R v Kevin Gall; R v Bruce Gall (No 4) [2012] NSWSC 1355

R v Kevin Gall; R v Bruce Gall (No 4) [2012] NSWSC 1355

The Crimes Act 1900 and the Criminal Procedure Act 1986 did not exclude the common law principle that a lesser included offence may be left to the jury where its elements are included in, and alleged expressly or by necessary implication by, the greater offence charged. Accessory after the fact to manslaughter is a lesser offence included in accessory after the fact to murder, and it was therefore available as an alternative verdict despite not being separately pleaded.

Jurisdiction
Australia
Judgment Date
06 September 2012
Procedural Posture
Common Law Criminal / Procedural Ruling at the Close of Bruce Gall's Case on Whether an Alternative Verdict Should Be Left to the Jury
Outcome
Bruce Gall's submission was rejected.
Legal Topics
['indictment' 'alternative Verdict' 'accessory After the Fact' 'murder' 'manslaughter']
['criminal Law' 'criminal Procedure'] ['indictment' 'alternative Verdict' 'accessory After the Fact' 'murder' 'manslaughter']

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Procedural Posture

Common Law Criminal / Procedural Ruling at the Close of Bruce Gall's Case on Whether an Alternative Verdict Should Be Left to the Jury

Legal Issues

  1. 1 ['Whether the form of the indictment charging Bruce Gall as accessory after the fact to murder excluded an alternative verdict of accessory after the fact to manslaughter.' 'Whether s 349 of the Crimes Act 1900 excluded the availability of an alternative verdict of accessory after the fact to manslaughter.' 'Whether the jury should be instructed that an alternative verdict of accessory after the fact to manslaughter is available if Kevin Gall is convicted of manslaughter.']

Ratio Decidendi

The Crimes Act 1900 and the Criminal Procedure Act 1986 did not exclude the common law principle that a lesser included offence may be left to the jury where its elements are included in, and alleged expressly or by necessary implication by, the greater offence charged. Accessory after the fact to manslaughter is a lesser offence included in accessory after the fact to murder, and it was therefore available as an alternative verdict despite not being separately pleaded.

Court Disposition

Bruce Gall's submission was rejected.

Orders

  • ['Reject the submission that the jury ought not be instructed that an alternative verdict of accessory after the fact to manslaughter is available in respect of Bruce Gall in the event that Kevin Gall is convicted of manslaughter.']