Citation: R v Cliff (No 5) [2018] NSWSC 166
Court: Supreme Court of New South Wales
Date: 21 February 2018
Judge(s): Campbell J
Background
The accused was charged with the murder of the deceased following a fatal stabbing. He entered a plea of not guilty to murder but guilty to manslaughter, placing the intent required for murder squarely in contest. The trial concluded its evidence phase and was about to proceed to addresses by counsel.
Before that occurred, three discrete questions of law required resolution. The prosecution sought to rely on the accused's post-offending lies and conduct as evidence of guilt. The defence sought to have two defences left to the jury: the partial defence of extreme provocation and the full defence of self-defence.
Campbell J delivered an ex tempore ruling on all three questions in one judgment.
Legal Issues
- Whether evidence of post-offending lies and conduct (including flight) could be left to the jury as evidence of guilt, given that both murder and manslaughter were in play
- Whether the partial defence of extreme provocation should be left to the jury for consideration
- Whether the defence of self-defence (including excessive self-defence) should be left to the jury for consideration
Decision
Post-offending conduct as consciousness of guilt
Campbell J held that the post-offending conduct evidence was properly available to the jury. His Honour acknowledged earlier New South Wales Court of Criminal Appeal decisions suggesting such evidence may be "intractably neutral" between murder and manslaughter, but found that the unanimous High Court decision in The Queen v Baden-Clay (2016) had superseded that approach. Under Baden-Clay, there is no hard and fast rule that post-offence concealment or lies is always neutral as between murder and manslaughter. Where the conduct is sufficiently disproportionate to the culpability involved in the lesser offence, a jury may find it more consistent with the intent required for murder.
His Honour noted that the accused had not been aware that the deceased had died at the time of the post-offending conduct. He addressed this by reference to R v Fowler, which confirmed that a lie need only reveal a knowledge of the offence "or some aspect of it." Because the central issue was the accused's state of mind at the moment of the fatal stabbing, evidence of subsequent lies and flight was capable of bearing on that intent even without awareness of death. A standard direction of the Edwards type, reminding the jury that the conduct may have an innocent explanation, would accompany the evidence.
Extreme provocation
Campbell J ruled that extreme provocation should be left to the jury. The applicable test, drawn from Bullard v The Queen and affirmed in Australian courts including the High Court in James v The Queen, is whether there is any evidence upon which a verdict of manslaughter could be returned. His Honour was satisfied that threshold was met on the evidence presented, and the partial defence was accordingly left for the jury's consideration.
Self-defence
The self-defence direction was refused. Campbell J found there was simply no evidence that the accused genuinely believed stabbing the deceased was necessary to defend himself. In his own evidence, the accused had only raised self-defence briefly and then disavowed it when pressed, attributing his conduct to a loss of self-control. He had also described his conduct as "retaliation." His Honour noted the legal distinction between acting in self-defence and retaliating, and further observed that the nature and extent of the injuries (including multiple stab wounds and significant blunt force injuries) made it not reasonably open to argue that any response was reasonable. Neither the full defence nor excessive self-defence was left to the jury.
Orders Made
• The Crown may rely upon the evidence of post-offending conduct as evidence of guilt
• The partial defence of extreme provocation will be left for the consideration of the jury
• Self-defence (excessive or otherwise) will not be left to the jury
Key Takeaways
-
Following The Queen v Baden-Clay (2016) 258 CLR 308, post-offence concealment and lies are not automatically neutral as between murder and manslaughter. Where such conduct is disproportionate to the culpability involved in manslaughter, a jury may treat it as evidence of murderous intent.
-
The Victorian Court of Appeal in R v Ciantar (2006), expressly endorsed by the High Court in Baden-Clay, confirmed that post-offence conduct, when combined with other evidence, can satisfy a jury beyond reasonable doubt that the accused killed with the intent required for murder.
-
An accused's unawareness that the victim had died does not automatically preclude post-offending conduct from being used as evidence of intent, provided that conduct reveals knowledge of some aspect of the offence.
-
A partial defence of extreme provocation must be left to the jury if there is any evidence upon which a verdict of manslaughter could be returned. That is a low threshold, derived from Bullard v The Queen and confirmed in James v The Queen.
-
No viable case of self-defence existed where the accused's own evidence attributed his conduct to loss of self-control and retaliation rather than a genuine belief that the use of force was necessary for defence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 23 (extreme provocation)
Cases
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- James v The Queen [2014] HCA 6; (2014) 253 CLR 475
- Bullard v The Queen [1957] AC 635
- R v Ciantar (2006) 16 VR 26; [2006] VSCA 263
- R v Heyes (2006) 12 VR 401; [2006] VSCA 86
- R v Sievers [2004] NSWCCA 463; 151 A Crim R 426
- Steer v R [2008] NSWCCA 295; 191 A Crim R 435
- R v Fowler [2003] NSWCCA 321
- Blackwell v R [2011] NSWCCA 93; 208 A Crim R 392
- Penza v R [2013] NSWCCA 21
- Masciantonio v The Queen (1995) 183 CLR 58
- Gammage v The Queen (1969) 122 CLR 444; [1969] HCA 68
- R v Hill [1986] 1 SCR 313