R v Kearnes - [2013] NSWSC 1395

Supreme Court

New South Wales

Medium Neutral Citation: R v Kearnes [2013] NSWSC 1395
Hearing dates: 16 September 2013
Decision date: 16 September 2013
Jurisdiction: Common Law
Before: Button J
Decision:
Manslaughter is not to be left to the consideration of the jury.

Catchwords: CRIMINAL LAW - practice and procedure - whether to leave alternative verdict of manslaughter - charge based partly on joint criminal enterprise - whether verdict of manslaughter viable - manslaughter not left as alternative verdict
Cases Cited: Carney v R; Cambey v R [2013] NSWCCA 223
Gillard v The Queen [2003] HCA 64; 219 CLR 1
Huynh v The Queen [2013] HCA 6
Johns v The Queen [1980] HCA 3; (1980) 143 CLR 108
McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
R v Kanaan [2005] NSWCCA 385; (2005) 64 NSWLR 527
The Queen v Chai [2002] HCA 12; (2002) 128 A Crim R 101
The Queen v Nguyen [2010] HCA 38
Category: Procedural and other rulings
Parties: Regina
Peter John Kearnes
Representation: Counsel:
W Creasey (Regina)
P Williams (defendant)
Solicitors:
Solicitor for Public Prosecutions (Regina)
Hemsley and Associates (Kearnes)

File Number(s): 11/315156

EX TEMPORE Judgment

The question has arisen whether manslaughter, in this trial for murder, should be left to the jury for their consideration in my summing-up.

The position of the Crown Prosecutor is that manslaughter should not be left, and he has not addressed the jury upon it whatsoever. The position of defence counsel is, on reflection, identical; namely, that manslaughter should not be left, and no submissions with regard to the topic were made in the final address to the jury of defence counsel.

It is well known that the position of the parties is significant but not determinative with regard to the question under consideration: see R v Kanaan [2005] NSWCCA 385; (2005) 64 NSWLR 527 at [75].

Background

The Crown case is that, in the early hours of 21 July 2011, the accused with an associate named Christopher Paton travelled in a motor vehicle from Tumut to Wagga Wagga. Previous to that it is alleged that the accused was seen at his home with a sawn off rifle, some ammunition, and was heard to say words to the effect of, "I'm going to kill the fucking paedophile." It is alleged that that witness was asked to monitor a police scanner whilst the accused and Mr Paton were away from the home.

At Wagga Wagga the deceased was shot in the head and neck a number of times, and his body mutilated.

The Crown case is that the accused was either the shooter, and therefore a principal in the first degree, or a principal in the first degree pursuant to a joint criminal enterprise and his presence at the scene: see Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 and Huynh v The Queen [2013] HCA…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kearnes

Details

AGLC: R v Kearnes [2013] NSWSC 1395
Case: [2013] NSWSC 1395
Decision Date: 16 September 2013

CaseChat Overview and Summary

In the case of R v Kearnes, the respondent was charged with murder in the Supreme Court of Queensland. The respondent was accused of killing a person, and the prosecution relied partly on the theory of joint criminal enterprise. The respondent sought to have the alternative verdict of manslaughter left to the jury. The Supreme Court was required to determine whether it was appropriate to leave the alternative verdict of manslaughter for the jury to consider, given the charge partly based on joint criminal enterprise.

The court considered whether it was appropriate to leave the alternative verdict of manslaughter to the jury. The court noted that the prosecution's case relied partly on the theory of joint criminal enterprise, and that this theory required a finding that the respondent had the requisite intent for murder. The court held that it was not appropriate to leave the alternative verdict of manslaughter to the jury, as the theory of joint criminal enterprise required a finding of intent for murder, and manslaughter was not a viable alternative verdict in this case.

The Supreme Court of Queensland held that it was not appropriate to leave the alternative verdict of manslaughter to the jury. The court found that the prosecution's case relied partly on the theory of joint criminal enterprise, which required a finding of intent for murder. The court held that manslaughter was not a viable alternative verdict in this case, as it did not align with the theory of joint criminal enterprise.

No orders were made in relation to the alternative verdict of manslaughter. The trial proceeded on the charge of murder alone.

Orders