Citation: R v Shiels [2011] NSWSC 1693
Court: Supreme Court of New South Wales
Date: 29 August 2011
Judge: Barr AJ
Background
The accused was charged with the murder of his father at a birthday party held in Lurnea on 20 April 2010. The two had an intermittent but troubled relationship, with occasional physical confrontations that arose when the deceased had been drinking heavily. The accused also had a documented history of psychotic illness and had stopped taking his prescribed anti-psychotic medication in the months before the events in question.
During the night of the party, after a prolonged period of drinking by several family members, the accused took a knife and stabbed the deceased in the head. The deceased died a few hours later. The accused pleaded not guilty to murder but guilty to manslaughter at the outset of the trial.
The Crown declined to accept the manslaughter plea. The trial proceeded before a judge alone, with the central question being whether the accused was guilty of murder or only of manslaughter.
Legal Issues
- Whether the accused was guilty of murder or whether the partial defence of provocation reduced that liability to manslaughter
- Specifically, whether the conduct of the deceased immediately before and during the confrontation caused the accused to lose self-control sufficiently to satisfy the first limb of the provocation defence
- Whether the deceased's conduct could have induced an ordinary person in the accused's position to lose self-control to the point of forming an intent to kill or inflict grievous bodily harm (the second, objective limb of provocation)
Decision
Issue 1: Loss of self-control (first limb of provocation)
The court was satisfied that the accused did, in fact, lose self-control as a result of the deceased's conduct. That conduct included an initial physical assault (pushing the accused back onto a lounge chair), repeated invitations to fight, threats to hospitalise or kill the accused, threats to abandon him without accommodation, and grossly insulting words directed at him. The court accepted that these acts and words caused the accused's loss of self-control.
Issue 2: The ordinary person test (second, objective limb of provocation)
The partial defence failed on its second limb. The court was satisfied beyond reasonable doubt that an ordinary, sober person of the same age and level of maturity as the accused, with the minimum powers of self-control expected of an ordinary citizen, could not have been induced by the deceased's conduct to form an intent to kill or inflict grievous bodily harm. The court reasoned that several other ways of dealing with the situation were available and that there was ample time to resort to them. An ordinary sober person in the accused's position would have shrunk from inflicting grievous bodily harm.
Because the provocation defence failed on the objective limb, the accused's liability was not reduced from murder to manslaughter.
Orders Made
- Accused found guilty of murder
Key Takeaways
- Provocation as a partial defence to murder requires satisfaction of both a subjective limb (actual loss of self-control) and an objective limb (that an ordinary person in the accused's position could have been induced to lose self-control to the same degree).
- Finding the first limb satisfied does not guarantee the defence succeeds: a court may accept that an accused genuinely lost self-control while still rejecting the defence because the objective standard is not met.
- The "ordinary person" against whom the objective test is measured is taken to be sober and to possess only the minimum powers of self-control expected of an ordinary citizen, adjusted for the accused's age and maturity, but not for intoxication or mental illness.
- Where multiple alternative responses to a provocation were realistically available and there was sufficient time to pursue them, this can weigh against satisfaction of the objective limb.
- A guilty plea to manslaughter does not bind the Crown: the Crown retains the discretion to decline such a plea and proceed to trial on the murder charge, leaving the ultimate characterisation of the offence to the fact-finder.
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated