R v Paton (No 2) [2013] NSWSC 1616

Supreme Court New South Wales

Medium Neutral Citation: R v Paton (No 2) [2013] NSWSC 1616 Hearing dates: 30 October 2013 Decision date: 30 October 2013 Jurisdiction: Common Law Before: Button J Decision: Manslaughter is not to be left to the jury Catchwords: CRIMINAL LAW - whether manslaughter should be left as alternative verdict - charge of murder on basis of joint criminal enterprise or accessorial liability - whether case for manslaughter viable - manslaughter verdict not viable on evidence - manslaughter not left to jury Cases Cited: Carney v R; Cambey v R [2011] NSWCCA 223 Huynh v The Queen [2013] HCA 6 Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 R v Kanaan [2005] NSWCCA 385; (2005) 157 A Crim R 238; (2005) 64 NSWLR 527 R v Moffatt [2000] NSWCCA 174 R v Stokes; R v Difford (1990) 51 A Crim R 25 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

EX TEMPORE Judgment 1The issue has arisen whether manslaughter should be left to the jury in this murder trial. The Crown Prosecutor submits that it should not be. Senior counsel for the accused, on reflection, submits that it should. It is agreed between the parties, and I also agree, that this issue should be determined by me before the Crown Prosecutor commences his final address. 2The test, in a nutshell, is whether manslaughter is viable on the evidence (see R v Kanaan [2005] NSWCCA 385; (2005) 157 A Crim R 238; (2005) 64 NSWLR 527). The general approach of the New South Wales Court of Criminal Appeal and the High Court of Australia is that trial judges should generally err on the side of caution and leave manslaughter if there is any doubt about its viability (see, for example, Carney v R; Cambey v R [2011] NSWCCA 223). 3The Crown case is that Peter Kearnes shot the deceased in Wagga Wagga with an intention to kill and that the accused was complicit in that crime, either as a principal in the first degree by way of joint criminal enterprise (see Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 and Huynh v The Queen [2013] HCA 6), or as a principal in the second degree, that is, as an accessory before or at the fact (see generally R v Stokes; R v Difford (1990) 51 A Crim R 25). 4In an ERISP, the accused denied that he was in Wagga Wagga at all. In alleged admissions to his aunt, after the shooting, the accused said, amongst other things, words to the effect that he and Peter Kearnes went to the scene to "sort the deceased out", that he was at the scene but did not "do it", and that he, the accused, was actually across the road at the time of the fatal shooting. 5The accused did not give evidence in this trial, although he did purport to plead guilty to accessory after the fact of murder at the start of the trial when he was arraigned. At that stage he did not plead guilty to manslaughter. 6In other words, there is nothing from the evidence of what the accused said in his interview with police or by his plea to support the proposition that he was complicit in some lesser crime than murder that could found liability for manslaughter. 7Ms Tamsin Cameron is a witness who was, it does not seem to be disputed, in the company of Peter Kearnes and the accused on the evening before the murder. In cross-examination the following exchange took place between her and senior counsel for the accused: "Q. 'And once they sort of mentioned that they were going over to Wagga'. That's what it says, is that right? A. That's correct. Q. 'I didn't really know who they were going to do or what was going on, and I didn't really believe that they'd do it, I just thought they were going to go over and frighten someone'. That's what you told the police, is that right? A. That's correct, that's what it says. Q. When you read that, does that - do you have a recollection of saying that or does it surprise you that you've said that? A. No because they did - they did mention Wagga at one stage, but I didn't know if they were actually going there."