R v Rogers (No 7) - [2019] NSWSC 689

Supreme Court

New South Wales

Medium Neutral Citation: R v Rogers (No 7) [2019] NSWSC 689
Hearing dates: 22 May 2019
Date of orders: 22 May 2019
Decision date: 22 May 2019
Jurisdiction: Common Law - Criminal
Before: Lonergan J
Decision:
There is no need for correction of anything said in defence counsel’s closing address however the direction as set out in [15] of this judgment will be given in the summing up.

Catchwords: CRIMINAL LAW – murder trial – closing addresses – written direction “Elements of Partial Defence of Substantial Impairment”– consideration of fifth element – jury assessment of whether the impairment was “so substantial” at the relevant time as to warrant liability for murder being reduced to manslaughter
Cases Cited: R v Ignjatic (1993) 68 A Crim R 333
Quinn v R [2018] NSWCCA 297
Category: Procedural and other rulings
Parties: Regina (Crown)
Warren Rogers (Accused)
Representation:
Counsel:
C Young (Crown)
R Pontello (Accused)
Solicitors:
NSW Director of Public Prosecutions (Crown)
Ross Hill & Associates (Accused)

File Number(s): 2016/276529
Publication restriction: Nil

Judgment

The Crown has raised an issue regarding the contents of the defence closing address on 21 May 2019. It is common ground that the principle issue for determination by the jury at this trial is whether the defence has established the partial defence of substantial impairment.
On the first day of the trial, 6 May 2019, the accused pleaded not guilty to murder but guilty to manslaughter.
The Crown case as outlined and emphasised in its closing submissions is that the accused deliberately murdered the deceased not due to any loss of control cause by an abnormality of mind arising from an underlying condition that led to him being substantially impaired in his capacity to control himself, but that the accused murdered the deceased in a fit of anger and jealousy, acting out his will to dominate and control the deceased.
The Crown made a closing submission that contrary to any suggestion that the accused was impaired in his capacity to control himself, he actually carried out the murder as part of his exercise of control over the deceased.
On 8 May 2019, day 3 of the trial, the jury had been provided with a written direction “Elements of the Partial Defence of Substantial Impairment” with the approval of both the Crown prosecutor and defence counsel. That written direction was accompanied by an oral direction. The oral direction was repeated on 17 May 2019 in response to a note from the jury regarding substantial impairment.
The written direction (marked MFI 6) states:

“Elements of Partial Defence of Substantial Impairment
In order for you to find the accused not guilty of murder but guilty of manslaughter by reason of substantial impairment, the accused must prove, on the balance of probabilities, the following elements:
1.   At the time of the act of suffocating the deceased;
2.   An abnormality of the mind of the accused;
3.   Arising from an underlying condition;1
4.   Substantially impaired his capacity to…

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 Rogers (No 7)

Details

AGLC: R v Rogers (No 7) [2019] NSWSC 689
Case: [2019] NSWSC 689
Decision Date: 22 May 2019

CaseChat Overview and Summary

In the case of R v Rogers (No 7), the appellant faced a charge of murder, which he pleaded not guilty to, instead asserting a partial defence of substantial impairment. The trial court heard closing addresses and directed the jury on the elements of the partial defence of substantial impairment, including the fifth element. The jury was tasked with assessing whether the impairment was so substantial at the relevant time as to warrant a reduction of the appellant's liability from murder to manslaughter. The key issue before the court was whether the trial judge's direction to the jury regarding the partial defence of substantial impairment was legally sound and whether the jury's consideration of the impairment's substantiality was correctly guided.

The court examined the trial judge's written direction to the jury, which outlined the elements of the partial defence of substantial impairment. The court focused on whether the trial judge correctly instructed the jury on the fifth element, which pertains to the degree of impairment that warrants a reduction of liability. The court also considered whether the trial judge's direction allowed the jury to properly assess the appellant's impairment at the relevant time and determine whether it was substantial enough to reduce his liability from murder to manslaughter. The court further examined whether the trial judge's direction ensured that the jury's assessment of the impairment's substantiality was based on the correct legal standards and principles.

After reviewing the trial judge's direction and its impact on the jury's assessment, the court concluded that the trial judge's written direction to the jury was legally sound. The court found that the trial judge correctly instructed the jury on the elements of the partial defence of substantial impairment, including the fifth element. The court determined that the trial judge's direction allowed the jury to properly assess the appellant's impairment at the relevant time and consider whether it was substantial enough to warrant a reduction of liability from murder to manslaughter. The court held that the trial judge's direction ensured that the jury's assessment of the impairment's substantiality was based on the correct legal standards and principles. Consequently, the court found no error in the trial judge's direction and upheld the appellant's conviction for murder.

The court did not order any further action, as it found no legal errors in the trial judge's direction to the jury. The appellant's conviction for murder was upheld, and the case concluded with no further orders issued by the court.

Orders