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Rogers v R

Rogers v R

Case [2021] NSWCCA 61 9 April 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Rogers v R [2021] NSWCCA 61
Hearing dates: 29 July 2020
Date of orders: 9 April 2021
Decision date: 09 April 2021
Before: Johnson J at [1];
N Adams J at [173];
Ierace J at [174]
Decision:
1. The Appellant is refused leave under Rule 4 Criminal Appeal Rules (NSW) to rely upon the ground of appeal.
2. The Appellant is refused leave to appeal against conviction.

Catchwords:
APPEAL – conviction – Applicant convicted of murder – Applicant suffocated his wife – partial defence of substantial impairment relied upon unsuccessfully at trial – partial defence of extreme provocation not relied upon at trial – contended on appeal that extreme provocation should have been left to jury – consideration of partial defence of extreme provocation in s 23 Crimes Act 1900 (NSW) – proper construction and operation of s 23 – held that partial defence of extreme provocation not raised on evidence at trial – miscarriage of justice not established – leave refused under Rule 4 Criminal Appeal Rules – leave to appeal against conviction refused

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes Amendment (Provocation) Act 2014 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules (NSW)
Interpretation Act 1987 (NSW)
Criminal Code (Qld)
Crimes (Homicide) Act 2005 (Vic)
Criminal Code Amendment (Abolition of Defence of Provocation) Act 2003 (Tas)
Criminal Law Amendment (Homicide Act 2008) (WA)
Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Act 2020 (SA)

Cases Cited:
ARS v R [2011] NSWCCA 266
Green v The Queen (1997) 191 CLR 334; [1997] HCA 50
Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16
Mancini v Director of Public Prosecutions [1942] AC 1
Masciantonio v The Queen (1995) 183 CLR 58; [1995] HCA 67
McIntyre v R (2009) 198 A Crim R 549; [2009] NSWCCA 305
Moffa v The Queen (1977) 138 CLR 601; [1977] HCA 14
Peniamina v The Queen (2020) 95 ALJR 85; [2020] HCA 47
Pollock v the Queen (2010) 242 CLR 233; [2010] HCA 35
R v Bentley; R v Davies; R v Thomas; R v Tilley [2019] NSWSC 283
R v Cliff (No. 5) [2018] NSWSC 166
R v Cliff (No. 6) [2018] NSWSC 587
R v McDonald [2019] NSWSC 839
R v McDonald [2019] NSWSC 858
R v Rogers (No. 9) [2019] NSWSC 1622
R v Singh [2012] NSWSC 637
R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130
R v Turnbull (No. 25) [2016] NSWSC 831
R v Turnbull (No. 5) [2016] NSWSC 439
Stingel v The Queen (1990) 171 CLR 312; [1990] HCA 61
The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 93 ALJR 1106; [2019] HCA 35
Turnbull v R [2016] NSWCCA 109
Van Den Hoek v The Queen (1986) 161 CLR 158; [1986] HCA 76
Ziha v R [2013] NSWCCA 27

Texts Cited:

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 Rogers v R

Details

AGLC: Rogers v R [2021] NSWCCA 61
Case: [2021] NSWCCA 61
Decision Date: 09 April 2021

CaseChat Overview and Summary

The appeal was brought by the Applicant, who was convicted of the murder of his wife. The Applicant had suffocated his wife and the case was heard in the New South Wales Court of Criminal Appeal. The central issue before the court was whether the partial defence of extreme provocation, as outlined in section 23 of the Crimes Act 1900 (NSW), should have been left to the jury despite not being raised during the trial. The court considered whether the failure to do so constituted a miscarriage of justice, warranting a departure from the usual practice of requiring the defence to be raised during trial.

The court examined the proper construction and operation of section 23, assessing whether the partial defence of extreme provocation should have been considered by the jury. The court concluded that the defence was not raised on the evidence presented during the trial and therefore, the partial defence of extreme provocation was not available to the Applicant. The court found that the Applicant had not established that a miscarriage of justice had occurred, and thus, the conviction was upheld. The court denied leave to appeal against the conviction under Rule 4 of the Criminal Appeal Rules.

Consequently, the court refused the Applicant's leave to appeal against his conviction. The court determined that the failure to raise the partial defence of extreme provocation during the trial did not result in a miscarriage of justice. The appeal was dismissed, and the conviction for murder remained intact.

Orders