R v Cullen
[2015] NSWSC 636
•26 May 2015
Supreme Court
New South Wales
Medium Neutral Citation: R v Cullen [2015] NSWSC 636 Hearing dates: 11-15, 18-22, 25-26 May 2015 Date of orders: 26 May 2015 Decision date: 26 May 2015 Jurisdiction: Common Law - Criminal Before: Harrison J Decision: Application refused
Catchwords: CRIMINAL LAW – murder – plea of guilty to manslaughter – whether Crown case sufficient to negative self-defence and provocation – application at close of Crown case for directed verdict of not guilty of murder but guilty of manslaughter – application refused Category: Procedural and other rulings Parties: Regina (Crown)
Christopher Cullen (Accused)Representation: Counsel:
Solicitors:
S Herbert (Crown)
W Terracini SC (Accused)
Director of Public Prosecutions (Crown)
Archbold Legal (Accused)
File Number(s): 2014/25737 Publication restriction: Nil
EX TEMPORE Judgment
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HIS HONOUR: The accused is on trial for the murder of his wife, Victoria Comrie Cullen, at Taren Point on 22 January 2014. To an indictment charging that offence the accused has pleaded not guilty. He has pleaded guilty to manslaughter. The Crown has not accepted that plea in discharge of the single count on the indictment.
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In the events that have occurred, and as a result of the way that this case has unfolded, it has become clear, and it is also uncontroversial, that the accused's plea of guilty to manslaughter is based upon ultimate conclusions favourable to him upon either or both of the following matters. First, that in killing the deceased he acted in self-defence. Inherent in his plea is that the accused accepts that his response to whatever threat he perceived in the circumstances was not a reasonable response. Secondly, that in killing the deceased he did so whilst acting under provocation.
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At the close of the Crown case the accused applied for a direction that the question of his guilt on the charge of murder should not be left to the jury but that they should be directed to return a verdict of not guilty of murder but guilty of manslaughter. That application is opposed. It arises and is based upon the following matters.
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In general terms, the accused contends that the Crown has failed to negative both self-defence and provocation. More particularly, the accused submits that there is no evidence in the Crown case upon the basis of which the jury could be satisfied beyond reasonable doubt that he was not acting in self- defence when he killed the deceased, or, that when he did so, he was acting under provocation. It is necessary to consider each of these in turn.
Self defence
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The evidence reveals that when the accused was apprehended at the scene in effect immediately or shortly following the death of the deceased, he had sustained and was clearly suffering from the effects of what have been described as "sharp force injuries" as well as blunt force injuries. The former appear to be stab wounds or penetrative knife injuries located on various parts of his body. At least five of these are located upon the upper left chest of the accused above his left nipple as clearly depicted in exhibits “T” and “XX”. A further similar but not identical wound appears below the accused's left nipple and two other similar wounds also appear on his torso, one on or close to the midline above the navel, and one to the left of that wound on the accused's flank slightly above his belt line.
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In an interview with the police the accused said that he had sustained one of these wounds at the hands of the deceased, or may have done, and that the others were self-inflicted. His precise words are to be found in the following question and answer sequence forming part of exhibit “S”.
“Q16. The wounds you've got in your chest and your stomach, where did they come from?
A. I think one might have been from her and the ones around my heart were from me."
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Other evidence in this trial so far reveals that the accused sustained a punctured left lung presumably, or arguably, as the result of one of the sharp force injuries sustained by him. The evidence does not enable a conclusion to be drawn either that his lung was punctured by a wound inflicted by him or by the deceased.
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On this application the accused contends that the Crown has failed, relevantly, to negative self-defence because it has led no evidence to establish, or from which the jury might properly conclude, that the deceased did not inflict at least one of his wounds in response to which he was entitled to defend himself. He argues that because there is positive and uncontradicted evidence from him in exhibit “S” that at least one of his wounds was inflicted by the deceased, the Crown must for that reason accept that it was so inflicted and that self-defence cannot therefore be ruled out.
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In my opinion, there are two fundamental difficulties with that argument. First, it is a matter for the jury, having regard to the whole of the evidence in the Crown case, whether or not they accept that the deceased wounded the accused as he maintains, or that she did anything else at all in response to which he was required to, or perceived that he needed to, defend himself. The evidence does not, in my opinion, permit of only one finding or conclusion in this respect. The jury is perfectly entitled to conclude, despite the accused's evidence to the contrary, that all of his wounds were self-inflicted and that the deceased offered him no threat of any kind from which he needed to defend himself. The jury would be similarly entitled to conclude beyond reasonable doubt that the accused's injuries were all self-inflicted and that in the events that occurred the only person needing to act in self-defence was the deceased. The evidence shows that she was left handed and her left hand and arm carried evidence of what at least one expert witness has described as "defensive wounds".
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Secondly, and in a related sense, even if the jury accepted the accused's evidence that the deceased did wound him, howsoever that might be thought to have occurred, it is clearly also open on the evidence for the jury to conclude that the accused was the aggressor and that the deceased was defending herself. In other words, self-defence will have been negatived by the very ferocity with the attack upon the deceased and the unlikely prospect that anything the accused did was in response to a threat posed by her.
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The evidence in the Crown case is therefore such that the jury could form a view either that the deceased wounded the accused as he maintains or that she did not. Neither finding is necessarily coextensive with a conclusion that the Crown has failed to lead evidence sufficient to satisfy a jury beyond reasonable doubt that self-defence has been negatived.
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In short, the whole of the circumstances of the case, including the violence that occurred at the scene and the anterior violence that apparently occurred in the garage area where the deceased lived, are such as to be capable of supporting a conclusion that no single piece of that evidence had anything at all to do with the accused's defending himself from anything at any time in any way at all. In that sense, self-defence will arguably have been negatived by the whole of the evidence in the Crown case. The jury would be entitled to conclude that the accused's actions were not in any respect committed in self-defence from an attack, or a threatened attack, by the deceased.
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This is not a case of there being no case fit to go to the jury. Even taking a view of the evidence most favourable to the accused that the deceased wounded him, it does not necessarily follow that what he agrees he did to the deceased at or around the time when that occurred was actually in response to a threat, or that such a conclusion is the only available conclusion.
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In short, in my opinion, there is evidence upon, or from which, the jury might properly conclude beyond reasonable doubt that the accused did not personally believe that his conduct, or any of it, was necessary for his defence. If the jury formed that view, the Crown will have succeeded in negativing self-defence.
Provocation
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In a cognate fashion the accused contends that the Crown has not tendered evidence sufficient to permit the jury properly to conclude beyond reasonable doubt that he was not acting under provocation. Perhaps understandably, the accused places considerable emphasis upon evidence capable of satisfying the jury that he was provoked. That evidence consists in his statement to the police, also forming part of exhibit “S” and is to be found in his answer to question 18 as follows:
“We went to Court today regarding a civil matter and she was taunting me with her sex life and I lost control and we had a fight, that's it, and I just didn't want to live no more after that."
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The accused submits that that is evidence of provocation sufficient to establish that his acts in killing the deceased were the result of a loss of self-control on his part that induced him to do what he did and, importantly, that there is no evidence to the contrary. He submits that the Crown has accordingly failed to negative provocation.
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In my opinion, there are two fundamental difficulties with this argument as well. First, the jury may or may not believe the accused's version that he was taunted as he says he was. Acceptance of his version is not a foregone conclusion, even in the absence of evidence to the contrary. Secondly however, even accepting that the jury believes the accused, and even accepting that his submission about there being no evidence to the contrary is also correct, it fails in my opinion to accommodate the second limb of the provocation equation.
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A conclusion by the jury that the accused was induced to lose his self-control by words or conduct of the deceased does not foreclose the jury's consideration of whether or not what the deceased did was such that it could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill her or inflict grievous bodily harm upon her. Consideration by the jury of that second limb is not determined by their answer to the first limb.
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There is in this case an unfortunate abundance of evidence of what happened to the deceased. In non-technical or non-medical terms it is clear that she suffered a significantly violent death and that she sustained several very serious wounds and injuries before that finally occurred. The objective test of whether the words or conduct of the deceased could have induced an ordinary person in the accused's position to have in effect done what he did has to be determined by or against the background of all of that evidence. There is in my opinion more than sufficient evidence upon the basis of which the jury could be satisfied beyond reasonable doubt that the words and conduct of the deceased could not have induced an ordinary person in the position of the accused so far to have lost self-control as to have formed any relevant intention.
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In my opinion, the application should be refused.
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Decision last updated: 03 June 2015
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