R v Paton (No 2)

[2013] NSWSC 1616

Supreme Court

New South Wales

Medium Neutral Citation:	R v Paton (No 2) [2013] NSWSC 1616
Hearing dates:	30 October 2013
Decision date:	30 October 2013
Jurisdiction:	Common Law
Before:	Button J
Decision:	Manslaughter is not to be left to the jury
Catchwords:	CRIMINAL LAW - whether manslaughter should be left as alternative verdict - charge of murder on basis of joint criminal enterprise or accessorial liability - whether case for manslaughter viable - manslaughter verdict not viable on evidence - manslaughter not left to jury
Cases Cited:	Carney v R; Cambey v R [2011] NSWCCA 223 Huynh v The Queen [2013] HCA 6 Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 R v Kanaan [2005] NSWCCA 385; (2005) 157 A Crim R 238; (2005) 64 NSWLR 527 R v Moffatt [2000] NSWCCA 174 R v Stokes; R v Difford (1990) 51 A Crim R 25
Category:	Procedural and other rulings
Parties:	Regina Christopher John Paton
Representation:	Counsel: B Hughes SC (Crown) E Wilson SC (defendant) Solicitors: Solicitor for Public Prosecutions (Regina) Pogson Cronin (defendant)
File Number(s):	2011/359425

EX TEMPORE Judgment

1. The issue has arisen whether manslaughter should be left to the jury in this murder trial. The Crown Prosecutor submits that it should not be. Senior counsel for the accused, on reflection, submits that it should. It is agreed between the parties, and I also agree, that this issue should be determined by me before the Crown Prosecutor commences his final address.

1. The test, in a nutshell, is whether manslaughter is viable on the evidence (see R v Kanaan [2005] NSWCCA 385; (2005) 157 A Crim R 238; (2005) 64 NSWLR 527). The general approach of the New South Wales Court of Criminal Appeal and the High Court of Australia is that trial judges should generally err on the side of caution and leave manslaughter if there is any doubt about its viability (see, for example, Carney v R; Cambey v R [2011] NSWCCA 223).

1. The Crown case is that Peter Kearnes shot the deceased in Wagga Wagga with an intention to kill and that the accused was complicit in that crime, either as a principal in the first degree by way of joint criminal enterprise (see Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 and Huynh v The Queen [2013] HCA 6), or as a principal in the second degree, that is, as an accessory before or at the fact (see generally R v Stokes; R v Difford (1990) 51 A Crim R 25).

1. In an ERISP, the accused denied that he was in Wagga Wagga at all. In alleged admissions to his aunt, after the shooting, the accused said, amongst other things, words to the effect that he and Peter Kearnes went to the scene to "sort the deceased out", that he was at the scene but did not "do it", and that he, the accused, was actually across the road at the time of the fatal shooting.

1. The accused did not give evidence in this trial, although he did purport to plead guilty to accessory after the fact of murder at the start of the trial when he was arraigned. At that stage he did not plead guilty to manslaughter.

1. In other words, there is nothing from the evidence of what the accused said in his interview with police or by his plea to support the proposition that he was complicit in some lesser crime than murder that could found liability for manslaughter.

1. Ms Tamsin Cameron is a witness who was, it does not seem to be disputed, in the company of Peter Kearnes and the accused on the evening before the murder. In cross-examination the following exchange took place between her and senior counsel for the accused:

"Q. 'And once they sort of mentioned that they were going over to Wagga'. That's what it says, is that right?

A. That's correct.

Q. 'I didn't really know who they were going to do or what was going on, and I didn't really believe that they'd do it, I just thought they were going to go over and frighten someone'. That's what you told the police, is that right?

A. That's correct, that's what it says.

Q. When you read that, does that - do you have a recollection of saying that or does it surprise you that you've said that?

A. No because they did - they did mention Wagga at one stage, but I didn't know if they were actually going there."

Submissions

1. Senior counsel for the accused submitted that, in short, the jury could accept the evidence of the aunt and conclude that the accused was indeed part of a joint criminal enterprise to "sort out" the deceased; that is, to confront him or assault him, perhaps severely. And he submitted that the jury could interpret the evidence of what Ms Cameron had said to the police as supporting the proposition that the accused and Peter Kearnes had agreed to frighten the deceased, perhaps with the firearm she gave evidence that she had seen on that evening.

1. In short, he submitted that assaulting the deceased or frightening him with a firearm could constitute an unlawful and dangerous act and that act could have caused the death of the deceased, in the sense of having substantially contributed to his death (see generally Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 and R v Moffatt [2000] NSWCCA 174). He submitted that the jury could find that the accused was complicit in such an unlawful and dangerous act causing death and that, therefore, manslaughter should be left to the jury because it is viable on the evidence.

1. The Crown Prosecutor submitted that Ms Cameron was speaking of what she believed or assumed, not recounting directly or indirectly what the two men had said. Accordingly, it is no evidence of any agreement between the accused and Peter Kearnes, he submitted, to frighten the deceased with a firearm or anything else.

1. As for the alleged admission to the aunt of the accused, the Crown Prosecutor emphasised that the act causing death was, in fact, the firing of four bullets into the head and neck of the deceased at close range. A "sorting out", if it be some kind of confrontation or physical assault had, he submitted, nothing to do with the death of the deceased. In other words, he submitted that the act causing death was not a physical assault or anything like it. Accordingly, he submitted that even if the accused said those words to his aunt, and even if they encompassed something that could perhaps have been unlawful and dangerous, that act had nothing to do with causing the death of the deceased.

1. The Crown Prosecutor also emphasised that there were no injuries to the body of the deceased other than the four bullet wounds to which I have referred.

1. Finally, he emphasised that there was no evidence from any source of a confrontation or assault gone wrong or taken too far by Peter Kearnes.

Determination

1. I respectfully agree with the characterisation by the Crown Prosecutor of the evidence of Ms Cameron. To my mind, she was speaking to the police of her belief, and not of anything she had heard Peter Kearnes or the accused say or agree in. Accordingly, her evidence is not evidence of complicity on the part of the accused in frightening the deceased. On that basis, I put her evidence to one side with regard to this application.

1. As for what was allegedly said to the aunt of the accused, I interpret "sorting out" someone as, indeed, meaning some form of confrontation or assault. It was, after all, allegedly said to the aunt in the context of the accused telling her that Peter Kearnes was upset about the deceased having mistreated one of the children of Mr Kearnes. It is also noteworthy that that alleged statement was part of a conversation in which it is alleged that the accused was generally exculpatory with regard to any involvement on his part in the murder.

1. Let it be assumed that the jury, contrary not only to my understanding at this stage of the case for the accused but also contrary to the Crown case, accepted that the accused entered into an agreement with Peter Kearnes merely to "sort out" the deceased in the sense of a confrontation or assault. Even then, it could not be said that either of such events could be remotely connected to the death of the deceased. By that I mean, it was not a confrontation that caused the death of the deceased and it was not a physical beating; rather, it was being shot repeatedly.

1. I also consider it significant that there is no evidence from any source of a confrontation or a beating leading to or somehow developing into the discharge of the firearm. To the extent that there was no sign of forced entry to the flat of the deceased, that the deceased had no other injuries, and that no witness has given evidence of hearing raised voices before the shooting, if anything the evidence is to the contrary.

1. It follows that I do not consider that it is viable to say, even interpreting the evidence of the aunt in the way for which senior counsel for the accused contends, that the accused was complicit in an unlawful and dangerous act that caused the death of the deceased, even if one interprets the concept of criminal causation very broadly.

1. Accordingly, although it may be possible to construct a hypothesis supportive of the application, I respectfully consider that such a hypothesis is highly speculative, contrary to the evidence, contrary to my understanding of the cases of the two parties, and would only serve to confuse the jury thoroughly. For those reasons, I do not regard manslaughter as viable in this trial, and I do not propose to leave it to the jury.

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Decision last updated: 05 November 2013