R v Songcuan (No. 3) - [2022] NSWSC 188

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Songcuan (No. 3) [2022] NSWSC 188
Hearing dates: 28 February 2022
Date of orders: 1 March 2022
Decision date: 01 March 2022
Jurisdiction: Common Law - Criminal
Before: Dhanji J
Decision:
The partial defence of extreme provocation should be left to the jury

Legislation Cited:
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14
Green v The Queen (1997) 191 CLR 334
Heron v The Queen (2003) 140 A Crim R 317; [2003] HCA 17
Johnson v The Queen (1976) 136 CLR 619; [1976] HCA 44
Lake Macquarie City Council v Morris (2005) 63 NSWLR 263; [2005] NSWSC 387
Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16
R v Chhay (1994) 72 A Crim R 1
R v Croft [1981] 1 NSWLR 126
Rogers v R (2021) 104 NSWLR 305; [2021] NSWCCA 61
Stingel v The Queen (1990) 171 CLR 312
The Queen v R (1981) 28 SASR 321; (1981) 4 A Crim R 127
Van Den Hoek v The Queen (1986) 161 CLR 158

Category: Procedural rulings
Parties: Regina (Crown)
Engracio Songcuan (Accused)
Representation:
Counsel:
A Robertson (Crown)
B Royce (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Chidiac Lawyers (Accused)

File Number(s): 2020/131543
Publication restriction: Nil

Judgment

Engracio Songcuan (“the accused”) is charged with murdering his wife Erlinda Songcuan (“the deceased”) on 2 May 2020. On 4 June 2021, the accused pleaded not guilty to the charge of murder before R A Hulme J. The matter is listed for trial before me in Katoomba on 2 March 2022.
On 24 January 2022, the defence filed a notice of defence pursuant to s 143 of the Criminal Procedure Act 1986 (NSW), indicating an intention of the accused to rely on the partial defence of extreme provocation under s 23 of the Crimes Act 1900 (NSW).
The accused has now made an application for a ruling in advance that there is evidence that the act causing death was in response to extreme provocation, such that the partial defence should be left to the jury. It is anticipated that the defence will open on the issue if the Court finds there is sufficient evidence to raise the partial defence. The Crown does not oppose the making of an advance ruling but contends that extreme provocation is not available on the evidence.
As the accused has been arraigned on the indictment, this Court is invested with jurisdiction, and “any orders that may be made by the court for the purposes of the trial in the absence of a jury may be made” prior to the empanelment of a jury: s 130, Criminal Procedure Act 1986 (NSW). Section 192A of the Evidence Act 1995 (NSW) provides that where there is a question about the…

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

Case: [2022] NSWSC 188
Decision Date: 01 March 2022

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the Crown is prosecuting Engracio Songcuan for the murder of his wife, Erlinda Songcuan. The accused has indicated an intention to rely on the partial defence of extreme provocation under s 23 of the Crimes Act 1900 (NSW). The accused has applied for a ruling in advance that there is evidence that the act causing death was in response to extreme provocation, such that the partial defence should be left to the jury. The Crown does not oppose the making of an advance ruling but contends that extreme provocation is not available on the evidence.

The issues for consideration on the application are as follows: whether the acts of the accused causing death were in response to conduct of the deceased towards or affecting the accused; whether the conduct of the deceased was a serious indictable offence; whether the conduct of the deceased caused the accused to lose self-control; and whether the conduct of the deceased could have caused an ordinary person to lose self-control to the extent of intending to kill or intending to inflict grievous bodily harm on the deceased.

The court found that there was reasonable evidence on which the jury could find that the acts of the accused causing death were in response to the actions of the deceased. The conduct of the deceased reported by the accused could fall within the definition of “intimidation” and an inference is available the deceased had an intention of causing the accused to fear physical or mental harm. The accused’s evidence, together with the broader context, established that there was some evidence the conduct of the deceased caused the accused to lose self-control. The court was satisfied that there was evidence on which the jury could find that the conduct of the deceased could have caused an ordinary person to lose self-control to the extent of intending to kill or intending to inflict grievous bodily harm on the deceased.

Accordingly, it was appropriate to leave the partial defence of extreme provocation to the jury.

Orders