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Supreme Court 20 September 2021

R v Price

[2021] NSWSC 1191

Assault & violenceHomicideFirearms & weapons
CRIME MURDER JUDGE ALONE TRIAL ONLY ISSUE IS SELF DEFENCE

Citation: R v Price [2021] NSWSC 1191
Court: Supreme Court of New South Wales
Date: 20 September 2021
Judge: Rothman J

Background

The accused was charged with the murder of the deceased, who died on 24 June 2019 from a shotgun wound to the chest at a residential address in Parkes, NSW. The shooting occurred during a confrontation that escalated after the deceased made threatening calls and came to the property armed with a pick handle, apparently in a state of aggression linked to methylamphetamine use.

The accused had brought a sawn-off shotgun to the scene with the purpose of deterring the deceased from carrying out threats of grievous bodily harm against the accused's mother. When the deceased ran towards the accused raising the pick handle, the accused discharged the firearm, killing the deceased almost instantly.

The trial proceeded as a judge-alone trial. The parties cooperated to a significant degree, tendering witness statements without requiring most witnesses to attend for cross-examination, which Rothman J acknowledged spared considerable trauma to those involved.

  • Whether the Crown proved, beyond reasonable doubt, that the accused did not hold a genuine subjective belief that his conduct was necessary to defend himself or his mother (the subjective element of self-defence under s 418 of the Crimes Act 1900 (NSW))
  • Whether the Crown proved, beyond reasonable doubt, that the accused's conduct was not a reasonable response in the circumstances as the accused perceived them (the objective element of self-defence)
  • Whether, if the objective element only were disproved, the accused should be convicted of the alternative charge of manslaughter under s 421
  • Whether the alternative partial defence of extreme provocation under s 23 of the Crimes Act was available, and whether the accused had lost self-control

Decision

Rothman J found the facts to be largely uncontroversial. The accused genuinely believed, at the time of the shooting, that the use of the firearm was necessary to defend himself and his mother from the deceased, who was advancing aggressively with a raised pick handle while affected by methylamphetamine. The Crown did not displace that subjective belief beyond reasonable doubt.

Turning to the objective element, the Court found that the Crown had also failed to prove beyond reasonable doubt that the accused's response was unreasonable in the circumstances as the accused perceived them. Because the Crown could not disprove either element of self-defence, the accused was acquitted of both murder and manslaughter.

Rothman J explained the legal framework clearly: where the Crown disproves the subjective element, guilt for murder may be established (assuming other elements are proved). Where only the objective element is disproved, the accused may be convicted of the lesser offence of manslaughter. Where neither element is disproved, as here, acquittal on both charges follows.

On the question of extreme provocation, the Court found it unnecessary to resolve the issue given the self-defence verdict. However, Rothman J noted in passing that the evidence did not establish that the accused had lost self-control, which is a required element of extreme provocation under s 23(2)(c), and that the Crown had proved the absence of that loss of control beyond reasonable doubt.

Orders Made

  • The accused was found not guilty of murder
  • The accused was found not guilty of the alternative charge of unlawful killing (manslaughter)
  • The accused was discharged on the offence
  • Exhibits were to be returned to the Crown
  • The proceedings were otherwise dismissed

Key Takeaways

  • Under s 418 of the Crimes Act 1900 (NSW), self-defence is not strictly a "defence": once it arises on the evidence, disproving its subjective and objective elements becomes part of the Crown's burden, to be discharged beyond reasonable doubt.
  • A finding that the accused genuinely believed the conduct was necessary to defend himself or another (the subjective element) does not automatically resolve the question of guilt for manslaughter; the Crown must separately disprove the objective element to obtain a manslaughter conviction where murder is not made out.
  • Where the Crown fails to disprove both the subjective and objective elements of self-defence, acquittal on both murder and manslaughter is required.
  • The Supreme Court confirmed that the deliberate introduction of a firearm to a confrontation does not, of itself, preclude a successful self-defence claim: all the circumstances as perceived by the accused at the critical moment remain relevant to the objective element.
  • Extreme provocation under s 23 requires proof that the accused lost self-control; where the Crown establishes beyond reasonable doubt that no such loss of control occurred, the partial defence is unavailable regardless of the nature of the provocation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 23 (extreme provocation), 418 (self-defence), 421 (self-defence and manslaughter)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A (non-publication of juvenile witnesses' identities)

Cases cited: No cases were cited in the judgment.