A MAGISTRATE said yesterday that it was “with a heavy heart” that she committed Wangaratta man Stuart Smith to stand trial for manslaughter over a fatal shooting on a deer hunting trip in 2010.
The comment was made by Stella Stuthridge, who had presided over a three-day committal hearing during which the tragic circumstances of Nick Welch’s death were outlined to her in Wodonga Magistrates Court.
Mr Welch, 19, was mistaken for a deer and was shot by Smith with a high-powered rifle in thick bush near Tallangatta on July 25.
Twin brother Jake Welch, who attended university with Smith, told him to take the shot after being told it was a young stag.
“This has been nothing other than a tragedy for both families,” Ms Stuthridge said.
“It is with a heavy heart that I have made a decision to commit Mr Smith to trial.”
Smith, 23, bowed his head and was consoled by his father and girlfriend, who was crying, when the decision was announced.
Nick Welch’s older brother, Matt, was the only family member in court.
Ms Stuthridge said she was satisfied there was sufficient evidence for the matter to go before a jury.
She asked Smith whether he pleaded guilty or not guilty to the manslaughter charge and he replied: “Not guilty”.
The case has been listed for a directions hearing in the Supreme Court in Melbourne on March 2 with the prosecution seeking to have the trial held in Wodonga.
Barrister Shane Gardiner appeared for Smith and submitted the prosecution had failed to show his client breached a duty of care by criminal negligence.
Mr Gardiner said Smith told police when interviewed that he looked through binoculars and then the rifle scope before taking his shot.
It was submitted there was contributory negligence through the clothing worn by Mr Welch and his decision to split from the other two.
“He must have known a shot was potentially imminent,” Mr Gardiner said.
Prosecutor Jim Bessell said the live issue in the case was the degree of negligence.
“You cannot shoot and ask questions later,” Mr Bessell said.
“You must be certain what you are aiming at.”
He said Smith told police he had heard cracking sticks and asked Jake Welch whether he should shoot.
Mr Bessell said if Smith was confident of his target, why did he ask about shooting.
Police asked Smith whether he had identified his target and he said: “No”.
“I could see a fair bit of a figure behind the bush,” he said.
When asked by police what made him think it was a deer, he said: “The movement, the size, the colour, the shape”.
Mr Bessell said Smith had described his actions to police as “stupid and careless, I guess”.