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

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.

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).

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).

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…

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 Paton (No 2)

Details

AGLC: R v Paton (No 2) [2013] NSWSC 1616
Case: [2013] NSWSC 1616
Decision Date: 30 October 2013

CaseChat Overview and Summary

The case of R v Paton (No 2) involved a dispute between the prosecution and the defendant, Paton, who was charged with murder. The court was required to determine whether the jury should be left with manslaughter as an alternative verdict, in addition to the charge of murder based on joint criminal enterprise or accessorial liability. The central issue was whether the evidence presented warranted leaving manslaughter as a viable option for the jury to consider.

The court examined the evidence and the principles governing the availability of alternative verdicts. It concluded that there was insufficient evidence to support a manslaughter verdict. The court noted that for manslaughter to be left to the jury, it must be a viable verdict based on the evidence presented. In this case, the evidence did not support a manslaughter verdict, as the prosecution's case focused on joint criminal enterprise or accessorial liability. The court found that leaving manslaughter as an alternative would have been misleading, as the evidence did not support such a verdict.

The court decided that the manslaughter verdict was not viable based on the evidence. The prosecution's case did not provide a basis for a manslaughter conviction, and leaving it as an alternative would have been inappropriate. The court held that the trial judge was correct in not leaving manslaughter to the jury. The decision underscored the importance of ensuring that alternative verdicts are supported by the evidence and do not mislead the jury.

No further orders were made beyond the court's decision on the availability of manslaughter as an alternative verdict. The court's ruling was that manslaughter should not be left to the jury in this case, given the evidence presented.

Orders