AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 10 August 2001

REGINA v TURK

[2001] NSWCCA 547

Homicide
CRIMINAL LAW MURDER APPEAL AGAINST CONVICTION WHERE NO EVIDENCE OF LOSS OF SELF CONTROL

Citation: Regina v Turk [2001] NSWCCA 547
Court: NSW Court of Criminal Appeal
Date: 10 August 2001
Judges: Spigelman CJ, Grove J, Einfeld AJ

Background

The appellant was convicted of murder by a jury in October 2000 following a trial before Bell J in Dubbo. The conviction related to the fatal stabbing of the deceased on 11 March 1999 in Nyngan. He was sentenced to 18 years imprisonment with a 14-year non-parole period.

The background involved a history of tension between the appellant and the deceased. Roughly a month before the killing, the deceased had assaulted the appellant in a humiliating incident. On the night of the killing, the deceased again assaulted the appellant at one house, threatened him with a knife, and was later followed by the appellant to another address, where the appellant stabbed him fatally.

Evidence at trial included statements the appellant made after the first incident that evening, in which he expressed clear intent to retaliate, including "I'm going to get Forester" and "I'll go and stab him." His defence at trial was that a third party, the late Mr Ryan, had committed the killing while the appellant was unconscious, a theory the trial judge described as "frankly incredible."

  • Whether the trial judge erred by declining to direct the jury on the partial defence of provocation (which would have left open a verdict of manslaughter rather than murder), even though neither party at trial sought such a direction
  • Whether the trial judge's summing-up was incomplete or defective because it did not sufficiently address a witness's account of a possible second voice heard after the fatal altercation

Decision

On the provocation issue, Einfeld AJ (with whom Spigelman CJ and Grove J agreed) held that the trial judge was correct not to leave provocation to the jury. Under section 23(2)(a) of the Crimes Act 1900, provocation requires that the act causing death resulted from a loss of self-control induced by the deceased's conduct. The trial judge had herself raised the possibility of directing on provocation but concluded there was no evidence of any such loss of self-control.

The Court reviewed the applicable authorities, including Mancini v DPP and Moffa v The Queen, which confirm that a judge is only required to leave a provocation direction where the evidence could reasonably support a finding that an ordinary person could have lost self-control to the extent of doing what the accused did. Here, the evidence pointed to premeditation and a deliberate act of retaliation rather than a spontaneous loss of control. The appellant's own post-incident statements, made before he went to the second address, were inconsistent with any loss of self-control. The Court found the trial judge's conclusion manifestly correct.

On the second ground, the Court considered whether the summing-up was defective for failing to address evidence from a witness, Mr Wardman, who had heard a voice near the scene that might not have been the appellant's. After examining the submissions, the Court found no substance in this ground.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A trial judge is not required to direct a jury on provocation unless there is evidence upon which the jury could reasonably find that the accused suffered a loss of self-control induced by the deceased's conduct, as required by section 23(2)(a) of the Crimes Act 1900.
  • The duty to leave a defence to the jury arises even without a request from either party, but that duty is conditional on the evidence actually supporting the relevant elements of the defence.
  • Where the evidence points to deliberate planning and expressed intent to retaliate rather than a spontaneous reaction, the threshold for a provocation direction will not be met.
  • Neither party at trial opposed the trial judge's decision not to direct on provocation; defence counsel later swore an affidavit acknowledging this was an error on his part, but the Court of Criminal Appeal found the original decision was correct in any event.
  • An incomplete reference to witness evidence in a summing-up will not constitute reversible error unless the omission is shown to have substance capable of affecting the verdict.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 23(2)(a)

Cases:
- Mancini v Director of Public Prosecutions [1942] AC 1
- Moffa v The Queen (1976-1977) 138 CLR 601
- R v Hall [2001] NSWCCA 202