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Supreme Court 26 May 2015

R v Cullen

[2015] NSWSC 636

Homicide
CRIMINAL LAW MURDER PLEA OF GUILTY TO MANSLAUGHTER DEFENCE AND PROVOCATION APPLICATION REFUSED

Citation: R v Cullen [2015] NSWSC 636
Court: Supreme Court of New South Wales
Date: 26 May 2015
Judge: Harrison J

Background

The accused stood trial for the murder of his wife at Taren Point on 22 January 2014. He pleaded not guilty to murder but guilty to manslaughter, with the Crown declining to accept the manslaughter plea in discharge of the single count on the indictment. The accused's manslaughter plea rested on the proposition that he had either acted in self-defence but used an unreasonable degree of force, or had acted under provocation.

At the close of the Crown case, the accused applied for a directed verdict. He sought an order that the murder charge not be left to the jury and that the jury instead be directed to return a verdict of not guilty of murder but guilty of manslaughter.

  • Whether the Crown case contained evidence upon which a jury could properly be satisfied beyond reasonable doubt that the accused did not act in self-defence when he killed the deceased.
  • Whether the Crown case contained evidence upon which a jury could properly be satisfied beyond reasonable doubt that the accused was not acting under provocation.
  • Whether the directed verdict application should be granted at the close of the Crown case.

Decision

Self-defence: Harrison J refused the application on the self-defence ground for two related reasons. First, the jury was not bound to accept the accused's police interview statement that the deceased had inflicted at least one of his wounds. The jury could properly conclude from the whole of the evidence that all of the accused's injuries were self-inflicted and that the deceased offered no threat requiring a defensive response. The court noted that the deceased's left hand and arm bore what an expert described as "defensive wounds," and that the jury could find it was she, not the accused, who had needed to act in self-defence.

Second, even if the jury accepted that the deceased did wound the accused, the ferocity of the attack upon the deceased left it open for the jury to conclude that the accused was the aggressor throughout. The Crown case as a whole was capable of supporting a conclusion that none of the accused's conduct was referable to self-defence at any point.

Provocation: Harrison J identified two difficulties with the provocation argument. The jury was not required to accept the accused's account that the deceased had taunted him about her sex life following a court attendance, even in the absence of contradictory evidence. More fundamentally, even if the jury accepted that account and found the accused had lost self-control, it was still required to apply the objective limb of the provocation test: whether the deceased's words or conduct could have induced an ordinary person in the accused's position to have so far lost self-control as to form an intent to kill or inflict grievous bodily harm. The nature and severity of the deceased's injuries provided ample evidence upon which a jury could be satisfied beyond reasonable doubt that the objective limb was not met.

The application was refused and the matter was left to the jury.

Orders Made

• The application should be refused.

Key Takeaways

  • A directed verdict of manslaughter at the close of the Crown case requires that there be no evidence upon which a jury could properly conclude beyond reasonable doubt that the partial defences of self-defence and provocation have been negatived; it is not enough that some evidence supports those defences.
  • Where an accused's own police interview concedes that his injuries may have been self-inflicted, the jury is not bound to accept any alternative version he advances, and the Crown need not lead affirmative contradictory evidence to leave the issue open.
  • The provocation defence involves two distinct limbs: a subjective question of whether the accused actually lost self-control, and an objective question of whether an ordinary person in the accused's position could have lost self-control to the relevant degree. A finding favouring the accused on the first limb does not resolve the second.
  • The nature and extent of injuries inflicted on a deceased can itself form part of the evidence relevant to the objective limb of provocation, bearing on whether an ordinary person could have responded in the same way.
  • Refusing the directed verdict, the Supreme Court confirmed that where the totality of the Crown evidence is capable of supporting a conclusion adverse to both claimed partial defences, it is for the jury, not the judge, to determine the ultimate questions.

Legislation and Cases Referenced

No legislation or cases were cited in the provided text of the judgment.