Citation: R v Keith Harold Allen [2013] NSWSC 614
Court: Supreme Court of New South Wales
Date: 22 May 2013
Judge: Adams J
Background
The accused, a 70-year-old man in poor health and receiving palliative care for lung cancer, was charged with the murder of his housemate's partner following a violent confrontation on a rural property in December 2010. The deceased had returned to the property intoxicated, with a blood alcohol reading of approximately 0.195 grams per 100 millilitres, and had seized the accused's partner, holding a knife to her throat and threatening to kill her.
The accused fired two shots. The first struck the deceased in the shoulder while the deceased was holding the knife to the woman's throat. The second, fatal shot struck the deceased in the head. The prosecution's case turned on the second shot: the Crown alleged it was fired after the deceased had dropped the knife and was no longer a threat. In the alternative, the Crown argued that even if the accused believed he needed to act in defence of his partner, that belief was objectively unreasonable, making him guilty of manslaughter.
Because of the accused's serious medical condition, a jury was dispensed with and the trial proceeded before Adams J alone. The accused was acquitted on 14 May 2013, with reasons delivered on 22 May 2013.
Legal Issues
- Whether the accused fired the second, fatal shot while the deceased still posed a threat to the partner, so as to justify the use of defensive force.
- Whether the accused's belief that defensive force was necessary was objectively reasonable in all the circumstances.
- Whether the degree of force used, including the fatal second shot, was reasonable given those circumstances.
Decision
Adams J examined the accounts of three eyewitnesses: the accused's partner, her then ten-year-old daughter, and the accused himself (through his two police interviews, as he did not give evidence at trial). His Honour found the partner's evidence honest and largely reliable as to the critical sequence of events from the moment the knife was placed at her throat, notwithstanding some inconsistencies attributable to distress and the passage of time.
The child's evidence was treated more cautiously. Adams J accepted that her accounts were generally reliable but was not satisfied that her description of the shooting and immediately surrounding circumstances could be relied upon as accurate. Her account did not displace the accused's version of events.
The autopsy findings were also considered carefully. His Honour rejected the prosecution's submission that the bullet trajectory evidence demonstrated the deceased had dropped the knife and stepped away before the second shot was fired. The situation was not static: the accused had himself moved after the first shot, and the range of possible bullet angles meant no safe conclusion could be drawn about the deceased's precise position or whether he was still holding the partner at the moment the second shot was fired.
Adams J concluded that there was at minimum a reasonable possibility the accused acted in defence of his partner and that the force used was reasonable. The judge went further, positively finding that the accused had acted throughout to prevent serious injury or death to his partner, and that his response was reasonable in all the circumstances. A drunk, larger, and enraged man had been holding a knife to a woman's throat with stated intent to kill her. The accused, older and physically smaller, had no opportunity for careful reflection and was justified in treating the threat as genuine and immediate.
Orders Made
• Mr Allen acquitted - verdict of not guilty
Key Takeaways
- Adams J acquitted the accused of both murder and the alternative of manslaughter, finding the defence of another was established on the facts.
- A positive finding of reasonable defensive force was made, not merely a finding that the Crown had failed to disprove it beyond reasonable doubt, though the legal standard required only the latter.
- Where eyewitness accounts were affected by extreme distress and the circumstances were fast-moving and terrifying, the court applied appropriate caution before treating inconsistencies as undermining the reliability of a witness's account on the central facts.
- Autopsy and trajectory evidence was insufficient to establish the deceased's precise position at the moment of the fatal shot in a rapidly evolving confrontation, and the prosecution could not rely on that evidence to disprove the defensive force account.
- The trial was conducted by judge alone, at the defence's application, due to the accused's terminal illness, illustrating the court's capacity to accommodate exceptional personal circumstances in the conduct of a criminal trial.
Legislation and Cases Referenced
No legislation or cases were cited in the judgment text or metadata provided.