R v Kearnes [2013] NSWSC 1395

Supreme Court New South Wales

Medium Neutral Citation: R v Kearnes [2013] NSWSC 1395 Hearing dates: 16 September 2013 Decision date: 16 September 2013 Jurisdiction: Common Law Before: Button J Decision: Manslaughter is not to be left to the consideration of the jury. Catchwords: CRIMINAL LAW - practice and procedure - whether to leave alternative verdict of manslaughter - charge based partly on joint criminal enterprise - whether verdict of manslaughter viable - manslaughter not left as alternative verdict Cases Cited: Carney v R; Cambey v R [2013] NSWCCA 223 Gillard v The Queen [2003] HCA 64; 219 CLR 1 Huynh v The Queen [2013] HCA 6 Johns v The Queen [1980] HCA 3; (1980) 143 CLR 108 McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 R v Kanaan [2005] NSWCCA 385; (2005) 64 NSWLR 527 The Queen v Chai [2002] HCA 12; (2002) 128 A Crim R 101 The Queen v Nguyen [2010] HCA 38 Category: Procedural and other rulings Parties: Regina Peter John Kearnes Representation: Counsel: W Creasey (Regina) P Williams (defendant) Solicitors: Solicitor for Public Prosecutions (Regina) Hemsley and Associates (Kearnes) File Number(s): 11/315156

EX TEMPORE Judgment 1The question has arisen whether manslaughter, in this trial for murder, should be left to the jury for their consideration in my summing-up. 2The position of the Crown Prosecutor is that manslaughter should not be left, and he has not addressed the jury upon it whatsoever. The position of defence counsel is, on reflection, identical; namely, that manslaughter should not be left, and no submissions with regard to the topic were made in the final address to the jury of defence counsel. 3It is well known that the position of the parties is significant but not determinative with regard to the question under consideration: see R v Kanaan [2005] NSWCCA 385; (2005) 64 NSWLR 527 at [75].