R v Fesus (No. 7)

[2017] NSWSC 1422

Supreme Court

New South Wales

Medium Neutral Citation:

R v Fesus (No. 7) [2017] NSWSC 1422

Hearing dates:

13 September 2017

Date of orders:

13 September 2017

Decision date:

20 October 2017

Jurisdiction:

Common Law - Criminal

Before:

Johnson J

Decision:

Publication of reasons for the following trial rulings:

 

(a) declining to leave provocation manslaughter to jury;

 (b) leaving manslaughter by unlawful and dangerous act to the jury.

Catchwords:

CRIMINAL LAW – murder trial – whether provocation manslaughter and manslaughter by unlawful and dangerous act ought be left to the jury – provocation manslaughter not left to the jury – manslaughter by unlawful and dangerous act left to the jury – publication of reasons for rulings

Legislation Cited:

Crimes Act 1900

Cases Cited:

Heron v The Queen (2003) 197 ALR 81; [2003] HCA 17
Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16
R v Fesus (No. 8) [2017] NSWSC 1423
R v Youssef (1990) 50 A Crim R 1

Texts Cited:

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Category:

Procedural and other rulings

Parties:

Regina (Crown)
Steve Frank Fesus (Accused)

Representation:

Counsel:
Mr G Smith SC (Crown)
Mr K Chapple SC (Accused)

  Solicitors:
Director of Public Prosecutions (Crown)
Nyman Gibson Miralis (Accused)

File Number(s):

2013/207336

Publication restriction:

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Judgment

1. JOHNSON J: The Accused, Steven Frank Fesus, was charged by indictment with the murder of his wife, Jodie Melissa Fesus (hereinafter referred to as “Jodie”), at Mt Warrigal on 11 August 1997.

2. It was the Crown case that the Accused killed his wife by strangling or choking her in their house at Mt Warrigal and then transported her body to Seven Mile Beach where he buried her in a shallow grave. The Accused denied that he was involved at all in the disappearance or death of his wife.

3. In advance of closing addresses, I heard submissions as to whether manslaughter ought be left to the jury by way of provocation or unlawful and dangerous act.

4. Mr Chapple SC, for the Accused, did not seek that either form of manslaughter should be left to the jury in this case (T1431, 1447).

5. I was satisfied that manslaughter by unlawful and dangerous act should be left to the jury (T1459).

6. I determined that provocation manslaughter should not be left to the jury in the circumstances of this case and indicated that I would publish my reasons for that ruling at a later time (T1442).

7. What follows constitutes my reasons for these rulings.

Provocation Manslaughter

8. I note that provocation manslaughter was left to the jury at a trial of the Accused in 2015 presided over by Wilson J. The jury could not agree upon a verdict at that trial and was discharged. Both the Crown and then counsel for the Accused agreed that provocation should be left to the jury at that trial. No ruling was required from Wilson J on that issue.

9. As the alleged murder in this case occurred before the amendment of s.23 Crimes Act 1900 in June 2014 which replaced provocation with extreme provocation, this ruling applies the provision as it stood in August 1997. At that time, s.23 provided as follows:

“23    Trial for murder - provocation

(1)    Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter.

(2)    For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where:

(a)    the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused, and

(b)    that conduct of the deceased was such as 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, or to inflict grievous bodily harm upon, the deceased,

whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time.

(3)    For the purpose of determining whether an act or omission causing death was an act done or omitted under provocation as provided by subsection (2), there is no rule of law that provocation is negatived if:

(a)    there was not a reasonable proportion between the act or omission causing death and the conduct of the deceased that induced the act or omission,

(b)    the act or omission causing death was not an act done or omitted suddenly, or

(c)    the act or omission causing death was an act done or omitted with any intent to take life or inflict grievous bodily harm.

(4)    Where, on the trial of a person for murder, there is any evidence that the act causing death was an act done or omitted under provocation as provided by subsection (2), the onus is on the prosecution to prove beyond reasonable doubt that the act or omission causing death was not an act done or omitted under provocation.

(5)   This section does not exclude or limit any defence to a charge of murder.”

10. It has been said that, in determining whether the partial defence of provocation should be left to the jury, the Accused bears an evidentiary onus to point to evidence from which it could be inferred that there is at least a reasonable possibility that the homicidal act of the Accused was provoked in accordance with s.23: R v Youssef (1990) 50 A Crim R 1 at 3. In this case, the Accused did not seek to have provocation left to the jury. In accordance with authority, the Court was required nevertheless to consider the evidence and decide if there was a proper foundation for provocation to be left to the jury.

11. In Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16, French CJ, Kiefel, Bell and Keane JJ said at 279 [16] (footnotes omitted):

“Where provocation is raised by the evidence, the determination of whether it has been negatived is for the jury. Whether the subjective limb is negatived is a question of fact. Whether the objective limb is satisfied is a question of opinion or, to adopt Glanville Williams' classification, it is a question of ‘evaluative fact’. 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. The determination of the threshold question requires the trial judge (and the appellate court) to consider the sufficiency of the evidence to allow that an ordinary person provoked to the degree the accused was provoked might form the intention to kill or to do grievous bodily harm and act upon that intention, as the accused did, so as to give effect to it. The respective roles of judge and jury in the latter determination is the issue raised by the first ground of the appeal.”

12. I accepted that caution must be exercised before declining to leave provocation to the jury: Lindsay v The Queen at 284 [27].

13. It remained a matter for the Court as to whether the partial defence of provocation should be left to the jury even if, as here, Senior Counsel for the Accused expressly declined to make such an application. For the purpose of the Court’s ruling, the Crown assisted the Court by pointing to areas of evidence which needed to be considered on the question whether this partial defence ought be left (T1431-1439).

14. The trial was conducted for the Accused upon the basis that he had no involvement in the disappearance and death of Jodie. The Crown alleged that the Accused made certain admissions to an undercover police officer in the course of a covert operation in July 2013 to the effect that he strangled or choked Jodie following an argument and thereafter buried her body (see annexure to R v Fesus (No. 8) [2017] NSWSC 1423). In addition, the Crown relied upon a multi-faceted circumstantial case in support of its claim that the unavoidable conclusion was that it was the Accused who murdered Jodie. The Accused did not give evidence at the trial.

15. It was the Crown case that the Accused (then 26 years old) murdered Jodie (then aged 18 years) by choking or strangulation at their Mt Warrigal home on the evening of 11 August 1997, and then transported her body to an area near a camping site at Seven Mile Beach where he buried the body in a shallow sandy grave. The body of Jodie was located on 14 September 1997. The Accused and Jodie had married in May 1997. There were two children in the family – a daughter born in July 1995 (of whom the Accused was not the father) and a son born to their relationship in June 1996. The evidence confirmed that the Accused was the father of this child.

16. The evidence which fell for consideration on the issue of provocation may be summarised as follows. For the purpose of s.23 Crimes Act 1900, the focus is upon any conduct or words of Jodie towards or affecting the Accused and any evidence of the Accused losing self-control as a result of such conduct or words.

17. Firstly, the evidence of Jason Nowicki and his wife, Leanne Nowicki, that the Accused, Jodie and their children attended the Nowicki household for dinner on the evening of 11 August 1997. Both Jason and Leanne Nowicki gave evidence that, in the course of the evening, an argument occurred between the Accused and Jodie as to which of them was to change the nappy of their infant son. Jason Nowicki gave evidence that, during the course of this argument, Jodie said words to the effect that the child “was his son too and he should be changing him as well” (T92). The Accused was observed rolling his eyes in the course of this incident with Jodie then hitting the Accused hard to the chest once. The Accused was seen to become quiet for a period, but did not otherwise respond. Thereafter, things settled down and some ice cream was purchased and was eaten by those in attendance. Leanne Nowicki testified that, while the two men were absent from the house to purchase ice cream, Jodie told her of problems she was having with the Accused and that she was thinking of leaving him and taking the children with her (T102). Leanne Nowicki said that Jodie had spoken to her before that evening about her concerns with the Accused. There was other evidence to a similar effect, including that of Jodie’s stepmother, Debra Smith, that Jodie told her in the days before 11 August 1997 that she had “had enough” and was thinking of leaving the Accused (T582, 606).

18. Secondly, in the course of a record of interview with police on 26 August 1997 (after Jodie had disappeared, but before her body was found on 14 September 1997), the Accused said that, during the course of the argument at the Nowicki residence on the evening of 11 August 1997, Jodie had said to him words to the effect, “He’s not your fucking child” referring to their infant son (Exhibit J, pages 18-22, Q/A72-73). It is noteworthy that Jason and Leanne Nowicki did not give evidence of such words being spoken in their presence on the evening of 11 August 1997, nor was it suggested to either of them in cross-examination that this had happened. Indeed, Jason Nowicki gave evidence to the contrary effect – that Jodie commented that the child “was his son too” (see [17] above).

19. Thirdly, in the course of a further record of interview with police on 28-29 December 2000, the Accused was reminded of what he had said to police on this topic in Exhibit J (see [18] above). Although he said there was an argument when he and Jodie were at the Nowicki residence, he said that he could not remember if Jodie had said words to the effect, “He’s not your fucking child” (Exhibit BF, page 272, Q/A2086ff).

20. The Accused told police in that interview that there had been no argument when he and Jodie had returned home from the Nowicki’s residence and that everything was “just back to normal” (Exhibit BF, page 199, Q/A1459ff). When asked about his relationship with Jodie, the Accused said, “You always have your ups and downs” (Exhibit BF, page 256, Q/A1936).

21. Fourthly, in the course of the recorded conversation on 8 July 2013 with the undercover officer (which formed part of a covert operation), the Accused said that he had “strangulated” or “choked” Jodie in the lounge room of their home on the evening of 11 August 1997 and then conveyed her body to Seven Mile Beach where he buried her. The Accused said that before he killed her, “we got into a heated argument” (Exhibit BV, page 32). The Accused did not say what the argument was about. He said that the argument was not over either of their children (Exhibit BV, pages 33, 37, 43-44). The Accused did not deny having this conversation with the undercover officer (which was video and audio recorded). Rather, the Accused told police in a record of interview on 8 July 2013 (Exhibits BW, BX) that he lied when he said that he had killed Jodie and buried her body (see annexure to R v Fesus (No. 8)).

22. During the conversation on 8 July 2013, the following was said (Exhibit BV, page 76):

Undercover officer:   “What was she, what was said that ticked you off,…?’.

Accused:   “I don’t know. It’s just, I think it was just a lot of things. It’s just like, I slave my arse off working day and night, working at home doing everything else …”.

23. In this context, the Accused said that Jodie had “been lazy” (Exhibit BV, page 76).

24. When asked by the undercover officer whether any question that the Accused was the father of their infant son was “playing on your mind that night”, the Accused responded emphatically in the negative (Exhibit BV, page 77).

25. When asked “What was it that made you do it to her?”, the Accused responded, “I don’t know. It was just a lot of things just bottled up just sick and tired of doing everything” (Exhibit BV, page 78.4).

26. A little later, the Accused said, “… she did say something once. She was going to leave me and take the kids away from me that I’d never see them again. Maybe that might have been a tick off, like, you can’t take my family off me” (Exhibit BV, page 78).

27. Soon after, the undercover officer said, “So was, it seems to me what ticked you off and correct me if I’m wrong mate, she’s going to take your kids?” to which the Accused responded “They mean a lot” (Exhibit BV, page 79).

Consideration of Evidence

28. I keep in mind the two elements of the partial defence of provocation as contained in s.23(2) (see [9] above). Firstly, the act of the Accused causing death must be the result of a loss of self-control on his part that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the Accused: s.23(2)(a). It is necessary to consider what the evidence revealed concerning alleged conduct or words of Jodie for the purpose of determining whether there is a foundation for provocation to be left to the jury.

29. Secondly, the conduct of Jodie must be such as could have induced an ordinary person in the position of the Accused to have so far lost self-control as to form an intent to kill or to inflict grievous bodily harm upon her, whether the conduct of the deceased occurred immediately before the act causing death or at any previous time: s.23(2)(b).

30. As at 11 August 1997, the Accused was almost 27 years old. Jodie had turned 18 years old in April 1997.

31. The evidence of Jason and Leanne Nowicki referred to an argument between the Accused and Jodie earlier in the evening of 11 August 1997 about changing a nappy, with Jodie striking a single blow to the Accused in the course of that incident. The Accused’s record of interview with police on 26 August 1997 included an assertion that, whilst at the Nowicki residence, Jodie had told him that their infant son was not his child. There was no support in the evidence of Jason and Leanne Nowicki at the trial that words to this effect were spoken in their house. Indeed, the evidence of Jason Nowicki seemed to be to the contrary. Further, when asked about the same event by police in his December 2000 record of interview, the Accused said he could not remember such words being spoken.

32. In the course of the recorded conversation with the undercover officer on 8 July 2013, the Accused said that he had strangled or choked Jodie following an argument about an undisclosed topic. He stated specifically that the argument was not about either of the children and that any earlier discussion between Jodie and himself concerning the paternity of their infant son was not playing on his mind at the time of the killing.

33. The essence of what the Accused said to the undercover officer was that he felt frustrated and upset by the fact that he had to undertake domestic tasks concerning the children because Jodie was “lazy”. He agreed that he felt “bottled up” about matters of this type. The Accused stated that Jodie was going to take the children and leave him, and that this played on his mind as well at the time he killed Jodie.

34. The evidence of Leanne Nowicki and Debra Smith was that Jodie was telling each of them that she was unhappy in the relationship and was thinking of leaving the Accused and taking the children with her. It was the Crown case that Jodie said this to the Accused on the evening of 11 August 1997 (as the Accused explained to the undercover officer) and that it was then that he killed his wife.

35. The threshold for leaving provocation to the jury is relatively low as the reference to Lindsay v The Queen (at [11] above) makes clear. However, there must be a foundation concerning both the subjective and objective features as contained in s.23(2)(a) and (b) of the Act.

36. The argument at the Nowicki house about changing the baby’s nappy does not provide a foundation for provocation, even when accompanied by a blow struck by Jodie to the Accused. In any event, the evidence indicated that things settled down after that argument.

37. The suggestion that Jodie had asserted that the Accused was not the father of their infant son was tenuous in the extreme. There was no support in the evidence of Jason and Leanne Nowicki that such a statement was made at their house. Indeed, the evidence of Jason Nowicki seemed to be to the contrary. The Accused asserted this in his interview with police on 26 August 1997, but did not repeat the claim when interviewed again by police in December 2000. Further, in his conversation with the undercover officer on 8 July 2013, the Accused stated specifically that thoughts about whether he was the child’s father were not playing on his mind on 11 August 1997.

38. In my view, the tenuous and contradictory material on this aspect was not such as to reach even the low threshold for provocation to be left to the jury.

39. Beyond that, the Accused appeared to raise generalised grievances about his workload with his young family with criticisms being made of his young wife whom he had married just three months before. Grievances or criticisms about the domestic workload of a spouse do not, in my view, provide an evidentiary foundation with respect to the first leg of provocation under s.23(2)(a) of the Act. Nor does a statement by a wife that she proposed to leave her husband and take the children with her.

40. The existence of a level of frustration at a person’s domestic workload, together with upset at news that the person’s spouse proposed to leave and take the children, did not provide a foundation for provocation to be left to the jury having regard to the requirements of s.23(2)(a) Crimes Act 1900.

41. Even if the matters raised above were sufficient to satisfy the first leg, I was entirely unpersuaded that the conduct of Jodie of this type was capable of providing a proper foundation for the ordinary person test contained in s.23(2)(b) of the Act. In my view, the evidence failed to provide a foundation concerning the possible reaction of the hypothetical ordinary person faced with such circumstances. As in Heron v The Queen (2003) 197 ALR 81; [2003] HCA 17 at 102-103 [90]-[98], having considered evidence relevant to the ordinary person test in s.23(2)(b), I was satisfied that it was not necessary to give any directions on provocation in this case.

28. Having considered the available evidence in discharge of the Court’s obligation to determine whether provocation should be left to the jury, I was satisfied that provocation should not be left to the jury in the circumstances of this case and I so ruled on 13 September 2017 (T1442).

Manslaughter by Unlawful and Dangerous Act

43. Senior Counsel for the Accused made clear his instructions that manslaughter by unlawful and dangerous act should not be left to the jury (T1447).

44. The basis upon which this class of manslaughter arose for consideration was the conversation on 8 July 2013 between the undercover officer and the Accused. In the course of that conversation, the Accused said that he had strangled or choked Jodie and had transported her body to the area of Seven Mile Beach where he buried her. In the course of describing what had happened, the Accused said at one point, “It wasn’t a struggle or anything” and “I didn’t throw her at all. Maybe I hugged her too hard or something that’s what I think I did” (Exhibit BV, page 79).

45. To find the Accused guilty of murder, it was necessary for the jury to be satisfied beyond reasonable doubt that he intended to kill Jodie, or intended to cause her grievous bodily harm or that he acted with reckless indifference to human life in committing the act which caused her death. If the jury was not satisfied beyond reasonable doubt of any of these forms of the mental element for murder, then the question would arise as to whether it was open to the jury, having found the Accused not guilty of murder, to return a verdict of guilty of manslaughter by unlawful and dangerous act.

46. I was satisfied that it was appropriate in this case to leave manslaughter by unlawful and dangerous act to the jury. Having indicated to counsel that I proposed to take this course, neither the Crown nor Senior Counsel for the Accused sought to make any further submission on the issue (T1459).

47. It was for these reasons that I determined to leave manslaughter by unlawful and dangerous act to the jury in this trial.

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Decision last updated: 20 October 2017