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Supreme Court 4 July 2019

R v McDonald

[2019] NSWSC 839

Homicide
CRIMINAL LAW MURDER S 23 CRIMES ACT 1900

Citation: R v McDonald [2019] NSWSC 839
Court: Supreme Court of New South Wales
Date: 4 July 2019
Judge: Harrison J

Background

The accused, a man of Aboriginal descent aged nearly 59, stood trial for the murder of his younger brother at Taree on 21 January 2017. The two men had been living in adjoining apartments and shared a history of animosity dating back roughly a year. The accused told police that his brother and the brother's partner had been constantly noisy, regularly abusive, and persistently disrespectful toward him.

On the night in question, the accused became distressed by the noise from the adjacent apartment, including the slamming of a bathroom sliding door. He retrieved a bone-handled carving knife from his kitchen, entered his brother's apartment, and stabbed him once in the left side of the chest. The brother died almost immediately from blood loss.

When arraigned before the jury, the accused pleaded guilty to manslaughter. The Crown declined to accept that plea in satisfaction of the murder charge. After the Crown closed its case, the accused applied to have the partial defence of extreme provocation left to the jury. The Crown opposed the application.

  • Whether there was sufficient evidence to warrant leaving the partial defence of extreme provocation to the jury under s 23 of the Crimes Act 1900 (NSW)
  • Whether the conduct of the deceased constituted a "serious indictable offence," specifically stalking or intimidation under s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)
  • Whether the deceased's conduct caused the accused to lose self-control
  • Whether that conduct could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm

Decision

Section 23 of the Crimes Act 1900 sets out a structured test for extreme provocation. Before the defence can go to the jury, the trial judge must determine whether there is at least some evidence capable of providing an affirmative answer to each element of the test. Harrison J framed his task as a preliminary, threshold inquiry rather than a final determination of any factual question.

The critical contested element was whether the deceased's conduct amounted to a serious indictable offence. The accused pointed to persistent abuse, intimidation, and harassing behaviour over the weeks leading up to the stabbing, arguing this conduct fell within the stalking and intimidation offence under s 13 of the Crimes (Domestic and Personal Violence) Act 2007. That offence carries a maximum penalty of five years' imprisonment, qualifying it as a serious indictable offence for the purposes of s 23.

Harrison J concluded that the evidence was capable of satisfying each of the four elements of the extreme provocation test. The judge was careful to note that this conclusion was not determinative of any factual matter: it meant only that the defence had a proper evidential foundation and should be placed before the jury for its consideration.

Applying the principle from Lindsay v The Queen and Masciantonio v The Queen that a trial judge should ask whether a reasonably acting jury might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense, Harrison J ruled in favour of leaving the defence to the jury.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The partial defence of extreme provocation under s 23 of the Crimes Act 1900 requires a trial judge to conduct a threshold assessment of whether the evidence is capable of satisfying each statutory element before the issue is left to the jury.
  • Conduct amounting to persistent abuse, harassment, or intimidation by the deceased may qualify as a "serious indictable offence" under s 13 of the Crimes (Domestic and Personal Violence) Act 2007, satisfying a critical element of the extreme provocation test.
  • Under s 23(4), the deceased's provocative conduct does not need to have occurred immediately before the fatal act; a pattern of behaviour over preceding weeks may be taken into account.
  • The standard applied at the threshold stage is whether a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked. This is a lower bar than proof of the defence itself, and the analysis is explicitly preliminary rather than determinative.
  • A guilty plea to manslaughter does not prevent a murder accused from seeking to have the partial defence of extreme provocation left to the jury where the Crown declines to accept the lesser plea.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 23 (partial defence of extreme provocation)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 7 (definition of intimidation) and 13 (stalking or intimidation with intent to cause fear)

Cases
- Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16
- Masciantonio v The Queen (1995) 183 CLR 58; [1995] HCA 67
- R v Turnbull (No 5) [2016] NSWSC 439
- Veness v Hodge [2015] NSWCA 20
- Viavattene v R [2018] NSWCCA 197