Citation: R v Bentley; R v Davies; R v Thomas; R v Tilley [2019] NSWSC 283
Court: Supreme Court of New South Wales
Date: 19 March 2019
Judge(s): Harrison J
Background
Four accused faced trial for the murder of the deceased. The Crown alleged all four were liable under a joint criminal enterprise, even though only one accused, Mr Bentley, physically inflicted the fatal injuries at the deceased's home.
Before the killing, the two groups had travelled in separate vehicles through suburban streets. During that journey, occupants of the deceased's vehicle threw items such as tyre levers and car jack equipment at the following car. The two vehicles also collided at a roundabout, causing damage to both.
At the close of the evidence, counsel for one accused applied for a jury direction on extreme provocation, and all defence counsel ultimately joined the application. The Crown opposed it. Harrison J ruled on the application before the matter proceeded to the jury.
Legal Issues
- Whether there was sufficient evidence that the act causing the deceased's death was done in response to extreme provocation under s 23(2) of the Crimes Act 1900 (NSW)
- Whether there was any evidence that the accused who inflicted the fatal injuries had lost self-control at the time of the killing
- Whether the throwing of objects from the deceased's vehicle could constitute a serious indictable offence under s 49A of the Crimes Act 1900 (NSW), so as to satisfy one element of the extreme provocation partial defence
Decision
Harrison J accepted, without deciding the point conclusively, that the throwing of objects from the deceased's vehicle could arguably constitute a serious indictable offence under s 49A of the Crimes Act (intentionally throwing objects at a vehicle where persons are present and safety is at risk). That element of the extreme provocation test was therefore not the obstacle to the direction being given.
The insurmountable problem was the requirement that the accused must have lost self-control. Harrison J applied the principle established in Mulvihill v R [2016] NSWCCA 259: before a jury can be directed on extreme provocation, there must be at least some evidence that the act causing death resulted from a loss of self-control on the accused's part.
Mr Bentley's own evidence was entirely inconsistent with any loss of self-control. He testified that he attended the premises to help facilitate a conversation, that he did not intend to harm the deceased, and that he paused momentarily at the entrance to the shed before entering. His evidence suggested a measured, purposeful state of mind, not one in which, as Wood J described in Peisley v R (1990) 54 A Crim R 42, "the blood is boiling" or reason has been temporarily suspended.
As for the other three accused, Harrison J noted that liability was based on joint criminal enterprise, but this did not transpose Mr Bentley's state of mind onto them. There was no evidence that any of the other accused had lost self-control either. Accordingly, the application was refused.
Orders Made
No formal orders were recorded in the provided text. The ruling was a refusal of the application for a jury direction on extreme provocation.
Key Takeaways
- Under s 23(2) of the Crimes Act 1900 (NSW), the partial defence of extreme provocation requires, among other elements, that the accused's conduct was caused by an actual loss of self-control: anger, resentment, or heightened emotion alone is insufficient.
- Where an accused's own evidence is inconsistent with experiencing a loss of self-control, that evidence operates against leaving the partial defence to the jury, applying Mulvihill v R and Peisley v R.
- The threshold for loss of self-control was described by reference to Peisley v R: there must be a state in which reason is temporarily suspended, whether through boiling blood, fear, or terror, not merely elevated anger or building resentment.
- In a joint criminal enterprise murder, the loss of self-control relevant to extreme provocation is assessed by reference to the person who physically inflicted the fatal act, not attributed across all alleged participants.
- Conduct arguably satisfying the "serious indictable offence" limb of s 23(2) (here, throwing objects at a moving vehicle under s 49A) will not alone ground a direction on extreme provocation if the loss-of-self-control element is unsupported by evidence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 23 (extreme provocation partial defence)
- Crimes Act 1900 (NSW), s 49A (throwing rocks and other objects at vehicles)
Cases
- Mulvihill v R [2016] NSWCCA 259
- Peisley v R (1990) 54 A Crim R 42