R v Rogers (No 7)

1. [1]

   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.

2. [2]

   On the first day of the trial, 6 May 2019, the accused pleaded not guilty to murder but guilty to manslaughter.

3. [3]

   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.

4. [4]

   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.

5. [5]

   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.

6. [6]

   The written direction (marked MFI 6) states:

7. [7]

   The oral direction given was as follows [T112.27 – T115]:

8. [8]

   In his closing address the Crown prosecutor raised four issues that it said illustrated why the jury should reject any suggestion in respect of the “fifth element”, that is the jury’s determination as to whether, in its opinion, the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. They were [T581-582]:

9. [9]

   In his closing address, defence counsel Mr Pontello addressed the fifth element of the partial defence [T608.05-11] as follows:

10. [10]

    The Crown’s argument as elaborated upon in its written submissions was that the only question for the jury on the fifth element is to determine whether the accused has satisfied the jury in the circumstances of the case that any impairment to his capacity to control himself (if the jury finds that it is likely to have existed) was so substantial (emphasis added) that he should not be condemned or blamed as a murderer, and that rather, he should be treated as guilty of manslaughter.

11. [11]

    The Crown prosecutor argued that this question restricts itself only to those factors which are relevant to the level of impairment. To include factors claiming to be “extenuating” and that “reduce the gravity of what he has done”, has nothing to do with the degree of impairment and therefore reference to those factors is unwarranted and contrary to the law.

12. [12]

    The Crown prosecutor argued that only reasons 1, 2 and 7 outlined in the defence case have relevance to the jury’s assessment of that matter, given the evidence in the case and that although 3, 4, 5 and 6 may be relevant to whether the accused lost control, they do not have any part to play in the assessment of whether the impairment was so substantial at the relevant time.

13. [13]

    The Crown prosecutor conceded that reason 8 regarding character could, on the face of it, be relevant to the issue of good character shedding light on the substantial impairment issue. It was further proposed by the Crown that at the least, this consideration needs to be explained in the summing up or clarified at some level that the context in which character is relevant is limited to whether the past good character sheds light on the issue of whether the accused was so substantially impaired that there should be reduction from murder to manslaughter.

14. [14]

    The Crown prosecutor also submitted that reason 9 regarding remorse as evidenced in gaol calls after the event cannot have any role to play in the assessment and should be withdrawn.

15. [15]

    The Crown prosecutor submitted that regardless of what clarifications should occur in the summing up, the following extract from the bench book that had not yet been included in the oral direction provided should be given to the jury to clarify the jury’s task on element 5:

16. [16]

    Mr Pontello submitted that the circumstances identified in factors 2, 3, 4, 5 and 6 are directly concerned with the nature of the killing and these are very important matters for the jury to take into account when considering whether it is satisfied on balance as to the fifth element, that is, whether it should reduce murder to manslaughter.

17. [17]

    Mr Pontello relied upon R v Ignjatic (1993) 68 A Crim R 333 at 346 which was referred to with approval recently in the case of Quinn v R [2018] NSWCCA 297 at [50]. Mr Pontello argued that the Chief Judge at Common Law in Quinn summarised the relevant principles on the substantial impairment defence and explained that it is critical for the jury, as highlighted by the direction that it was proposed should be given in the summing up, that the determination by the jury as to whether the accused was so impaired, sits side by side with the question of the requirement for them to consider whether it should reduce the blameworthiness of the accused from murder to manslaughter. Mr Pontello argued that this involves a value judgement by the jury representing the community. It is not limited to a finding of a medically based fact as to the level of impairment suffered by the accused.

18. [18]

    Mr Pontello conceded that there was no need for there to be a repeated reference to “extenuating circumstances” in the summing up but those nine factors are directed to the jury’s required analysis and the determination that it must make when considering whether it should find the accused guilty of manslaughter rather than murder.

19. [19]

    Mr Pontello argued that the fact that the death of the deceased was carried out in the way it was, in the context of a heated physical altercation, that it was spontaneous and unplanned, that it was not prolonged, sustained, vicious, humiliating or degrading, and used a readily available item of soft bedding, are all factors that tell against planning and cruelty and tell towards impulsivity and are factors that must be weighed by the jury in assessing element 5.

Decision

1. [20]

   The community values and application of broad common sense required by element 5 to be exercised by the jury is an evaluative judgment. It seems to me that circumstances 3, 4, 5, 6 and 9 identified by Mr Pontello in his closing submissions are be relevant to that judgment. The community would be disinclined to consider as less blameworthy a murder where for example there was a vicious, ongoing brutal, degrading and planned attack over, for example, half an hour, as opposed to something spontaneous, using something immediately available.

2. [21]

   It seems to me that element 5 entails a requirement to reflect community approbation and concern including the circumstances of the offending as part of the evaluation required of the jury in respect of that aspect of the substantial impairment defence.

3. [22]

   The Crown maintained its position that the nature of the killing itself has no role to play at all in the consideration of the fifth element unless it has some direct relevance to the impairment of the accused’s capacity to control himself, such as identified element 2 - the highly charged emotional situation, however it seems to me that relevant to the evaluation the jury needs to make is a submission that it is open on the evidence to conclude that a relatively quick, spontaneous, unplanned series of physical acts led to the death and that there is no evidence that they occurred over any prolonged time and did not involve extraneous steps such as leaving the house or getting a weapon and that this would, on any analysis, be considered to be less blameworthy than a planned execution style killing.

4. [23]

   If there was planning or weapon seeking, this would also suggest that the accused was not so impaired that he was not able to organise himself to carry out an attack over a long time, or that he had sufficient self control to leave the premises and obtain a weapon and return to complete the act.

5. [24]

   The nine factors by Mr Pontello seem to me to be aspects of the evidence open to highlight to the jury on the “value judgment” entailed in the “broad, common sense approach”, applying the “standards of the community” set out in the part of the bench book direction which I will give as a part of my summing up.

6. [25]

   I reject the Crown’s submission that the focus of element 5 of the defence, is confined to the level of impairment only.

Ruling

1. [26]

   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.