AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 22 May 2019

R v Rogers (No 7)

[2019] NSWSC 689

Homicide
CRIMINAL LAW MURDER TRIAL CLOSING ADDRESSES CONSIDERATION OF FIFTH ELEMENT

Citation: R v Rogers (No 7) [2019] NSWSC 689
Court: Supreme Court of New South Wales
Date: 22 May 2019
Judge: Lonergan J

Background

The accused stood trial for murder, having pleaded not guilty to murder but guilty to manslaughter on the first day of proceedings. The central issue for the jury was whether the partial defence of substantial impairment had been established on the balance of probabilities, which would reduce the accused's liability from murder to manslaughter.

The Crown's case was that the accused killed the deceased not because of any substantial impairment of his capacity to control himself, but out of anger and jealousy, as an expression of his desire to dominate and control her. The defence case relied on expert psychiatric evidence to establish that an abnormality of mind arising from an underlying condition substantially impaired the accused's capacity to control himself at the relevant time.

Following closing addresses, the Crown raised a concern about submissions made by defence counsel regarding the fifth element of the substantial impairment direction. That dispute prompted this ruling.

  • Whether the fifth element of the substantial impairment direction, requiring the jury to assess whether the impairment was "so substantial as to warrant liability for murder being reduced to manslaughter," is confined solely to the degree of the accused's impairment.
  • Whether the circumstances of the killing itself, including its nature, duration, and degree of planning, are relevant to the jury's evaluation under that fifth element.
  • Whether any correction to the defence closing address was required.

Decision

The Crown submitted that the fifth element focused exclusively on the level of the accused's impairment, and that the circumstances of the killing were irrelevant unless they bore directly on his capacity to control himself. Lonergan J rejected that submission.

Her Honour held that the fifth element requires an evaluative, value-based judgment by the jury as members of the community, applying community standards. That judgment is not confined to assessing the degree of impairment in isolation. The circumstances of the offending are also capable of informing the jury's evaluation of whether any substantial impairment was serious enough to warrant reducing murder to manslaughter.

In reaching that conclusion, her Honour accepted that several matters raised by defence counsel in closing were open on the evidence and relevant to the jury's assessment under element five. These included whether the fatal acts were relatively quick, spontaneous, and unplanned, and whether there was no evidence of deliberate preparation such as leaving the premises to obtain a weapon. Lonergan J noted that if planning or weapon-seeking had been established, that would itself be relevant to whether the accused retained sufficient self-control to undermine the partial defence.

Her Honour found no correction to the defence address was necessary, but indicated the relevant direction on element five would be given again as part of the summing up.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The fifth element of the partial defence of substantial impairment requires a broad, evaluative judgment by the jury, reflecting community values, not merely a clinical assessment of the degree of impairment.
  • A submission confined to the level of impairment alone does not capture the full scope of the fifth element: the circumstances of the killing, including its spontaneity, duration, and degree of planning, are capable of being relevant to the jury's evaluation.
  • Where evidence suggests an act was spontaneous and unplanned, this is open to be characterised as less blameworthy than a calculated or prolonged attack, and that distinction bears on the community standard assessment required by element five.
  • Conversely, evidence of planning or deliberate preparation (such as seeking out a weapon) could cut against the partial defence by suggesting the accused retained a meaningful degree of self-control.
  • No correction of a closing address is required where the submissions made are properly open on the evidence and directed to matters the jury is legitimately entitled to consider.

Legislation and Cases Referenced

Cases:
- R v Ignjatic (1993) 68 A Crim R 333
- Quinn v R [2018] NSWCCA 297

Legislation: No specific legislation was cited in the judgment text, though the partial defence of substantial impairment is governed by the Crimes Act 1900 (NSW), s 23A.