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Catchwords:	CRIMINAL LAW – jury trial – charge of murder – whether provocation in its repealed form to be left to the jury – no evidence that raises provocation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

1. 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

2. 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.

3. 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.

4. An alternative count of manslaughter – which, it was agreed by both counsel, should be left to the jury – appears on the indictment for clarity.

5. A separate and third count of reckless wounding alleges that the accused stabbed another young man at the same time and place.

6. 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.

7. 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.

8. 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

9. Senior counsel for the accused submitted that that defence should be left, whilst making it clear that she was not contending that that was the case, in that provocation was inconsistent with the defence of self-defence, and in that sense positively disadvantageous to the accused. She also made it clear that she would not be addressing the jury in support of provocation. In other words, she was merely bringing the matter to my attention in order to avoid me falling into error by not leaving the defence to the jury.

10. She made the following submissions in support of the proposition that the partial defence should be left by me.

11. First, she submitted that the evidence that could potentially give rise to a defence of provocation included the reference by the accused in his interview to the events being a “blur”; an alleged campaign of harassment against the accused over many months by the deceased; the alleged verbal abuse of the accused at his premises on the night in question; and the physical confrontation itself.

12. Secondly, she submitted that evidence of the necessary mental state - loss of self-control - could only arise if the jury rejected the account of the accused as to his mental state, and his position that he simply produced a knife to protect himself. She submitted that, in those circumstances, the jury could consider that he committed an intentional act based on fear (raising the issue of excessive self-defence) or anger (raising the issue of provocation).

13. Thirdly, she submitted that the test of whether to leave a partial defence to the jury has a reasonably low threshold, and that the accused bears no onus with regard to the partial defence once raised. She submitted that the test had been made out in this case, and the partial defence should be left to the jury for abundant caution.

Submissions of the Crown

14. In response, the Crown Prosecutor simply submitted that an essential pre-condition of the partial defence of provocation, as it was at the relevant time, was a loss of self-control on the part of the accused. His submission was that there was no evidence in the trial whatsoever of the accused having lost self-control.

Determination

15. Turning to my determination, there was no dispute between the parties that the relevant test to be applied by me in determining whether to leave a “defence” was recently stated with clarity by the High Court in Lindsay v The Queen [2015] HCA 16; (2015) 255 CLR 272 at [16]. It is as follows:

The threshold question of law is whether there is material in the evidence which sufficiently raises the issue to leave the partial defence for the jury’s consideration.

16. To my mind, the “starting point” of the partial defence of provocation in its prior form is a loss of self-control on the part of the accused. And yet there is no direct evidence of that having occurred in the evidence. I say that for the following reasons.

17. First, the accused said nothing about a loss of self-control on his part, either to arresting police, interviewing detectives in his recorded interview, or to any civilians after the alleged offences.

18. Secondly, the accused did not give evidence in the trial before the jury.

19. Separately, there is no evidence of the observed conduct or behaviour of the accused from which one could infer a loss of self-control. Indeed, the evidence is to the contrary – the accused was allegedly engaged in a rational exchange of insults with the deceased shortly before the altercation began; after the altercation, he was engaged in a thoroughly controlled search for cigarettes, and an unremarkable interaction with his neighbour and girlfriend.

20. In short, there is nothing to suggest, either directly or by a process of inference, that the accused lost self-control at the time of the alleged offence of murder.

21. It is true that the accused spoke of some portion of the event as having been “a blur” in his recorded interview with police some hours later. But that was in the context of him professing to have a lack of complete memory of events as he was allegedly being struck by a large number of blows by two young men. In my evaluative judgment, that reference by the accused falls a long way short of constituting material upon which the partial defence should be left.

22. It was for those reasons that I indicated to counsel before they commenced their addresses that they should address upon the assumption that provocation would not be left to the jury in my summing-up, and I did not do so.

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Decision last updated: 05 July 2016