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]. Background 4The Crown case is that, in the early hours of 21 July 2011, the accused with an associate named Christopher Paton travelled in a motor vehicle from Tumut to Wagga Wagga. Previous to that it is alleged that the accused was seen at his home with a sawn off rifle, some ammunition, and was heard to say words to the effect of, "I'm going to kill the fucking paedophile." It is alleged that that witness was asked to monitor a police scanner whilst the accused and Mr Paton were away from the home. 5At Wagga Wagga the deceased was shot in the head and neck a number of times, and his body mutilated. 6The Crown case is that the accused was either the shooter, and therefore a principal in the first degree, or a principal in the first degree pursuant to a joint criminal enterprise and his presence at the scene: see Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 and Huynh v The Queen [2013] HCA 6. 7It was convenient for that principal in the first degree based upon joint criminal enterprise, as opposed to acts committed by that individual, to be referred to throughout the trial and with the jury as "the accessory". 8To be clear, the Crown case is that each man was at the scene pursuant to a joint criminal enterprise to kill, and that each man possessed his own intention to kill. 9The defence case is that the accused was not at the scene, not involved in the shooting, but that the accused is unable to recall what he was doing or indeed where he was. 10It can be seen therefore that the Crown case is that the accused was at the scene and intended to kill, whether he was the shooter or not. In sharp contrast, the defence case is that the accused was not at the scene and had nothing to do with the shooting. Determination 11It is certainly true that the Court of Criminal Appeal of this State and the High Court of Australia have called upon trial judges to err on the side of caution with regard to this issue: see, for example, Carney v R; Cambey v R [2013] NSWCCA 223. That is especially so in cases, as here, where the Crown case is founded, at least in part, on accessorial liability: see Gillard v The Queen [2003] HCA 64; 219 CLR 1 and The Queen v Nguyen [2010] HCA 38. 12It is possible to construct a hypothesis whereby the accessory is guilty of manslaughter, not murder. For example, one could imagine a scenario whereby the two men travelled to Wagga Wagga with an intention of performing an unlawful and dangerous act, namely frightening or threatening the deceased with a loaded firearm, but the principle went further and formed an intention to kill or inflict grievous bodily harm, states of mind that the accessory had not foreseen as possibilities, and thereafter the principal shot and killed the deceased. 13It is possible to construct or imagine such a scenario. But it is thoroughly divorced from the evidence and the issues in this trial. 14A test for leaving manslaughter to a jury's consideration can be summarised as being whether or not such a verdict is "viable" on the evidence in the trial: see Gillard v The Queen at [6], R v Kanaan at [75] and Carney v R; Cambey v R at [22]. It is noteworthy that the Crown case places no reliance at all on extended joint criminal enterprise or what used to be called "common purpose": see Johns v The Queen [1980] HCA 3; (1980) 143 CLR 108 and McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 15I repeat that the Crown case is simply that the accused was either the shooter or the accessory, and either way he was present with an intention to kill. 16I also emphasise that the defence case is that he was simply not at the scene (although he is not sure where he actually was) and had nothing to do with the shooting. 17On the evidence in this trial, I consider that manslaughter is unviable. There is nothing in the prosecution or defence evidence or submissions to support, or even faintly to suggest, the scenario that I posited a moment ago, or a similar scenario. 18I interpolate to say that that there were perhaps submissions made briefly by defence counsel to the effect that perhaps Mr Paton had committed the shooting on his own. But of course that gives rise to entirely separate issues, and if that were the case the accused would be entitled to be acquitted entirely, and not found guilty of manslaughter. 19On the evidence and issues in this trial I consider that leaving manslaughter for consideration of the jury would only serve to confuse them thoroughly. Indeed, I think it would mystify them: see The Queen v Chai [2002] HCA 12; (2002) 128 A Crim R 101 at [18]. 20It follows that, although I have borne in mind that I must approach this issue by erring on the side of caution, I do not propose to leave manslaughter to the jury. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 November 2013