R v Arnott (Ruling No 2)

[2006] VSC 521

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE CRIMINAL DIVISION

No. 1510 of 2005

THE QUEEN

v

RUSSELL LAURENCE ARNOTT

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF RULING:	20 December 2006
CASE MAY BE CITED AS:	R v Arnott (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2006] VSC 521

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CRIMINAL LAW – Murder – Manslaughter – Jury entitled to return manslaughter as alternative verdict.

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APPEARANCES:	Counsel	Solicitors
For the Queen	Mr P Rose SC	Office of Public Prosecutions
For the Accused	Mr J Desmond	Doogue & O’Brien
HER HONOUR:

1. The accused man, Russell Laurence Arnott faces a charge that he murdered Daniel Zigante at Altona North on 3 March 1985. Both parties have now closed their respective cases. Mr Arnott asks for a ruling from the Court that manslaughter be left as an alternative verdict open to the jury. The prosecution opposes that course.

2. I now provide reasons for my decision that the evidence in the trial is such as would support a possible alternative verdict of manslaughter and that manslaughter should be put to the jury.

3. Counsel for the defence relies upon the evidence in the police record of interview of statements by the accused man which support a finding by the jury that he had an intent which did not amount to the requisite murderous intent when he fired the shot which killed Mr Zigante.

4. Senior counsel for the prosecution relies upon evidence from the expert witness, the scientist, Mr Ross, to the effect that the gun shot residue on the back of the deceased man’s jumper indicated that the shot which killed him had been fired at very close range. He points out that this evidence was not contested by the defence and, indeed, the accused man sought to rely upon Mr Ross’s evidence to argue that he could not have been the shooter of the shot which killed Mr Zigante, because he had maintained, when interviewed by police, that he fired the fatal shot when Mr Zigante was between 20 and 50 feet away from him.

5. In my view, notwithstanding whether or not Mr Ross’s evidence was challenged by the defence, it is open to the jury to accept or reject his testimony. The jury may or may not be persuaded by the prosecution’s argument that it should infer from Mr Ross’s evidence that Mr Arnott had the relevant murderous intent.

6. In his record of interview with police, Mr Arnott made a number of statements relevant to the issue of his intent. The transcript of the record of interview sets out the following questions and answers:

Q 102 And what was your intention to do with the firearm if

you did get caught?

A	Must – that must’ve been to use it because I wouldn’t have had it otherwise. …
Q	152 Now, where did you shoot him?
A	I aimed at the back of the head with a 22 pistol from 50 feet away. I didn’t think I’d have a hope in hell of shooting him.
Q	153 But did you ---?
A	I ---
Q	154 Shoot ---?
A	I – I just – I just tried to shoot to scare him aware (sic) away to run off but I hit him. …
Q	162 Did you go up to him at all?
A	I should’ve but I ….. – I – I panicked and I – I did the wrong thing – I was doing the wrong thing all the way through it. I was out of control.
Q	Okay. Now, haw -, how far do you think you were from the guard when you shot? 542
A	Probably about 40 feet – between 20 and 40 feet, something like that.
Q	543 The information that we have, based on the examination of the scene suggests that the guard was shot a lot closer than what you’re saying.
A	No, he was – he was a long way away and it was just a fluke shot. …
Q	556 What was your intention when you shot the firearm ?
A	Thing – the thing that was going through my mind was that, “ I can’t get caught because if I go to jail I … to my life to look after my 2 younger children later on.” I honestly wasn’t thinking of my own welfare, I was thinking of the family’s welfare in that - in that I couldn’t continue to provide support there and, “If I – if I – if I get caught I’ll be in jail”.
Q	557 So, when you shot the firearm what did you intend to do
by firing that gun?
A	I don’t know whether I was trying to scare him off or kill him or just give myself time to get away, just – just – I dunno, I panicked and just – and just – and just fired the gun and he screamed and fell and I ran off.
Q	558 You said earlier in the interview that you just aimed at his
head?
A	No, not just I went like that and went bang. It just – without even – without even – it was just a fluke shot. Who would ‘ve thought you’d hit anyone with a – with a 22 from 30 to 40 feet away – a 22 pistol. I didn’t think I’d have done that. …
Q	And what did you see then [after the car containing the guard had first arrived] ? 622
A	…. – I saw him get out of his car so I lay on the ground beaten. And then at the last minute I thought …. ….. that I was sick. And then I panicked when he walked away and I tried to take advantage of the situation so I wouldn’t get caught and I fired a shot at him just to – just to scare him off …. …
Q	674 Did you shoot him ?
A	Yes, I did, but it was a mistake when I was really sick, mentally.

1. The videotaped record of interview is in evidence. In my view, there is evidence as to alleged admissions by the accused man which could be relied upon by the jury to conclude that Mr Arnott lacked the necessary murderous intent. The evidence as to the alleged admissions that he shot the deceased man could, nevertheless, be relied upon by the jury to conclude that he was guilty of manslaughter by unlawful and dangerous act or by criminal negligence.

2. I will direct the jury that it is entitled to return an alternative verdict of manslaughter.

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