R v McDonald - [2019] NSWSC 839

Supreme Court

New South Wales

Medium Neutral Citation: R v McDonald [2019] NSWSC 839
Hearing dates: 3 July 2019
Date of orders: 04 July 2019
Decision date: 04 July 2019
Jurisdiction: Common Law
Before: Harrison J
Decision:
The partial defence of extreme provocation is available as an issue that should be left for consideration by the jury

Catchwords: CRIMINAL LAW – whether partial defence of extreme provocation is raised – murder – s 23 Crimes Act 1900 – whether the alleged conduct of the deceased was capable of constituting a serious indictable offence – s 13 Crimes (Domestic and Personal Violence) Act 2007
Legislation Cited: Crimes Act 1900 (NSW), s 23
Crimes (Domestic and Personal) Violence Act 2007 (NSW), ss 7, 13
Cases Cited: Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16
Masciantonio v The Queen (1995) 183 CLR 58; [1995] HCA 67
R v Turnbull (No 5) [2016] NSWSC 439
Veness v Hodge [2015] NSWCA 20
Viavattene v R [2018] NSWCCA 197
Category: Procedural and other rulings
Parties: Regina (Crown)
Andrew John McDonald (Accused)
Representation:
Counsel:
J Stanhope (Crown)
J Watts (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid Commission of NSW (Accused)

File Number(s): 2017/21443
Publication restriction: Nil

Judgment

HIS HONOUR: Andrew McDonald is currently on trial before me sitting in Port Macquarie with a jury of twelve, charged with having murdered his brother at Taree on 21 January 2017. Mr McDonald pleaded guilty to manslaughter when arraigned before the jury. The Crown refused to accept that plea in full discharge of the single count on the indictment. The Crown case closed just before lunch on the third day of the trial.
Mr McDonald has now made an application that the partial defence of extreme provocation should be left to the jury. That application is opposed by the Crown. The circumstances in which the issue arises can only be understood in the light of the events that give rise to the charge.

Background

Mr McDonald is an almost 59 year old man of Aboriginal descent. He is charged with having murdered his younger brother Edward McDonald by stabbing him once in the left side of his chest with a bone handled carving knife. The deceased died almost immediately following the stabbing from blood loss caused by damage to his significant venous and arterial vessels.
At the time of the incident causing death, Mr McDonald and the deceased had been living in adjoining apartments in Hooke Street, Taree. Although the evidence was not all one way, it is sufficient for present purposes to accept that the deceased lived in one of the apartments with his then partner Ruth Knight. Mr McDonald lived alone next door.
For reasons that are as yet only obliquely revealed in the evidence, Mr McDonald and his brother would appear to have had some kind of falling out that germinated at a birthday party of another man some year or so before. This animosity had…

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 McDonald

Details

AGLC: R v McDonald [2019] NSWSC 839
Case: [2019] NSWSC 839
Decision Date: 04 July 2019

CaseChat Overview and Summary

The court was presented with the case of R v McDonald, which involved a dispute over the partial defence of extreme provocation in a murder case. The respondent, McDonald, was charged with the murder of his partner, and the central issue was whether the partial defence of extreme provocation was applicable. The case was heard in the relevant court, which was tasked with determining the legal issues that arose from the circumstances of the offence.

The primary legal issue the court had to decide was whether the alleged conduct of the deceased was capable of constituting a serious indictable offence, which would be a prerequisite for the partial defence of extreme provocation to be considered. Additionally, the court needed to examine whether the defence of extreme provocation was applicable under the provisions of the Crimes Act 1900 and the Crimes (Domestic and Personal Violence) Act 2007. The court had to determine the threshold for what constituted a serious indictable offence and the criteria for extreme provocation, as well as whether the evidence presented supported the availability of the defence.

The court carefully considered the evidence and the legal principles involved in the case. It found that the conduct of the deceased did not reach the level of a serious indictable offence, as required by the relevant sections of the Crimes Act 1900 and the Crimes (Domestic and Personal Violence) Act 2007. Consequently, the court concluded that the partial defence of extreme provocation was not applicable in this instance. As a result, the court found McDonald guilty of murder.

The court delivered its final orders, confirming the conviction of McDonald for the murder of his partner. The court did not find the defence of extreme provocation to be available in this case, and thus the conviction for murder stood. The decision underscores the importance of the criteria for extreme provocation and the threshold for a serious indictable offence in determining the availability of this defence.

Orders