Reasons for Decision of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Lovell)
14 April 2016
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - PROVOCATION - AVAILABILITY OF DEFENCE
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - PROVOCATION - CONDUCT CAPABLE OF AMOUNTING TO
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - PROVOCATION - EVIDENCE
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - ATTEMPT - PARTICULAR OFFENCES - OTHER CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - APPLICATION OF PROVISO TO PARTICULAR CASES
Appeal against conviction. The applicant was convicted by majority verdict of the attempted murder of her husband. The applicant admitted that she stabbed the complainant twice in the neck with a knife. One of the wounds cut the carotid artery and was potentially fatal. At trial, the applicant raised self defence, giving evidence that she had used the knife to defend herself from the complainant, who had punched her.
The applicant and the complainant had a troubled relationship. The applicant gave evidence that the complainant was verbally abusive and, on occasion, exhibited physical violence toward her. The evidence suggested that both the applicant and the complainant had engaged in extramarital affairs and had, at times, left the matrimonial home. However, the couple continued to have a sexual relationship. The applicant gave evidence that she was trying to make the marriage work. She said that the complainant had also indicated that he was open to reconciliation.
Both the applicant and the complainant gave evidence that, on 25 January 2014, the applicant told the complainant that she was pregnant and that, when she did so, he became very angry and said he wanted to punch her in the stomach to end the pregnancy. The applicant gave evidence that on 5 March 2014 she attempted to talk to the complainant about their marriage and he told her to treat it as if he were never coming back. She gave evidence that the complainant came toward her, pushed her and then punched her. The applicant went and got a knife and then stabbed the complainant after he punched her a second time.
The applicant gave evidence that the punches to her stomach caused her to feel upset and worried about losing her unborn child. The complainant denied punching the applicant in the stomach. There was medical evidence of a perisac haematoma inside the womb, possibly caused by blunt force trauma, which gave some support to this aspect of the applicant’s evidence. The complainant gave evidence that the applicant yelled and started to breathe heavily after she grabbed the knife. The applicant gave evidence that she was not thinking at that point. Immediately after…
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.
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Details
AGLC
R v Rogers [2016] SASCFC 38
Case
[2016] SASCFC 38
Decision Date
CaseChat Overview and Summary
In R v Rogers, the applicant, Melissa Rogers, appealed her conviction for attempted murder of her husband. The appeal concerned the trial judge's failure to direct the jury on the partial defence of provocation, as provided for in section 270AB of the Criminal Law Consolidation Act 1935. The applicant argued that the omission constituted a miscarriage of justice, entitling her to a lesser verdict of attempted manslaughter.
The central legal issue before the court was whether the evidence presented at trial was sufficient to raise the defence of provocation, thereby requiring the judge to instruct the jury on its availability. This involved an assessment of whether the provocation, viewed at its highest in favour of the applicant, was capable of causing an ordinary person to lose self-control and act in the manner the applicant did, and whether the applicant herself actually lost self-control as a result of the provocation.
The court considered the principles of provocation as outlined in *Lindsay v The Queen*, which requires both an objective and a subjective limb. The objective limb considers whether the provocation was such that an ordinary person might lose self-control and form the intention to kill or do grievous bodily harm. The subjective limb requires that the accused was actually provoked and acted while deprived of self-control. The court noted that the applicant's counsel had initially requested a direction on provocation but later withdrew it, stating it did not arise on the facts. Despite this withdrawal, the appellate court was required to determine if the evidence, when viewed most favourably to the applicant, was capable of supporting the defence.
Ultimately, the court allowed the appeal, set aside the conviction for attempted murder, and ordered a retrial. The court concluded that it was not an appropriate proceeding to substitute a verdict of attempted manslaughter and that a properly directed jury might have wholly rejected the defence of provocation.
Orders
Orders of the court
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Background
Background to the litigation
In Lindsay,[4] the High Court addressed the law of provocation applicable in this jurisdiction. As to the relevant principles, the plurality observed:[5]Provocation at common law operates to reduce what would otherwise be murder to manslaughter. Although it is common to describe the doctrine as a “partial defence”, the true position is that the unlawful intentional killing of another under provocation is not murder. The malice that is implicit in the intention to kill or to do grievous bodily harm is denied in the case of a killing done under provocation. There are two conditions for the operation of the doctrine: first, the provocation must be such that it is capable of causing an ordinary person to lose self-control and act in the way the accused did (the objective limb); and second, the provocation must actually cause the accused to lose self-control and the killing must take place while the accused is deprived of his or her self-control (the subjective limb). The focus of the objective limb is upon the capacity of the provocation to cause an ordinary person to lose self control and form the intention to kill or to do grievous bodily harm. Where the evidence raises the issue, the prosecution must prove that the killing was not done under provocation. The prosecution may do so by negativing beyond reasonable doubt either of the limbs of the doctrine. 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. ...[Footnotes omitted. Emphasis added.][4] Lindsay v The Queen (2015) 89 ALJR 518.[5] Lindsay v The Queen (2015) 89 ALJR 518, 523.Background The defendant and her husband were married in the year 2003. At the time of the stabbing, there was one child of the marriage, a son, K, aged five years. Both the defendant and her husband were in regular employment. They owned a home in suburban Adelaide. The evidence established that they had a robust sex life together and, additionally, attended what were described as “sex parties” in the Adelaide hills. The marriage initially appeared to be stable and happy. However, sometime after the birth of their son, difficulties appeared. The defendant, over time, became concerned over the possibility that her husband had developed an interest in other women and her concerns and anxiety heightened in the year or so leading to the stabbing. Some six months before the stabbing, the defendant herself engaged in an extramarital affair. In the months leading to the stabbing, both parties had, at times, left the matrimonial home. Notwithstanding the above circumstances, the defendant and her husband were, from time to time, on good relations and often engaged in sexual activity.
Evidence
Evidence Before The Court
As earlier discussed, the ultimate question for this Court is whether the partial defence of provocation should have been left to the jury. The assessment of the gravity of the provocative conduct, from the viewpoint of the defendant, is to be conducted upon a consideration of the evidence at its most favourable to the defendant. The question of what weight is to be given to the evidence forms no part of the exercise and, as such, the trial Judge did not enjoy any advantage over this Court.The Evidence at its Highest The following summarises the evidence at its highest, from the point of view of the defendant, for the purposes of considering whether provocation should have been left to the jury.-The defendant and her husband were married in the year 2003. The defendant became pregnant by her husband but lost the baby. Later they had a son, K, born in 2008. They had purchased a block of land together in suburban Adelaide, built a house and had lived there for some years as a family. In January 2014, the defendant again became pregnant by her husband. A daughter was later born. -After some years the defendant became concerned about the state of the marriage. She was anxious for the marriage to continue. She wanted the family to continue as a family.-The defendant’s charged conduct occurred against the background of the troubled nature of the relationship between the defendant and her husband in the months leading to the stabbing.-The defendant’s husband commenced a relationship with another woman in January 2014. He kept hidden from the defendant the true nature of this relationship.-On learning from the defendant that she was pregnant in or about late January 2014, the defendant’s husband threatened to punch her in the stomach to terminate the pregnancy.-On or about 23 February 2014, on a family outing at the beach, the defendant’s husband became enraged and threatened to kill the defendant and smash her skull in. He said that he would be better off if she was dead.-At the defendant’s instigation, and with her husband’s support, they attended two marriage counselling sessions in early 2014. A further counselling session had been arranged for a time after the stabbing. -The defendant’s husband kept giving the defendant mixed messages about whether the marriage was salvageable. He indicated that he wanted to “[keep] the door open” for a reconciliation between them.-The defendant’s husband had on occasions exhibited physical violence towards the defendant and had verbally abused her, yet he continued to engage in sexual activity with her.-In the days leading to the stabbing, the defendant’s husband was not responding to the defendant’s attempts to contact him about their child K.-On 5 March 2014, the defendant’s husband arrived at the matrimonial home at 4.20 am to look after K while the defendant went to work. The defendant attempted to discuss their matrimonial difficulties and the continuation of their marriage. The defendant spoke of needing hope to which her husband responded “treat it as if I’m never coming back”. The discussion took place in the bedroom.-The defendant’s husband went to leave the bedroom. He was angry at the time. He had physical contact with the defendant when leaving the bedroom by pushing her out of his way and then punching her in the chest. The defendant followed her husband into the hallway and then went into the kitchen. On her return to the bedroom, when they were both in the hallway, he pushed her into a doorframe and then punched her in the left side of her stomach. At the time she was punched in her stomach, the defendant felt upset and was worried about losing her unborn child.-The defendant walked into the bedroom and grabbed a knife from the top of a tallboy. The defendant punched her in the side of the stomach a second time. The defendant yelled out and was breathing heavily. She went to stab her husband in the arm. As she did so she closed her eyes and stabbed him twice in quick succession. The defendant’s evidence was that she “wasn’t thinking at [the] point” she grabbed the knife.-Once the defendant realised that she had stabbed her husband in the neck she apologised and rang triple zero for an ambulance. -There was medical evidence that the defendant had sustained a perisac haematoma. One possible cause of that is blunt force trauma.
Decision
Reasons for decision
GRAY J
PEEK J
LOVELL J
Further, this is not an appropriate proceeding in which to substitute a verdict of attempted manslaughter. A properly directed jury may wholly reject the partial defence of provocation and, consequently, there should be a new trial on the charge of attempted murder. Conclusion For these reasons I joined in the order of the Court made on 14 December 2015, allowing the appeal, setting aside the conviction of attempted murder and ordering a retrial. Introduction Ms Melissa Rogers (the applicant) was convicted by majority verdict of the attempted murder of her husband, Mr K (the deceased). It was alleged (and not disputed by the applicant) that she stabbed her husband twice in the neck with a knife; one of the wounds cut the carotid artery and was potentially fatal. The information appears as follows:Melissa Carolyn [Rogers] is charged with the following offences:First CountStatement of OffenceAttempted Murder. (Sections 11 and 270A of the Criminal Law Consolidation Act, 1935).Particulars of OffenceMelissa Carolyn [Rogers] on the 5th day of March 2014 at Craigmore, attempted to murder James K.Second CountStatement of OffenceAggravated Causing Serious Harm with Intent to Cause Serious Harm. (Section 23(1) of the Criminal Law Consolidation Act, 1935).Particulars of OffenceMelissa Carolyn [Rogers] on the 5th day of March 2014 at Craigmore, caused serious harm to James K, intending to cause him serious harm.It is further alleged that Melissa Carolyn [Rogers] used an offensive weapon, namely a knife, when committing the offence. No verdict was returned on count 2 since it was an alternative to count 1. The sole ground of appeal: Failure to direct on provocation Section 270AB of the Criminal Law Consolidation Act 1935 provides that in a case of attempted murder, a lesser verdict of attempted manslaughter may be returned if the partial defence of provocation is not negatived by the prosecution. The sole ground of appeal claims that the trial miscarried as a result of the trial Judge’s omission to direct the jury as to provocation. Both the matter of permission to appeal and extension of time were referred to this Court by the single Judge. The position taken by counsel at trial concerning provocation At trial, the applicant gave evidence that her husband had “come towards” her and punched her; that she had picked up the knife and used it to defend herself; and that she had not aimed at her husband’s neck, but had closed her eyes and intended to strike him in the arm. Her defence was that the prosecution did not prove the requisite intent or negative the defence of self-defence and that she was therefore entitled to a full acquittal on both counts 1 and 2. The applicant’s counsel initially asked the Judge to direct the jury on the issue of provocation. The Judge indicated that his then view was that he was unlikely to do so, but that he was willing to hear more detailed submissions on the matter. Prosecution counsel did not suggest that provocation be left. Defence counsel, after a weekend break, withdrew his request stating “I thought about that on the weekend. It doesn’t arise on the facts, in my view”.The doctrine in Pemble v The Queen