verdict. 12In Richards, the prisoners charged with murder were found guilty of manslaughter. The two Richards were found guilty as accessories after the fact but the objection was made that the prisoners being charged in the indictment as accessories after the fact to murder could not be found guilty of having been accessories after the fact to manslaughter. Cockburn J (Mellor, Grove, Lindley and Hawkins JJ concurring) said, at 313: "...a man charged with murder may be convicted of manslaughter, because murder involves the lesser charge of felonious homicide; so, for the same reason, one charged as accessory to murder may be convicted as accessory to manslaughter. The one thing follows from the other." 13Richards was referred to in Carter and Savage, where the Queensland Court of Criminal Appeal held: "It is also a rule of long standing that, upon the trial of an accessory after the fact where the principal offence is said to be murder, the accessory is entitled to assert that the principal offender committed manslaughter only and although charged with being an accessory after the fact to murder he may be convicted of being an accessory after the fact to manslaughter: Russell on Crime Vol. 1 p. 167, R. v. Greenacre (1837) 8 C. & P. 35; 173 E.R. 388, R. v. Richards (1877) 2 Q.B.D. 311." 14Mr Levet, on behalf of Mr Bruce Gall, sought to distinguish these cases on the basis that Richards derived from the common law and Carter and Savage and Winning derived from States where the criminal law was codified. Furthermore, he submitted that I ought not follow Jones on the basis that it was incorrectly decided. 15Although Mr Levet's argument was based on the form of the indictment as well as the wording of the Act, I consider that it effectively amounted to a single argument. If the Act, properly construed, neither excludes an alternative verdict, nor requires it to be separately alleged, then there can be no proper objection to its availability when the indictment charges accessory after the fact to murder but not to manslaughter. The pleading point is, accordingly, intertwined with the question of statutory construction. 16Three of the States, Queensland, Western Australia and Tasmania have codified their criminal law. By contrast, New South Wales is a hybrid jurisdiction in the sense that the criminal law has not been codified; rather, the common law has been supplemented by legislation. Howard's Criminal Law (5th ed, Fisse) said of jurisdictions such as New South Wales: "These statutes differ from the codes in that they are incomplete and presuppose the continued existence of the common law so far as consistent with their terms. This difference has two important consequences: the general principles of criminal responsibility derive in form as well as substance from the common law and common law offences continue in existence unless abrogated by statute." [Emphasis added.] 17The continued effect and application of the common law principles relating to the availability of alternative verdicts is evident from the scant specific provision made for them in the Act and the Criminal Procedure Act 1986. For example, s 61Q of the Act provides for the availability of certain alternate verdicts in relation to sexual offences, including attempt. Section 162 of the Criminal Procedure Act provides for the alternative verdict of attempt on a trial for any indictable offence. Section 163 of the Criminal Procedure Act provides that if a person who is tried for a serious indictable offence may be acquitted of that offence but found guilty of some other offence, the person is not liable to further prosecution on the same facts for that other offence. 18None of these provisions excludes the common law principle referred by Buddin J in Jones which was expressed in the following passage from R v Winner (1989) 39 A Crim R 180 at 181, per Roden J, with whom Hunt and Allen JJ agreed: "It is trite law that quite apart from express statutory provisions, a jury may properly return a verdict of not guilty of the offence charged but guilty of a lesser offence. That is in accordance with what is frequently described as the principle that the greater includes the less. It is, however, subject to an important and stringent limitation. That is that such a verdict may only be returned if each element of the lesser offence of which the accused is convicted, is also an element of the greater offence with which he was charged, and has been alleged against him either expressly or by necessary implication in the indictment." 19The jury's right to return an alternative verdict in such circumstances, gives rise to a correlative duty imposed on the trial judge to instruct a jury upon possible facts leading to an available outcome in addition to a count specifically charged: Pemble v The Queen [1971] HCA 20; 124 CLR 107. Just as manslaughter is a lesser offence to murder, the charge of accessory after the fact to manslaughter is a lesser offence to the charge of accessory after the fact to murder. So much is reflected in the different penalties for such offences (five years as opposed to 25 years). 20In my view, while the principle is of general application to all indictable offences, the position is a fortiori in the case of murder and manslaughter where historical concepts relating to the single crime of unlawful homicide apply (see R v Elfar [2000] NSWCCA 255; 115 A Crim R 64, per Sperling J). 21The difference between murder and manslaughter is pre-eminently in the mind of the accused person. This has been found to have an effect on the mental element required to be established on a charge of accessory after the fact to murder or manslaughter. 22The matter was considered in R v Stone [1981] VR 737. At the end of the Crown case, the accused submitted that there was no case to answer on counts which included being an accessory after the fact to murder. The accused submitted that it was necessary for the Crown to prove knowledge by the accused at the relevant time of facts or acts which would allow it to be said that the crime of which the principal was guilty had in fact been committed to the knowledge of the accused at the time at which he was alleged to be acting as accessory. 23Crockett J said, of the charge of accessory after the fact to murder: "The acts, or facts, which must be shown to have been within the knowledge of the accessory at the relevant time do not have to include matters that would prevent what otherwise would be murder from being murder or which would make the offence an offence less than murder. That is to say, it is sufficient if the acts, or facts, of which the accused is shown to have knowledge are such from which it could be said that he must have inferred that the principal had by a voluntary act shot and killed his wife and that he had done so with the intention either to kill or cause grievous bodily harm. The evidence adduced by the Crown, including particularly the matters to which I have already referred in outlining the evidence, would allow an inference of such a kind to be found to have been drawn by the accused, so that the knowledge that he had at the relevant time was that the principal had committed the felony of murder. Of course, as matters then existed, it may have been that the shot was fired in self- defence, so as to reduce the crime to manslaughter. It may have been that the shot was fired under the influence of provocation, so as to reduce the crime to manslaughter. I do not think that it has to be shown by the Crown that the accused had knowledge of the acts, or facts, which would have allowed him to have drawn the inference that the offence committed was in fact something less than murder. It may have turned out to be so, although in the present case we now know it did not, because Eddington was convicted of the murder of his wife. But even if it had turned out that the offence was not murder but the lesser offence of manslaughter, the fact that in this case the accused need not have been shown to have knowledge other than that a felonious homicide had been committed by the principal with the intent of killing or causing grievous bodily harm is borne out by the case referred to in Tevendale's Case, supra [[1955] VLR 95], R v Richards (1877) 2 QBD 311." 24Furthermore, in circumstances where it is accepted that an alternative verdict of manslaughter is available on a charge of murder and does not need to be separately charged in the indictment, it would be anomalous if a person charged with being an accessory after the fact to murder could not be convicted of being an accessory after the fact to manslaughter unless he were specifically charged. As was said by Smart AJA in R v King [2004] NSWCCA 20; 59 NSWLR 515, at 532: "While a criminal trial is an adversarial proceeding, the basis of the approach of Barwick CJ in Pemble is that the judge must be astute to secure for the accused a fair trial according to law and that this involves leaving a lesser offence to the jury, even if disclaimed by the parties, where conviction of the lesser offence is a viable outcome. It is in the public interest that alternative verdicts which are open on the evidence be considered so that a correct outcome is achieved." 25For these reasons, I reject the submissions put on behalf of Mr Bruce Gall that the alternative verdict of accessory after the fact to manslaughter is not available in the event that Mr Kevin Gall is convicted of manslaughter. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 March 2013