Citation: R v Jacobs (No 7) [2013] NSWSC 948
Court: Supreme Court of New South Wales
Date: 11 July 2013
Judge(s): Button J
Background
The accused stood trial for murder arising from a fatal shooting. The deceased was shot at close range during an incident involving a .38 calibre revolver. The accused was himself shot within approximately two seconds of the deceased being shot, and was found to be in close proximity to a Glock pistol at that point.
The key factual dispute centred on whether the accused intentionally shot the deceased or whether the shooting may have been accidental or unintentional. Defence counsel pointed to evidence including the distance between the muzzle and the deceased at the time of the shot, the possibility that the deceased moved into the path of a bullet not aimed at him, and the accused's repeated utterances of "I'm sorry" at the scene.
This judgment resolved a discrete question arising mid-trial: whether manslaughter should be left to the jury as an alternative verdict to murder.
Legal Issues
- Whether the evidence was sufficient to make manslaughter a "viable" alternative verdict for the jury's consideration
- Whether the cautious approach adopted by the Court of Criminal Appeal to leaving alternative verdicts applied in these circumstances
- What weight to give to the respective positions of the Crown and defence on the question
Decision
Button J identified several factors that weighed against leaving manslaughter. The evidence strongly suggested the shooter was very close to the deceased at the time of the shot. There was no partial defence available that could reduce murder to manslaughter, and no complications from accessorial liability principles. His Honour also noted the possibility that two shots were fired from the revolver, adding further complexity to the defence's account.
Despite these factors, Button J applied the cautious approach to alternative verdicts that the NSW Court of Criminal Appeal has consistently endorsed. The relevant threshold is simply whether manslaughter is a "viable" proposition on the evidence, a test his Honour described as a low one.
His Honour drew on Carney v R; Cambey v R [2011] NSWCCA 223 as an illustration of that cautious approach. In that case, the Court of Criminal Appeal held it was an error not to leave manslaughter even where the Crown's case involved repeated blows to the head with a metal implement. The analogy to Pemble v The Queen, regarding defences not relied upon by an accused, was also noted as broadly relevant to the underlying principle.
Button J concluded that, while the proposition that this could be manslaughter "appears to be almost fanciful" at first blush, manslaughter was viable, albeit only just. Accordingly, he directed that manslaughter be left for the jury's consideration.
Orders Made
• Manslaughter will be left for the jury's consideration
Key Takeaways
- The threshold for leaving manslaughter as an alternative verdict is whether it is "viable" on the evidence, a deliberately low bar.
- Button J confirmed that NSW courts apply a cautious approach to withholding alternative verdicts from juries, consistent with the Court of Criminal Appeal's reasoning in Carney v R; Cambey v R [2011] NSWCCA 223.
- The position of the parties on whether an alternative verdict should be left is a relevant consideration, but it is not determinative of the question.
- A trial judge may leave an alternative verdict even where the supporting evidence is thin and the proposition appears, on first examination, to be almost fanciful.
- Where no partial defence is available and accessorial liability raises no complications, those factors weigh against leaving manslaughter, but they do not automatically foreclose the question.
Legislation and Cases Referenced
Cases:
- Carney v R; Cambey v R [2011] NSWCCA 223
- Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107
Legislation: No specific legislation cited in the judgment.