R v Paton (No 3)

[2013] NSWSC 1617

Supreme Court

New South Wales

Medium Neutral Citation:	R v Paton (No 3) [2013] NSWSC 1617
Hearing dates:	30 October 2013
Decision date:	31 October 2013
Jurisdiction:	Common Law
Before:	Button J
Decision:	The matters of the firearm, the ammunition and the threat to kill are not indispensable intermediate facts.
Catchwords:	CRIMINAL LAW - application for a "Shepherd" direction - whether portions of evidence of a particular witness an indispensable intermediate fact - applicable test - circumstantial case - whether case to go to they jury without the evidence - application refused.
Cases Cited:	Davidson v R [2009] NSWCCA 150; (2009) 75 NSWLR 150; (2009) 195 A Crim R 406 R v Murray (1987) 11 NSWLR 12; 30 A Crim R 315 Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
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

Judgment

1. Defence counsel has submitted that I should direct the jury that there are a number of indispensable intermediate facts in this circumstantial Crown case. He has submitted that I should direct the jury that they are "links in the chain", about which the jury would need to be satisfied beyond reasonable doubt before they could reason to the position that the Crown has proven the guilt of the accused of murder beyond reasonable doubt.

1. All of the facts under discussion are derived solely from the evidence of Ms Tamsin Cameron. The first is that on 20 July 2011 a firearm was in the living room of the house of Mr Peter Kearnes, and in the general presence of the accused. The second is that ammunition was in the same location, and that the accused was aware of it. The third is that Mr Kearnes made an emotional threat to kill "the fucking paedophile" in the presence of the accused on the same occasion.

1. The Crown Prosecutor resists the application on the basis that those facts are not indispensable to the success of the prosecution case. He submits that there is ample other evidence that the accused either took part in a joint criminal enterprise with Mr Kearnes to murder the deceased, or intentionally assisted or encouraged Mr Kearnes, with knowledge of the offence of murder that Mr Kearnes was to commit or was committing.

1. The Crown Prosecutor has accepted however that, in light of the importance of the evidence of Ms Cameron to the Crown case, a "Murray direction" should be given by me. I respectfully accept that I should give some form of such a warning: see R v Murray (1987) 11 NSWLR 12; 30 A Crim R 315.

1. The question of how a trial judge should determine whether a fact in a circumstantial case is indispensable in the sense discussed in Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 and many subsequent cases has recently been answered by the NSW Court of Criminal Appeal. In Davidson v R [2009] NSWCCA 150; (2009) 75 NSWLR 150; (2009) 195 A Crim R 406, Simpson J, with the agreement of Spigelman CJ and James J, said the following at [74] of her Honour's judgment:

"Whether a fact on which the Crown relies as part of a circumstantial case is or is not 'indispensable' may be tested by asking whether, in the absence of evidence of that fact, there would nonetheless be a case to go to the jury. If the answer is in the affirmative, even if the Crown case is weakened, even

considerably, the fact is not 'indispensable'. Where the answer is in the negative, the fact is 'indispensable' and the jury should be directed accordingly."

1. It follows that, in order to determine the application, I need to consider and briefly outline the Crown case as a whole. I shall do so in rough chronological order. I shall leave aside of course the facts under consideration. Due to the exigencies of the situation I will not seek to identify the source of each piece of evidence. For abundant caution, I will leave out of my conspectus some other evidence from Ms Cameron that is hotly disputed.

1. The accused and Peter Kearnes each lived in Tumut as at 20 and 21 July 2011. They had met some weeks before at a hotel and become acquaintances. The accused was in the habit of doing odd jobs for Mr Kearnes for money.

1. In the afternoon of 20 July 2011 the accused drove back from Canberra to Tumut and was driving fast.

1. On the evening of 20 July 2011 the two men were at the home of Mr Kearnes in Dalhunty Street, Tumut. They left there together and travelled together a short distance to the home of Mr Peter Minogue, and brought him back to the home of Mr Kearnes. They left Ms Cameron and Mr Minogue there. In the home was a police scanner capable of monitoring events in Wagga.

1. The two men travelled together in a motor vehicle belonging to Ms Cameron to Wagga. That was despite the fact that a motor vehicle belonging to Mr Kearnes was available at his home. They did not leave the Tumut area before 2.29am. The journey takes at least one hour.

1. At about 4.48am in the apartment of the deceased in Wagga, Mr Kearnes used a .22 calibre firearm to shoot the deceased repeatedly in the head and neck. There had not been forced entry, and there were no other injuries to the deceased.

1. On two occasions, at 5.28 and 5.36am, the accused entered a BP service station very close to the scene of the crime. On each occasion the accused approached a bin in the forecourt of the service station.

1. Some time roughly around 5.40am or so, Ms Veronica Douglas saw the accused sitting on a fence, very close to the scene of the shooting. The accused said that he was there because of an argument with his girlfriend, who was drunk in a nearby motel. He climbed the internal stairs of the apartment block, past the flat of the deceased, and told Ms Douglas the same thing to her face at the front door of her unit, directly above the flat of the deceased.

1. At 6am Ms Fay Gordon saw two men in or near a Ford Territory, very near the scene of the crime. One of the men resembled, in her opinion, the accused to some degree.

1. At 6.18am Mr Smith saw from his vehicle a person very broadly consistent with the accused standing at the intersection that is very close to the scene of the crime.

1. At 6.40am the Ford Territory to which I referred a moment ago departed from its parking spot.

1. Later that morning at about 7 or 7.30am the accused and Mr Kearnes were together in a rural area called Tumblong between Wagga and Tumut. After that the accused and Mr Kearnes returned to the home of Mr Kearnes.

1. At 5.10pm on 21 July 2011 Mr Kearnes and the accused were in the motor vehicle of Mr Kearnes travelling north at Yass, quite some distance from Tumut. Nobody else was in the vehicle. The accused was the driver. He was speeding and not displaying his L plates. The accused was seemingly heading to Sydney, a place that he had never been to before in his life.

1. On 2 September 2011, the accused was spoken to by police at the home of Mr Kearnes. Later on the same day he engaged in a recorded interview. In the original discussion and in the recorded interview, it is not disputed that the accused told five lies material to the events of 21 July 2011.

1. Some time in October 2011 the accused had a conversation with his aunt. Amongst other things he said with regard to the shooting that he and Mr Kearnes went there to "sort the deceased out", that they both went up to the flat, and that he was not at the scene but close by when the shooting occurred.

1. On the Crown case he also told his aunt that Ms Cameron drove the motor vehicle on the evening. It is accepted by admission that any such assertion was not correct.

1. On 10 November 2011 the accused was arrested.

1. On 21 October 2013 the accused purported to plead guilty, whilst represented by senior counsel, to a count of accessory after the fact of murder.

1. Considering that brief and incomplete conspectus as a whole, and analysing it as a circumstantial case with regard to whether the accused was complicit in the shooting, I consider that there indeed would be a case to go to the jury in the absence of the asserted indispensable intermediate facts.

1. Of course all facts in a circumstantial case need to be considered in the context of each other, and their cumulative effect considered. But to focus on but one fact and one inference that could be derived from it, I consider that it would be open to infer that the accused lied about Ms Cameron being the driver because he possessed a consciousness of guilt about his own role in having driven Mr Kearnes to Wagga, just as he was driving Mr Kearnes the following afternoon in Yass; he, the accused, himself complicit in the murder by way of joint criminal enterprise, or by way of intentional and knowing assistance to Mr Kearnes by that act of driving to the scene of the crime.

1. It follows that I do not consider that the matters of the firearm, the ammunition, and the threat to kill are indispensable intermediate facts. Accordingly, I do not propose to direct the jury that those matters must be established beyond reasonable doubt before the jury could reason towards satisfaction beyond reasonable doubt of the elements of the offence of murder by way of complicity.

**********

Decision last updated: 05 November 2013