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

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.

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.

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.

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.

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…

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 3)

Details

AGLC: R v Paton (No 3) [2013] NSWSC 1617
Case: [2013] NSWSC 1617
Decision Date: 31 October 2013

CaseChat Overview and Summary

The case of R v Paton (No 3) involved the accused, Paton, facing criminal charges. The central issue before the court was whether certain portions of the evidence provided by a particular witness were indispensable to the prosecution's case, particularly in the context of a circumstantial case. This necessitated a determination of whether the case could proceed to the jury without the contested evidence. The court was tasked with applying the relevant legal tests to decide the admissibility and indispensability of the evidence in question.

The legal issues central to this case revolved around the application of the "Shepherd" direction, a judicial tool used to assess the indispensability of certain evidence in a criminal trial. The court had to consider whether the witness's evidence constituted an indispensable intermediate fact, which is a crucial element in a circumstantial case. The court also had to evaluate whether the prosecution's case could be sufficiently established without the contested evidence. This involved a detailed examination of the evidence presented and its significance in the overall context of the case.

The court meticulously examined the evidence and concluded that the contested portions were not indispensable intermediate facts. The reasoning involved a detailed analysis of the evidence's role in the prosecution's case and its contribution to the overall circumstantial evidence. The court found that the prosecution could sufficiently establish their case without the contested evidence. Consequently, the application for a "Shepherd" direction was refused, and the case was allowed to proceed to the jury with the available evidence.

Orders