Rogers v R

Case [2021] NSWCCA 61


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:

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

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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