R v PMJ[2010] QSC 302

SUPREME COURT OF QUEENSLAND

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 Crown would not proceed on the basis that the murder had been committed by the two accused acting in concert and that while the proposed amendment did not contain the word "alternatively" that was the basis upon which the Crown sought to make its case.

To amplify that a little, I can refer to the evidence of the eight witnesses who have given evidence so far and to the prosecutor's opening.  It is apparent that the case for the Crown is that for a period of time leading up to about 10.30 in the morning of the 25th of September 2007 JP was in the sole care of the accused HPK.  The accused PMJ was absent from the house.  He returned at approximately 10.30 and after a very short period HPK left the house and remained away from it for all material times thereafter.

The Crown does not suggest that anything happened or even could have happened in the short time that both were present. It alleges that either HPK inflicted the injuries that led to JP's death while he was in her sole care before 10.30 in the morning or that PMJ did so subsequent to that time and before he rang the ambulance to report JP's injured state while JP was in his sole care.  No other persons were present and it is, I think, common ground that one or other of these two must have inflicted the relevant injuries, but not both.

The question before me is whether an indictment so charging is good in law.  If it is not, then I should not allow the amendment to bring it into being.  I approach the question as if the proposed indictment contained the word "alternatively". The learned Crown prosecutor did not object to my approaching it in that manner, and it seems to me that to look solely at the form of the indictment without appreciating that the charges are brought in the alternative would be simply to defer the question which must ultimately be dealt with of whether the Crown can properly join in the one indictment alternative counts against two people, one of whom and only one of whom, must have done the acts constituting the offence.

In support of an affirmative answer to that question, Ms Loury relied upon s 568(12) of the Criminal Code and on no other provision.  The amendment must stand or fall on the question whether the joinder is authorised by that subsection.  Unless it is so authorised, the two counts against the respective accused cannot be joined.

The subsection provides:

"(12) Any number of persons charged with committing different or separate offences arising substantially out of the same facts or out of closely related facts so that a substantial part of the facts is relevant to all the charges may be charged in the same indictment and tried together."

In opposing the amendment, Mr Smith for HPK submitted that the case as now proposed to be run by the Crown was not one where a substantial part of the facts was relevant to all the charges.  He referred me to a number of cases, particularly to R v Crawford [1989] 2 Qd R 443 where it was held that “facts” in the phrase just quoted, that is where thirdly appearing in the subsection, related to the facta probanda as Ambrose J put it in reasons for judgment.

His Honour pointed out in that case that there was a factum probans in the case against one accused, which was an element in, that is a factum probans in, the case against the other.

In the present case, I think the position is the same.  The death of JP is an element in each count.

Ms Loury relied upon that and, to a lesser extent, upon the short period of time during which both accused were present at the house to support the view that this element of subs (12) is satisfied.  I accept her submission.  However, that is not the end of the matter.

Mr Smith also submitted that this was not a case where there were “different or separate offences” within the meaning of that phrase in the subsection.  He submitted that in Crawford and in R v Potter and McKenzie [1959] Qd R 378, R v Danes and Taylor [1965] Qd R 338 and Rintel v R (1985) 17 A Crim R 308, there were allegations of multiple offences.  There is, I think, force in that submission.

Ms Loury sought to counter it by submitting that in the present case, there are two different counts of murder.  They are in the alternative, but one is said to have been committed before 10.30 in the morning, the alternative, by the other accused afterwards.  That is so, but the time of the death is a mere particular, and only one person is alleged to be a murderer.

The elements of the offence that are alleged demonstrate, to my mind, only one offence of murder. In my judgment, that means that subs (12) has no application.  This is not a case where two persons have been charged with committing “different or separate offences”.

It follows that the form of the amendment, if allowed, would produce a joinder of counts not authorised by the Criminal Code.  For that reason, the amendment should be refused.  The application for leave to amend is dismissed.