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Supreme Court 16 September 2013

R v Kearnes

[2013] NSWSC 1395

Homicide
CRIMINAL LAW PRACTICE AND PROCEDURE WHETHER VERDICT OF MANSLAUGHTER VIABLE

Citation: R v Kearnes [2013] NSWSC 1395
Court: Supreme Court of New South Wales
Date: 16 September 2013
Judge: Button J

Background

The accused stood trial for the murder of a man shot multiple times in the head and neck in Wagga Wagga in the early hours of 21 July 2011. The Crown alleged the accused had travelled from Tumut with an associate, had been seen beforehand with a sawn-off rifle and ammunition, and had made a statement of intent to kill. The deceased's body had also been mutilated at the scene.

The Crown put its case on two bases: either the accused was the shooter himself, or he was present and liable as a principal through a joint criminal enterprise to kill, with his own independent intention to kill. The defence case was a straightforward denial of presence, with the accused unable to recall where he had been at the relevant time.

Before summing up, Button J was required to decide whether to leave manslaughter as an alternative verdict for the jury's consideration. Both the Crown prosecutor and defence counsel took the position that it should not be left.

  • Whether manslaughter was a "viable" verdict on the evidence presented at trial, such that it should be left to the jury as an alternative to murder.
  • Whether the structure of the Crown case, founded partly on joint criminal enterprise, required particular caution in approaching that question.

Decision

Button J acknowledged the well-established principle that trial judges should err on the side of caution when deciding whether to leave alternative verdicts, particularly in cases involving accessorial liability or joint criminal enterprise. His Honour noted the position of both parties as significant, though not determinative, and proceeded to examine whether manslaughter was genuinely viable on the evidence.

His Honour accepted that a theoretical scenario could be constructed in which the accused might be guilty of manslaughter rather than murder. For example, if the two men had set out only to frighten the deceased with a firearm and the principal then formed an independent intention to kill beyond what the accessory had foreseen, the accessory might have been liable only for manslaughter. However, Button J was clear that this scenario bore no connection whatsoever to the evidence or arguments actually presented at trial.

The Crown's case placed no reliance on extended joint criminal enterprise ("common purpose"). Its case was binary: the accused was either the shooter, or he was present and equally intending to kill through a joint enterprise. The defence case was equally binary: the accused was simply not there. There was nothing in the evidence, from either side, that raised any suggestion of a lesser intention or an unforeseeable escalation by the other party.

Button J concluded that leaving manslaughter would not assist the jury; it would confuse, and indeed mystify, them. Accordingly, his Honour declined to leave manslaughter as an alternative verdict.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The applicable test for leaving an alternative verdict of manslaughter is whether such a verdict is "viable" on the evidence in the trial, a principle confirmed across multiple High Court and Court of Criminal Appeal decisions including Gillard, R v Kanaan, and Carney v R; Cambey v R.

  • Where the Crown case rests partly on accessorial liability or joint criminal enterprise, particular caution is required before declining to leave manslaughter, but caution alone does not compel the alternative verdict where the evidence does not support it.

  • A verdict is not viable merely because a theoretical scenario supporting it can be intellectually constructed. The scenario must have some foundation in the evidence and issues actually raised at trial.

  • The positions of both the Crown and defence counsel carry significant weight in the analysis, even though they are not determinative of the trial judge's decision.

  • Leaving an alternative verdict that has no grounding in the evidence risks confusing or mystifying the jury, which is itself a reason to decline to leave it: see The Queen v Chai [2002] HCA 12.

Legislation and Cases Referenced

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

Legislation: No specific legislation cited in the judgment.