R v Jacobs (No 7) [2013] NSWSC 948

Supreme Court New South Wales

Medium Neutral Citation: R v Jacobs (No 7) [2013] NSWSC 948 Hearing dates: 9, 11 July 2013 Decision date: 11 July 2013 Jurisdiction: Common Law - Criminal Before: Button J Decision: Manslaughter is to be left for consideration by the jury. Catchwords: CRIMINAL LAW - whether manslaughter should be left to jury - whether verdict of manslaughter viable - cautious approach required - position of parties relevant but not determinative - manslaughter left as alternative verdict Cases Cited: Carney v R; Cambey v R [2011] NSWCCA 223 Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107 Category: Procedural and other rulings Parties: Regina Michael Allan Jacobs Representation: Counsel: P Barrett (Crown) T Hoyle SC (defendant) Solicitors: Solicitor for Public Prosecutions (Crown) Zahr Lawyers (defendant) File Number(s): 2012/89001

ex tempore Judgment 1The issue at this stage of the proceedings is whether manslaughter should be left to the jury. The Crown Prosecutor submits that manslaughter is simply not viable on the evidence. 2Defence counsel submits that manslaughter should be left. Earlier, in submissions in support of that proposition, he drew attention to the evidence that the shot fired from the .38 calibre revolver hit the deceased when the deceased was more than three metres away from the muzzle of that weapon. He has also referred in his address to the possibility that the deceased was taking cover as trained, and moved into the path of a bullet not fired at him. He also submitted to the jury that the words "I'm sorry" said repeatedly by the accused at a subsequent stage at the scene could have been a reference to him having fired without intending to hit the deceased. 3Furthermore, right at the end of defence counsel's address he asked the jury to consider whether, if they were satisfied beyond reasonable doubt that the accused was the shooter, they were also satisfied beyond reasonable doubt of one of the three requisite mental elements of murder. 4To my mind, the evidence is very strong that whoever fired the shot was very close to the deceased. I will not review all of the evidence supportive of that proposition. It is also noteworthy that when the accused was shot, that is, within no more than two seconds after the deceased had been shot, he, the accused, was very close to the Glock pistol. 5Separately, to my mind, it is quite possible that two shots were fired from the revolver at the scene and not one. 6There is no question of a partial defence that would reduce culpability for murder to manslaughter. Nor are there any complications arising from the principle of accessorial liability with regard to murder and manslaughter. 7All of those matters militate firmly against leaving manslaughter for the consideration of the jury. On the other hand, the test is a low one and it is simply whether manslaughter is a "viable" proposition. Also, the fact that one counsel submits that it should be left is significant, though not of course determinative. 8The learned Crown Prosecutor accepted in discussion of this question that the Court of Criminal Appeal of this State has adopted a cautious approach to the question over the years. Perhaps it is broadly analogous to the position with regard to defences not relied upon, as explained in Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107. 9A recent example of the approach of the Court of Criminal Appeal is to be found in Carney v R; Cambey v R [2011] NSWCCA 223. In that case, although the Crown case was that the deceased had been hit repeatedly to the head with a piece of metal and thereafter kicked or stomped on, the Court of Criminal Appeal held that it had been an error for the trial judge not to leave manslaughter for the jury's consideration. 10Following that cautious approach to the question, and although at first blush the proposition that this could have been manslaughter perhaps appears to be almost fanciful, on reflection I consider that manslaughter is viable, although just barely. It follows that I will leave manslaughter for the consideration of the jury.