Citation: R v Colless (No 3) [2016] NSWSC 933
Court: Supreme Court of New South Wales
Date: 30 June 2016
Judge(s): Button J
Background
The accused stood trial for the murder of a young man following a physical altercation on Anzac Day 2014. It was undisputed that a stabbing occurred during the altercation and that the deceased died in hospital that evening from a stab wound to the chest. The Crown alleged the accused stabbed the deceased voluntarily and with at least an intention to cause really serious physical injury.
The defence disputed several elements, including the voluntariness of the stabbing and the requisite intention. Both parties agreed that self-defence should be left to the jury across all counts, and that an alternative count of manslaughter should also be left.
A separate question arose at the close of evidence: whether the partial defence of provocation, in the form it took under s 23 of the Crimes Act 1900 (NSW) prior to its repeal on 13 June 2014, should be included in the trial judge's summing-up to the jury.
Legal Issues
- Whether there was sufficient evidence to require the trial judge to leave the partial defence of provocation (in its pre-repeal form under s 23 of the Crimes Act 1900) to the jury.
- What threshold must be met before a partial defence is left for the jury's consideration.
Decision
Button J confirmed that the applicable threshold test, drawn from the High Court's decision in Lindsay v The Queen (2015) 255 CLR 272, asks whether there is material in the evidence that sufficiently raises the issue to justify leaving the partial defence to the jury. The threshold is a question of law for the trial judge.
His Honour identified loss of self-control as the essential starting point for provocation in its prior form. On the evidence, there was no direct or inferential basis for concluding that the accused had lost self-control at the relevant time. The accused made no mention of losing self-control in his police interview, in any statement to civilians after the incident, or in evidence at trial (he did not testify).
The accused's observed behaviour also pointed against a loss of self-control. Evidence showed he was exchanging insults in a rational manner shortly before the stabbing, and that after the altercation he calmly searched for cigarettes and interacted normally with his neighbour and girlfriend. Button J found these circumstances were inconsistent with a loss of self-control.
The accused's reference in his police interview to events being "a blur" did not, in Button J's evaluative judgment, constitute sufficient material to raise the issue. That remark was made in the context of the accused describing difficulty recalling events while he was being struck by two men, and fell well short of evidencing a loss of self-control. Accordingly, provocation was not left to the jury.
Orders Made
No orders were made in this decision.
Key Takeaways
- The Supreme Court applied the threshold test from Lindsay v The Queen (2015) 255 CLR 272: a partial defence is only left to the jury where there is material in the evidence that sufficiently raises the issue.
- Loss of self-control is a foundational requirement for the partial defence of provocation as it existed under s 23 of the Crimes Act 1900 (NSW) prior to 13 June 2014, and without evidence of it, the defence cannot be left to the jury.
- A passing reference to events being "a blur," made in a police interview in the context of recounting being struck by multiple assailants, was insufficient to constitute evidence of loss of self-control.
- Post-incident behaviour that is calm and controlled can be relevant to assessing whether loss of self-control occurred, and here it pointed against leaving provocation to the jury.
- The fact that defence counsel herself did not intend to rely on provocation, and acknowledged it was inconsistent with the primary defence of self-defence, did not eliminate the judge's obligation to consider whether the issue was sufficiently raised on the evidence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 23 (provocation, in its form prior to repeal on 13 June 2014)
Cases
- Lindsay v The Queen [2015] HCA 16; (2015) 255 CLR 272