R v McDonald

1. [1]

   HIS HONOUR: Andrew McDonald is currently on trial before me sitting in Port Macquarie with a jury of twelve, charged with having murdered his brother at Taree on 21 January 2017. Mr McDonald pleaded guilty to manslaughter when arraigned before the jury. The Crown refused to accept that plea in full discharge of the single count on the indictment. The Crown case closed just before lunch on the third day of the trial.

2. [2]

   Mr McDonald has now made an application that the partial defence of extreme provocation should be left to the jury. That application is opposed by the Crown. The circumstances in which the issue arises can only be understood in the light of the events that give rise to the charge.

Background

1. [3]

   Mr McDonald is an almost 59 year old man of Aboriginal descent. He is charged with having murdered his younger brother Edward McDonald by stabbing him once in the left side of his chest with a bone handled carving knife. The deceased died almost immediately following the stabbing from blood loss caused by damage to his significant venous and arterial vessels.

2. [4]

   At the time of the incident causing death, Mr McDonald and the deceased had been living in adjoining apartments in Hooke Street, Taree. Although the evidence was not all one way, it is sufficient for present purposes to accept that the deceased lived in one of the apartments with his then partner Ruth Knight. Mr McDonald lived alone next door.

3. [5]

   For reasons that are as yet only obliquely revealed in the evidence, Mr McDonald and his brother would appear to have had some kind of falling out that germinated at a birthday party of another man some year or so before. This animosity had not subsided by the time Mr McDonald came to live in Hooke Street. It intensified in the following circumstances.

4. [6]

   Mr McDonald told police when interviewed the day following the death of the deceased that his brother and Ms Knight were constantly and persistently very noisy. They regularly abused him and treated him in a disrespectful manner. The precise evidence that is said to fit these descriptions is at the heart of the Crown’s opposition to the present application and is referred to later in these reasons. It would seem that at about 9.30 pm on the evening in question, Mr McDonald became so annoyed or distressed at the commotion coming from his brother’s apartment, including the sliding door of the bathroom having been slammed, that he took the knife from his kitchen and went next door. He entered the front room, where the deceased was seated on a lounge with at least one other man. Mr McDonald walked up to his brother, and while he was still seated, swung the knife in his right hand into the left side of his brother’s chest. Mr McDonald then left the premises, crossed the street to where his neighbour Peter Burke resided, and asked him to call the police.

5. [7]

   Mr McDonald contends that the behaviour of his brother amounted to provocation for the purposes of s 23 of the Crimes Act 1900. He says that he lost his self-control by reason of the things that were done and said by his brother on the night in question, and in the weeks leading up to the offence, and that his brother’s actions constituted a serious indictable offence contrary to s 13(1) of the Crimes (Domestic and Personal) Violence Act 2007.

Relevant statutory provisions

1. [8]

   Section 23 of the Crimes Act provides as follows:

2. [9]

   Section 13 of the Crimes (Domestic and Personal Violence) Act is in these terms:

3. [10]

   Section 7 of the same Act should be noted:

4. [11]

   For present purposes, the issues that arise for consideration on this application, having regard to these provisions, are as follows:

   1. (1)

      Did Mr McDonald stab his brother in response to his brother’s conduct towards or affecting him?

   2. (2)

      Was the conduct of Mr McDonald’s brother a serious indictable offence?

   3. (3)

      Did the conduct of Mr McDonald’s brother cause him to lose self-control?

   4. (4)

      Could the conduct of Mr McDonald’s brother have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on him?

5. [12]

   My consideration of these questions is of course merely preliminary, in the sense that I must consider only whether there is at least some evidence that is capable of providing an affirmative answer to each question in the context of this application. My conclusions are not to be taken as determinative of what may in due course become questions for the jury to decide. These questions are considered later in these reasons.

The evidence

1. [13]

   The evidence that is relevant to the present application is to be found in two principal locations. The first is the transcript of evidence given by Ruth Knight and Edward Wilkinson. The following extracts from their cross-examination should be noted.

2. [14]

   Ms Knight’s evidence was as follows:

3. [15]

   Mr Wilkinson’s evidence was in the following relevant terms:

4. [16]

   The second source of relevant material is to be found in exhibit F, which is Mr McDonald’s electronically recorded interview with the police. This interview took place in the early hours of the morning following the death of the deceased. It included the following questions and answers:

5. [17]

   Evidence was also given by Peter Burke, a neighbour who lived in a house opposite in Hooke Street, Taree. He gave evidence of a history of hearing what appeared to be domestic disputes emanating from the apartment occupied by Ms Knight and the deceased. Without referring to that evidence in detail, it seems to me to be of such a general character that it does not assist Mr McDonald in the present application.

The first question

1. [18]

   Mr McDonald submitted that the evidence supported his contention that he stabbed his brother in response to his brother’s conduct towards or affecting him. The Crown’s response was that the evidence in this trial does not yet go that far, and that the only conduct to which Mr McDonald’s actions were possibly a response was conduct of Ms Knight.

2. [19]

   It has to be accepted that the evidence of conduct by the deceased, as opposed to the conduct of Ms Knight, is not overwhelming. There clearly remains scope for the giving of evidence that would more strongly support the nature and extent of the involvement of the deceased in committing or performing conduct towards Mr McDonald that is said to be intimidating. It is unnecessary to comment upon the obvious forensic equation that is concerned with resolution of that issue.

3. [20]

   However, it is a mistake to conflate the strength of evidence with the existence of evidence. What a jury will or might make of the conduct of the deceased in this context remains to be seen. The question for me to determine is merely whether the conduct concerned was the conduct of the deceased. In my opinion the evidence supports a conclusion that some at least of the conduct was the conduct of the deceased. It is not for me to comment upon what the jury will or might make of that evidence in the event that they are required to consider the partial defence of provocation.

The second question

1. [21]

   By definition, intimidation means conduct amounting to harassment or molestation of the person. The two essential elements of the offence would appear to be whether the conduct in question satisfies one or more of the sub-paragraphs of the definition of “intimidation” and whether it was done with the requisite intent. I was referred to the following cases concerning these questions.

2. [22]

   In Viavattene v R [2018] NSWCCA 197, the applicant sought to be released from custody pursuant to s 49 of the Bail Act 2013 pending the hearing of his appeal to the District Court against convictions entered in the Local Court. Those convictions included offences of stalking or intimidation with intent to cause fear of physical or mental harm contrary to s 13(1) of the Crimes (Domestic and Personal) Violence Act. By reason of the nature of the proceedings in the Court of Criminal Appeal, it was not necessary for that Court to make a final or binding determination of whether or not the applicant’s appeal would succeed, or more particularly, whether his conduct satisfied the definition of intimidation in s 7 of the Act. As the Court said at [4]:

3. [23]

   However, the Court set out in some detail a summary of the prosecution case. It is instructive to note the following paragraphs of the reasons for judgment in that Court:

4. [24]

   It is perhaps reasonably uncontroversial to observe that the conduct of the applicant in that case was arguably within the definition of intimidation on the one hand and at least inferentially, if not in fact quite obviously, intended to cause a fear of physical or mental harm on the other hand.

5. [25]

   In Veness v Hodge [2015] NSWCA 20, the Court of Appeal considered an application for judicial review under s 69 of the Supreme Court Act 1970 of orders made in the District Court on appeal by Ms Veness to that court from orders made by the Local Court under the Crimes (Domestic and Personal) Violence Act. On 6 December 2013 McCosker LCM sitting in Port Macquarie made an apprehended personal violence order under that Act against Ms Veness. The conduct that founded that order arose out of a long-running dispute between Ms Veness and a woman known as Ms Hodge. The factual background was described in some detail as follows:

6. [26]

   The Court of Appeal also referred in some detail to the decision of his Honour Ellis DCJ when considering Ms Veness’ appeal to the District Court:

7. [27]

   At [57], Emmett JA came to the following conclusion, with which the other members of the Court agreed:

8. [28]

   In what I concede is my somewhat circuitous approach, it is apparent from the extensive extracts from that case that the Court of Appeal proceeded upon the basis that the appellant’s conduct was capable of amounting to intimidation within the meaning of s 7 of the Act. It was, with respect, conduct that was both harassment or molestation and intended to cause fear of at least mental harm.

9. [29]

   Finally, in the context of a trial in which Mr Turnbull was charged with murder, the question arose as to whether he could raise the defence of extreme provocation. His Honour Johnson J dealt with this in R v Turnbull (No 5) [2016] NSWSC 439. His Honour observed at [11] as follows:

10. [30]

    In that case, Mr Turnbull shot and killed Mr Turner, who was a Compliance and Regulation Officer for the Office of Environment and Heritage, Department of Premier and Cabinet. His role involved investigating illegal land clearing and prosecuting individuals for breaches of s 12 of the Native Vegetation Act 2003. Mr Turner was killed in the course of performing his duties in that capacity.

11. [31]

    Mr Turnbull sought to argue that the partial defence of extreme provocation was available to him because Mr Turner’s conduct and actions towards him amounted to intimidation within the meaning of s 7 of the Act. Helpfully for present purposes, Johnson J cited portions of the Second Reading speech delivered by the Attorney General on 8 May 2014 with respect to the then proposed amendments to the Crimes Act dealing with provocation. His Honour’s reasons contained the following:

12. [32]

    Johnson J then expressed the following conclusions with respect to s 23(2)(b) of the Act:

13. [33]

    It is apparent from his Honour’s remarks that Mr Turner’s conduct could possibly have amounted to intimidation within the meaning of the definition, but could not in the circumstances of that case amount to a serious indictable offence having regard to the official capacity in which Mr Turner was exercising his duties and functions.

14. [34]

    In my opinion, accepting my conclusion that the conduct in question can be attributed at least in part to the deceased, as opposed to being attributable solely to Ms Knight, I consider that it is quite clearly capable of amounting to intimidation. There are a number of reasons for this. First, harassment covers a wide range of behaviours of an offensive nature. It is commonly understood as behaviour that demeans, humiliates or embarrasses a person. Its synonyms include persecution, harrying, pestering, badgering, intimidation, bother, annoyance, aggravation, irritation, pressure, coercion and molestation. The evidence suggests that this is precisely the type of conduct of which Mr McDonald complained to the police during his recorded interview.

15. [35]

    Secondly, the conduct in question does not necessarily have to be associated with violence or the threat of violence. Conduct of the type described by Mr McDonald could clearly amount to conduct capable of causing mental harm.

16. [36]

    Thirdly, it might reasonably be inferred that the type of verbal abuse and actions such as slamming doors to create a noisy disturbance that have been described were committed or performed with the necessary intention by the deceased of causing at least mental harm to Mr McDonald. The threshold is in my view quite low.

17. [37]

    It is instructive and important to note that “serious indictable offence” is defined by reference to the penalty imposed for an offence, not by reference to discrete subjective judicial assessments of the seriousness of the events that constitute the commission of a particular offence. It follows, therefore, that what might be described as an offence of limited objective seriousness can nevertheless qualify as a serious indictable offence for the purposes of s 23 of the Crimes Act.

18. [38]

    The legislative reference to serious indictable offence was undoubtedly formulated with a broad range of serious criminal conduct in mind. The fact that it captured offences against s 13 of the Crimes (Domestic and Personal Violence) Act may seem on one view to be curious. However, that apparent curiosity is easily explained when regard is had to the wide and frightening range of conduct that is regularly captured within the terms of the provision. The fact that the conduct of which Mr McDonald complains is possibly at the lower end of the spectrum is entirely beside the point. It is clearly capable of constituting a serious indictable offence.

The third question

1. [39]

   In my opinion, the conduct of the deceased did cause Mr McDonald to lose his self-control. He said as much in his interview with the police. There is unremarkably no evidence to the contrary.

The fourth question

1. [40]

   It seems to me that the answer to this question raises a significantly different consideration to the previous three questions. So much is clear from the wording and structure of the four paragraphs of s 23(2) of the Act. Paragraphs (a), (b) and (c) deal with matters that must be found by me on this application as what might be described as gateway or threshold facts. Was the act of the accused in response to conduct of the deceased? Was the conduct of the deceased a serious indictable offence? Did the conduct of the deceased cause the accused to lose self-control? An affirmative finding on each separate issue is a precondition to the issue of extreme provocation being left to the jury.

2. [41]

   By way of important contrast, paragraph (d) only calls for a determination of the question of whether the conduct of the deceased could have caused an ordinary person to lose self-control to the relevant extent. The question merely raises assessment of a possibility. It is potentially the most significant question for the jury if the partial defence is ultimately left to them. However, for the purposes of the present application, Mr McDonald would appear to bear an onus no higher than the establishment of the possibility, as opposed to the fact, that the conduct of the deceased could have caused an ordinary person to lose self-control to the requisite extent. It is sufficient for my purposes to indicate my opinion that it could.

Discernment

1. [42]

   Although not specifically referred by counsel to these cases, I have taken note of the following passages from decisions of the High Court decided two decades apart.

2. [43]

   The first is Masciantonio v The Queen (1995) 183 CLR 58; [1995] HCA 67 at [30]:

3. [44]

   The second is Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16 where it was said:

4. [45]

   In my opinion, the partial defence of extreme provocation is available as an issue that should be left for consideration by the jury.