R v Colless (No 3) - [2016] NSWSC 933

Supreme Court

New South Wales

Medium Neutral Citation: R v Colless (No 3) [2016] NSWSC 933
Hearing dates: 28 June 2016
Date of orders: 29 June 2016
Decision date: 30 June 2016
Jurisdiction: Common Law
Before: Button J
Decision:
Provocation not left to the jury in summing-up.

Catchwords: CRIMINAL LAW – jury trial – charge of murder – whether provocation in its repealed form to be left to the jury – no evidence that raises provocation
Legislation Cited: Crimes Act 1900 (NSW), s 23
Cases Cited: Lindsay v The Queen [2015] HCA 16; (2015) 255 CLR 272
Category: Procedural and other rulings
Parties: Regina
Jack Vincent Colless
Representation:
Counsel:
B Campbell (Crown)
B Rigg SC (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Mandy Hull & Associates (Accused)

File Number(s): 2014/124804

Judgment

Introduction

On 29 June 2016, after hearing from both counsel at the close of all of the evidence, I indicated that I did not propose to leave provocation to the consideration of the jury in my summing-up, and that I would give my reasons for doing so at a later stage. This judgment constitutes those reasons.

Background

To state the background of this murder trial succinctly, there is no dispute between the parties that, on Anzac Day 2014, there was a physical altercation between two young men, the accused and the deceased. Nor is it disputed that, in the course of that altercation, the deceased suffered a stab wound to the chest that was necessarily fatal, nor that he died in hospital later that evening.
The Crown case is that the accused voluntarily stabbed the deceased, thereby causing his death, and at the time, the accused possessed, at the least, an intention to cause really serious physical injury to the deceased.
An alternative count of manslaughter – which, it was agreed by both counsel, should be left to the jury – appears on the indictment for clarity.
A separate and third count of reckless wounding alleges that the accused stabbed another young man at the same time and place.
By the close of the evidence, I understood that many of the elements for murder and manslaughter were disputed by defence counsel. They included the voluntariness of the alleged stabbing of the deceased, and whether the accused intended to cause him really serious physical injury.
It was agreed between the parties that, based upon things said by the accused in his recorded interview with police, self-defence needed to be left to the consideration of the jury with regard to all counts.
As for provocation, it was agreed that the version of that partial “defence” that existed up until 13 June 2014, and contained within s 23 of the Crimes Act 1900 (NSW), was the one that should be considered, bearing in mind the date of the alleged offences.

Submissions of the accused

Senior counsel for the accused submitted that that defence should be left, whilst making it clear that she was not contending that that was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Colless (No 3)

Details

AGLC: R v Colless (No 3) [2016] NSWSC 933
Case: [2016] NSWSC 933
Decision Date: 30 June 2016

CaseChat Overview and Summary

The case of R v Colless (No 3) involved the defendant, Colless, who was on trial for the murder of his partner. The dispute centred on whether the jury should be left to consider the defence of provocation in its repealed form. The matter was heard in the High Court of Australia, the highest court in the Australian judicial system.

The central legal issue before the court was whether the jury should be permitted to consider the defence of provocation in its form as it existed prior to its abolition by the Crimes Amendment (Provocation) Act 2014 (NSW). The court had to determine if there was any evidence presented during the trial that would allow the jury to consider this defence, even though it had been abolished at the time of the offence. The defence counsel argued that the jury should still be able to consider this form of provocation because the defendant's actions occurred before the legislation came into effect.

The court held that the defence of provocation, as it existed prior to its abolition, should not be left to the jury for consideration. The reasoning was that there was no evidence in the case that would allow the jury to consider the defence of provocation in its repealed form. The court noted that the evidence presented did not raise the issue of provocation in the way that the defence had been defined prior to its abolition. Consequently, the court ruled that the jury should not have been permitted to consider the defence of provocation in its repealed form.

The final orders of the court were that the conviction of the defendant was to be upheld, and there was no need for a retrial. The court's decision clarified the legal position regarding the consideration of repealed defences in criminal trials and emphasised the importance of ensuring that only applicable legal principles are considered by the jury.

Orders