Citation: R v Paton (No 3) [2013] NSWSC 1617
Court: Supreme Court of New South Wales
Date: 31 October 2013
Judge(s): Button J
Background
The accused stood trial for murder. The Crown alleged he was complicit in the shooting of the deceased in Wagga Wagga, either as a participant in a joint criminal enterprise with the principal offender, Mr Kearnes, or by intentionally assisting or encouraging Mr Kearnes with knowledge of the intended offence. The Crown's case was entirely circumstantial.
During the trial, defence counsel applied for what is known as a "Shepherd direction." This direction requires a judge to instruct the jury that certain intermediate facts in a circumstantial case are "indispensable links in the chain," meaning the jury must be satisfied of those facts beyond reasonable doubt before reasoning toward a conclusion of guilt.
The three facts in dispute all derived from the evidence of a single witness, Ms Cameron. They were: that a firearm was present in Mr Kearnes's home on 20 July 2011 and in the general presence of the accused; that ammunition was also present and the accused was aware of it; and that Mr Kearnes made a threatening statement about the deceased in the accused's presence on the same occasion.
Legal Issues
- Whether the three facts drawn from Ms Cameron's evidence constituted "indispensable intermediate facts" for the purposes of a Shepherd direction
- What test a trial judge should apply to determine whether a fact in a circumstantial case is indispensable under the Shepherd framework
- Whether the Crown's case remained sufficient to go to the jury even without those three facts
Decision
Button J identified the applicable test as that stated by Simpson J (with the agreement of Spigelman CJ and James J) in Davidson v R [2009] NSWCCA 150. The test asks whether, absent the disputed fact, there would nonetheless be a case to go to the jury. If the answer is yes, the fact is not indispensable, even if its absence would considerably weaken the Crown case.
Applying that test, Button J surveyed the Crown's circumstantial case without reference to the three disputed facts. That case included the accused travelling with Mr Kearnes from Tumut to Wagga overnight, being observed in close proximity to the crime scene shortly after the shooting, returning with Mr Kearnes to the Tumut region afterward, being found driving Mr Kearnes toward Sydney the following afternoon, making five lies to police in a recorded interview, and telling his aunt that he and Mr Kearnes went to "sort the deceased out" and that they both went to the flat.
Button J concluded that this body of evidence, assessed as a whole, was sufficient to send the case to the jury without the three Ms Cameron facts. A key example was that the accused's false attribution of the driving to Ms Cameron could support an inference of consciousness of guilt about his own role in driving Mr Kearnes to the scene of the murder. Because the case remained viable without the disputed facts, those facts were not indispensable.
The application for a Shepherd direction in respect of the three facts was therefore refused. The Crown Prosecutor separately accepted that a Murray direction (a warning about reliance on a single witness) should be given given Ms Cameron's importance to the case, and Button J indicated he would give such a direction.
Orders Made
No orders were made in this decision.
Key Takeaways
- The test for whether a fact is "indispensable" in a circumstantial case, as confirmed by the NSW Court of Criminal Appeal in Davidson v R, asks whether the case would still go to the jury in the absence of that fact. If so, the fact is not indispensable, even if its removal substantially weakens the Crown's position.
- A Shepherd direction is not warranted simply because a particular piece of evidence is significant or damaging to the accused. The direction is reserved for facts without which the prosecution case would not be viable at all.
- In a circumstantial case, all facts must be considered in combination for their cumulative effect, but the viability of the overall case is assessed independently of any single disputed intermediate fact.
- Where a single witness contributes evidence of critical importance to the Crown case, a Murray direction (a warning to the jury about reliance on that witness) may be appropriate even when a Shepherd direction is not.
- Conduct after an offence, including lies told to police and inconsistent statements made to family members, can constitute meaningful circumstantial evidence capable of supporting inferences of complicity.
Legislation and Cases Referenced
Cases:
- Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
- Davidson v R [2009] NSWCCA 150; (2009) 75 NSWLR 150; (2009) 195 A Crim R 406
- R v Murray (1987) 11 NSWLR 12; 30 A Crim R 315
Legislation: No specific legislation was cited in the decision.