R v Paton

Submissions 8Senior counsel for the accused submitted that, in short, the jury could accept the evidence of the aunt and conclude that the accused was indeed part of a joint criminal enterprise to "sort out" the deceased; that is, to confront him or assault him, perhaps severely. And he submitted that the jury could interpret the evidence of what Ms Cameron had said to the police as supporting the proposition that the accused and Peter Kearnes had agreed to frighten the deceased, perhaps with the firearm she gave evidence that she had seen on that evening. 9In short, he submitted that assaulting the deceased or frightening him with a firearm could constitute an unlawful and dangerous act and that act could have caused the death of the deceased, in the sense of having substantially contributed to his death (see generally Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 and R v Moffatt [2000] NSWCCA 174). He submitted that the jury could find that the accused was complicit in such an unlawful and dangerous act causing death and that, therefore, manslaughter should be left to the jury because it is viable on the evidence. 10The Crown Prosecutor submitted that Ms Cameron was speaking of what she believed or assumed, not recounting directly or indirectly what the two men had said. Accordingly, it is no evidence of any agreement between the accused and Peter Kearnes, he submitted, to frighten the deceased with a firearm or anything else. 11As for the alleged admission to the aunt of the accused, the Crown Prosecutor emphasised that the act causing death was, in fact, the firing of four bullets into the head and neck of the deceased at close range. A "sorting out", if it be some kind of confrontation or physical assault had, he submitted, nothing to do with the death of the deceased. In other words, he submitted that the act causing death was not a physical assault or anything like it. Accordingly, he submitted that even if the accused said those words to his aunt, and even if they encompassed something that could perhaps have been unlawful and dangerous, that act had nothing to do with causing the death of the deceased. 12The Crown Prosecutor also emphasised that there were no injuries to the body of the deceased other than the four bullet wounds to which I have referred. 13Finally, he emphasised that there was no evidence from any source of a confrontation or assault gone wrong or taken too far by Peter Kearnes.

Determination 14I respectfully agree with the characterisation by the Crown Prosecutor of the evidence of Ms Cameron. To my mind, she was speaking to the police of her belief, and not of anything she had heard Peter Kearnes or the accused say or agree in. Accordingly, her evidence is not evidence of complicity on the part of the accused in frightening the deceased. On that basis, I put her evidence to one side with regard to this application. 15As for what was allegedly said to the aunt of the accused, I interpret "sorting out" someone as, indeed, meaning some form of confrontation or assault. It was, after all, allegedly said to the aunt in the context of the accused telling her that Peter Kearnes was upset about the deceased having mistreated one of the children of Mr Kearnes. It is also noteworthy that that alleged statement was part of a conversation in which it is alleged that the accused was generally exculpatory with regard to any involvement on his part in the murder. 16Let it be assumed that the jury, contrary not only to my understanding at this stage of the case for the accused but also contrary to the Crown case, accepted that the accused entered into an agreement with Peter Kearnes merely to "sort out" the deceased in the sense of a confrontation or assault. Even then, it could not be said that either of such events could be remotely connected to the death of the deceased. By that I mean, it was not a confrontation that caused the death of the deceased and it was not a physical beating; rather, it was being shot repeatedly. 17I also consider it significant that there is no evidence from any source of a confrontation or a beating leading to or somehow developing into the discharge of the firearm. To the extent that there was no sign of forced entry to the flat of the deceased, that the deceased had no other injuries, and that no witness has given evidence of hearing raised voices before the shooting, if anything the evidence is to the contrary. 18It follows that I do not consider that it is viable to say, even interpreting the evidence of the aunt in the way for which senior counsel for the accused contends, that the accused was complicit in an unlawful and dangerous act that caused the death of the deceased, even if one interprets the concept of criminal causation very broadly. 19Accordingly, although it may be possible to construct a hypothesis supportive of the application, I respectfully consider that such a hypothesis is highly speculative, contrary to the evidence, contrary to my understanding of the cases of the two parties, and would only serve to confuse the jury thoroughly. For those reasons, I do not regard manslaughter as viable in this trial, and I do not propose to leave it to the jury.

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