Citation: R v Paton (No 2) [2013] NSWSC 1616
Court: Supreme Court of New South Wales
Date: 30 October 2013
Judge(s): Button J
Background
The accused stood trial for murder. The Crown's case was that a co-offender shot the deceased four times in the head and neck at close range in Wagga Wagga, and that the accused was complicit in that murder either through joint criminal enterprise or as an accessory before or at the fact.
In a recorded police interview, the accused denied being present at all. In alleged admissions to his aunt after the shooting, he indicated he had gone to the scene with the co-offender to "sort out" the deceased, but claimed he was across the road when the shooting occurred. The accused did not give evidence at trial, though he had entered a guilty plea to accessory after the fact of murder at arraignment.
Before closing addresses began, the trial judge was asked to resolve whether manslaughter should be left to the jury as an alternative verdict. The Crown opposed it; senior counsel for the accused supported it.
Legal Issues
- Whether there was sufficient evidence to make manslaughter a viable alternative verdict on the facts presented
- Whether the accused's alleged agreement to "sort out" the deceased could constitute complicity in an unlawful and dangerous act causing death
- Whether a witness's stated belief about what the accused and co-offender intended could constitute evidence of a relevant agreement between them
Decision
Button J identified the governing test as whether manslaughter was "viable on the evidence," drawing on R v Kanaan [2005] NSWCCA 385. His Honour acknowledged the general principle that trial judges should err on the side of caution and leave manslaughter where there is any doubt about viability.
The defence argument rested on two evidentiary foundations. First, the accused's alleged admission to his aunt that the two men went to "sort out" the deceased, suggesting a common purpose of confrontation or assault rather than murder. Second, evidence from a witness (Ms Cameron) that she understood the men were going to "frighten someone." Button J rejected the second limb outright, finding that Ms Cameron was describing her own belief, not anything she had heard the accused or the co-offender agree to. Her evidence was therefore not evidence of any relevant agreement.
On the alleged admissions to the aunt, Button J accepted for the sake of argument that "sorting out" meant a confrontation or assault. Even on that interpretation, his Honour found the causation link was fatally absent. The deceased died from four bullet wounds at close range. There was no evidence of a prior confrontation, raised voices, forced entry, or any physical struggle. The death was not caused by the kind of unlawful and dangerous act that the accused could be said to have agreed to participate in.
Button J concluded that any hypothesis connecting the accused's alleged agreement to the actual cause of death was "highly speculative" and contrary to the evidence of both parties. Leaving manslaughter in those circumstances would only serve to confuse the jury, and the alternative verdict was not left.
Orders Made
No orders were made in this decision.
Key Takeaways
- The test for leaving manslaughter as an alternative verdict in a murder trial is whether manslaughter is "viable on the evidence," confirmed here by reference to R v Kanaan [2005] NSWCCA 385.
- A general caution applies in favour of leaving alternative verdicts where doubt exists about viability, but that caution does not require a judge to leave a verdict founded on highly speculative hypotheses that are contrary to the evidence.
- Causation is a critical threshold: even where an accused may have agreed to participate in an unlawful and dangerous act, manslaughter is not viable if the act causing death was different in character from the agreed act and no evidence links the two.
- Witness evidence of personal belief or assumption about what others intended does not constitute evidence of an agreement between co-offenders for the purposes of establishing joint criminal enterprise.
- Button J treated the absence of any evidence of a confrontation, struggle, or escalating dispute as significant in rejecting the proposition that a plan to "sort someone out" had any causal connection to death by multiple gunshot wounds.
Legislation and Cases Referenced
Cases:
- R v Kanaan [2005] NSWCCA 385; (2005) 157 A Crim R 238; (2005) 64 NSWLR 527
- Carney v R; Cambey v R [2011] NSWCCA 223
- Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
- Huynh v The Queen [2013] HCA 6
- R v Stokes; R v Difford (1990) 51 A Crim R 25
- Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378
- R v Moffatt [2000] NSWCCA 174
Legislation: No specific legislation was cited in the judgment.