Citation: [2026] NSWSC 323
Court: Supreme Court of New South Wales
Date: 13 March 2026
Judge(s): Dhanji J
Background
Samantha Hooker stood trial for the murder of her former partner, Peter Hooker. The two had been in a relationship for approximately 18 years before separating. Despite the separation, they initially continued living under the same roof, and even after the deceased formally moved out in November 2022, he would on occasion stay at the family home.
On 26 June 2023, police were called following a violent episode between the parties. The deceased was charged with assaulting the accused and an apprehended violence order (AVO) was taken out prohibiting him from being at the home. Nevertheless, there was evidence that the deceased continued to attend the property on various occasions after this date, including staying overnight.
On 8 August 2023, the accused drove her vehicle at the deceased, striking him and causing significant injuries from which he ultimately died. It was not in dispute that the accused, by her voluntary act, caused the deceased's death with an intention to inflict at least grievous bodily harm. The central question that arose during trial was whether the accused was entitled to rely on the partial defence of extreme provocation under s 23 of the Crimes Act 1900 (NSW), which, if successful, would reduce a murder conviction to manslaughter.
The issue came to a head after the accused chose not to give evidence. The Crown had previously flagged that if the accused did not testify, it would contend the evidence was insufficient to leave the partial defence to the jury. Argument was heard during a break in proceedings on the Thursday of the second week of trial, with counsel due to address the jury the following Monday.
Legal Issues
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Whether there was sufficient evidence to leave the partial defence of extreme provocation (s 23 of the Crimes Act 1900 (NSW)) to the jury, given that the accused elected not to give evidence.
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Whether the evidentiary onus on the accused to raise each element of s 23(2) — particularly the requirement that the act causing death was "in response to" identified conduct of the deceased that constituted a serious indictable offence — could be satisfied solely from evidence led in the Crown case.
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What specific "conduct of the deceased" the act causing death was alleged to be in response to, and whether there was a dispute as to the relevant conduct that was properly a matter for the jury.
Decision
Dhanji J approached the question by reference to well-established High Court authority. The court noted that under s 23(7), the partial defence must be left to the jury if there is "any evidence" that the act causing death was in response to extreme provocation. Once that evidentiary threshold is met, the onus shifts to the prosecution to prove beyond reasonable doubt that the act was not in response to extreme provocation. Critically, the accused's evidentiary burden can be discharged entirely from evidence adduced in the Crown case — the accused does not need to give evidence herself.
The court identified that the requirements of s 23(2)(c) and (d) were not in dispute: the Crown accepted there was evidence capable of establishing that at least some conduct of the deceased caused the accused to lose self-control, and that such conduct could have caused an ordinary person to lose self-control to the extent of forming an intention to kill or inflict grievous bodily harm. The real battleground was s 23(2)(a) and (b) — whether the act causing death was "in response to" identified conduct of the deceased, and whether that conduct constituted a "serious indictable offence" (an offence punishable by five years' imprisonment or more, as defined in s 4 of the Crimes Act).
There was a dispute between the parties as to what conduct of the deceased the act causing death was said to be in response to. The evidence included the violent episode on 26 June 2023 (which had resulted in assault charges and an AVO), and the deceased's subsequent attendances at the home in apparent breach of the AVO. The Crown apparently argued that, without the accused's own account, the evidence was equivocal as to whether the act causing death on 8 August was truly "in response to" the identified provocative conduct. The defence submitted that the Crown case evidence — including the history of domestic violence, the AVO, and the deceased's continued presence — was sufficient to allow the jury to draw the necessary inferences.
Dhanji J, applying the approach endorsed in Rogers v R and the High Court decisions in Masciantonio, Stingel, and Lindsay, adopted the established position that trial judges should lean towards leaving the defence to the jury where there is a reasonable basis to do so. His Honour concluded that the question of what conduct the act causing death was in response to was properly a matter for the jury. That is, there was sufficient evidence, taking the version of events most favourable to the accused, that a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was not in response to extreme provocation. The partial defence was to be left to the jury.
Orders Made
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The partial defence of extreme provocation under s 23 of the Crimes Act 1900 (NSW) was to be left to the jury for their determination.
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The trial was to proceed to closing addresses as scheduled.
Key Takeaways
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Under s 23 of the Crimes Act, the evidentiary onus for extreme provocation can be satisfied entirely by evidence led in the Crown case. The Supreme Court confirmed that a decision by the accused not to testify does not, of itself, prevent the partial defence from being left to the jury.
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Consistent with High Court authority, trial judges are expected to "tilt the balance" in favour of leaving the partial defence with the jury where there is a reasonable evidentiary basis. The Court reaffirmed that the threshold is "any evidence," while also noting that appellate courts apply a somewhat more exacting standard when reviewing such rulings.
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Where the evidence is capable of supporting more than one view about the relevant provocative conduct, this is a factual question for the jury. Dhanji J held that competing interpretations of which conduct the act was "in response to" do not provide a basis for withdrawing the defence from the jury's consideration.
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Section 23(4), which provides that the deceased's conduct need not have occurred "immediately before" the act causing death, carries particular significance in domestic violence contexts. The Court recognised that this temporal flexibility is especially relevant where the alleged provocation involves a pattern of conduct, such as ongoing domestic violence and repeated breaches of protection orders.
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Establishing s 23(2)(b) requires that the deceased's conduct constitute an offence punishable by imprisonment for five years or more, and the specific offences relied upon must be identified with precision. In the domestic violence context, the Supreme Court identified offences under the Crimes Act (for example, assault occasioning actual bodily harm) and potentially breaches of AVOs as capable of satisfying this requirement.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 4, 23
- Criminal Procedure Act 1986 (NSW), ss 3, 260, sch 1, table 2, cl 2
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 7, 13
Cases:
- Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14
- Johnson v The Queen (1976) 136 CLR 619; [1976] HCA 44
- Lake Macquarie City Council v Morris (2005) 63 NSWLR 263; [2005] NSWSC 387
- R v Quartly (1986) 11 NSWLR 332
- Rogers v R (2021) 104 NSWLR 305; [2021] NSWCCA 61
- Masciantonio v The Queen (1995) 183 CLR 58 (cited within Rogers)
- Lindsay v The Queen (2015) 255 CLR 272 (cited within Rogers)
- Stingel v The Queen (1990) 171 CLR 312 (cited within Rogers)