AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 1 March 2022

R v Songcuan (No. 3)

[2022] NSWSC 188

HomicideDomestic & family violence

Citation: R v Songcuan (No. 3) [2022] NSWSC 188
Court: Supreme Court of NSW
Date: 1 March 2022
Judge: Dhanji J

Background

The accused, a 73-year-old man, was charged with murdering his wife by strangling her in the garage of their home on 2 May 2020. The couple had been married since 1976 and had a long and deteriorating relationship marked by frequent arguments, mutual accusations about an alleged affair, and physical altercations over at least four years.

The accused told police that on the morning of the killing, the deceased entered his bedroom arguing about an affair, threw objects at him, and struck him with a remote control. He ran to the garage, she followed and continued the argument, and he strangled her for 15 to 20 minutes until she stopped breathing. He then attempted to stage the scene to look like suicide.

The defence filed a notice of intention to rely on the partial defence of extreme provocation under section 23 of the Crimes Act 1900 (NSW). The defence applied for an advance ruling on whether sufficient evidence existed to have that partial defence left to the jury. The Crown did not oppose an advance ruling but argued the defence was not available on the evidence.

Legal Issues

  • Whether the court had jurisdiction to make an advance ruling on the availability of the partial defence before a jury was empanelled.
  • Whether there was reasonable evidence that the accused's act causing death was in response to conduct of the deceased (first element).
  • Whether there was reasonable evidence that the deceased's conduct constituted a serious indictable offence, specifically intimidation under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (second element).
  • Whether there was reasonable evidence that the deceased's conduct caused the accused to lose self-control (third element).
  • Whether there was reasonable evidence that the deceased's conduct could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm (fourth element).

Decision

Jurisdiction to make an advance ruling

Dhanji J found that the court had jurisdiction to make the ruling before a jury was empanelled. Once the accused had been arraigned on the indictment, section 130 of the Criminal Procedure Act 1986 (NSW) invested the court with the power to make orders for the purposes of the trial in the absence of a jury. Section 192A of the Evidence Act 1995 (NSW) authorised a ruling on how a law would operate in relation to evidence proposed to be adduced (at [4]).

First element: Response to conduct of the deceased

The Crown conceded this element. There was clear evidence, including admissions in the record of interview, that the accused's acts causing death were in response to the deceased's conduct, including the alleged physical assault on the morning of her death (at [32]).

Second element: Conduct constituting a serious indictable offence

The Crown also conceded this element. His Honour was satisfied that the deceased's conduct, as described by the accused, could fall within the definition of "intimidation" in section 7 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), and that an inference was available that the deceased intended to cause the accused to fear physical or mental harm. Section 13 of that Act, punishable by up to five years' imprisonment and triable on indictment at the prosecutor's election, qualified as a "serious indictable offence" (at [34]-[35]).

Third element: Loss of self-control

This was the most contested element. The accused did not directly assert in his police interview that he had lost self-control, and some of his statements were equivocal or potentially indicative of deliberation rather than impulse (at [41]). His Honour identified countervailing considerations: the interview occurred just hours after the killing, the accused was elderly with no prior record of violence, and English was not his first language, making apparent inconsistencies less reliable indicators of calculated intent (at [42]).

His Honour closely analysed key passages from the record of interview. The accused used the analogy of a cornered dog reacting instinctively, suggested his "patience" was being tested before saying "my mind just..." before being cut off, and described his response as "just to stop her shouting" and characterised it as an "overreaction." Taken together, and against the backdrop of the accused's history of restraint and prior good character, His Honour was satisfied there was at least some evidence that the deceased's conduct caused the accused to lose self-control (at [44]-[50]).

Fourth element: Objective limb

His Honour acknowledged the difficulty of the ordinary person standard where the reaction is seriously criminal. The test requires only that an ordinary person "could" (not "would") have lost self-control to the extent of forming an intention to kill or inflict grievous bodily harm, connoting possibility rather than probability (at [51]). Guided by Green v The Queen (1997) 191 CLR 334, His Honour confirmed the objective limb does not require that the provocation was sufficient to have caused the ordinary person to act exactly as the accused did, only that it could have induced the requisite intention.

Taking the entirety of the deceased's conduct, including approximately four years of ongoing abuse and attacks with objects, His Honour was satisfied that a pattern of abuse of that nature could have led an ordinary person who had previously shown restraint to lose self-control to the extent of forming an intention to kill or inflict grievous bodily harm (at [58]).

Orders Made

  • The partial defence of extreme provocation is to be left to the jury at trial, subject to the evidence at trial being to the same effect as the evidence tendered on the application.

Key Takeaways

  • Section 192A of the Evidence Act 1995 (NSW), read with section 130 of the Criminal Procedure Act 1986 (NSW), empowers the Supreme Court to rule in advance on whether a partial defence should be left to the jury, once the accused has been arraigned (at [4]).

  • Sufficient evidence of loss of self-control does not require a direct assertion by the accused that he or she lost control. Equivocal statements in a record of interview may, when read in context and with regard to circumstances such as the accused's age, language background, and proximity in time to the event, support an inference of lost self-control (at [41]-[50]).

  • The objective limb of extreme provocation requires only a possibility, not a probability, that an ordinary person could have lost control to the extent of forming an intention to kill or inflict grievous bodily harm. The ordinary person in this context is not necessarily the same as a reasonable person (at [51]).

  • A sustained pattern of domestic abuse over several years, including physical attacks with objects and threats with a knife, can, when considered cumulatively rather than confined to the immediate incident, satisfy the objective limb of extreme provocation (at [56]-[58]).

  • Under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), intimidation with intent to cause fear of physical or mental harm qualifies as a "serious indictable offence" for the purposes of section 23 of the Crimes Act 1900 (NSW), because it carries a maximum of five years' imprisonment and is triable on indictment at the prosecutor's election (at [18]).

Legislation and Cases Referenced

Legislation
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)

Cases
- Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14
- Green v The Queen (1997) 191 CLR 334
- Heron v The Queen (2003) 140 A Crim R 317; [2003] HCA 17
- Johnson v The Queen (1976) 136 CLR 619; [1976] HCA 44
- Lake Macquarie City Council v Morris (2005) 63 NSWLR 263; [2005] NSWSC 387
- Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16
- R v Chhay (1994) 72 A Crim R 1
- R v Croft [1981] 1 NSWLR 126
- Rogers v R (2021) 104 NSWLR 305; [2021] NSWCCA 61
- Stingel v The Queen (1990) 171 CLR 312
- The Queen v R (1981) 28 SASR 321; (1981) 4 A Crim R 127
- Van Den Hoek v The Queen (1986) 161 CLR 158