R v Songcuan (No. 3)

1. [1]

   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.

2. [2]

   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).

3. [3]

   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.

4. [4]

   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 operation of a law (such as s 23 of the Crimes Act) in relation to “evidence proposed to be adduced … the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings”.

5. [5]

   A bundle of material was tendered by the Crown, comprising a Crown Case Statement, transcripts of two electronically recorded interviews between the police and the accused dated 2 May 2020 and 15 June 2020 respectively, four statements of the accused’s daughter Catherine Songcuan dated 2 May 2020, 5 May 2020, 6 May 2020 and 18 May 2020 respectively, and photographs taken by the Crime Scene Officer Paul John Weldon at the accused’s house on 2 May 2020. The defence tendered a Cellebrite Report containing SMS messages sent by the accused to Catherine Songcuan’s phone number.

6. [6]

   While that evidence is not precisely the evidence that is “proposed to be adduced”, there was no suggestion on the part of the Crown that I should not accede to the request for a ruling. Any such ruling is necessarily predicated on the assumption the evidence at trial will be the same, or at least to the same effect, as the evidence led on this application. Certainly, the most significant evidence, what the accused said in his record of interviews, will not change. The Crown Case Statement can be taken as an overview of the evidence expected to be led. On this basis, I consider it appropriate that I rule on the issue.

Background

1. [7]

   It is necessary to set out a brief summary of the circumstances in order to determine this application. Most of what follows has been taken from the Crown Case Statement.

2. [8]

   The accused and the deceased married in 1976 in the Philippines and moved to Australia in 1979. He is charged with murdering his wife by strangling her in the garage of their home.

3. [9]

   There had been ongoing relationship difficulties between the accused and the deceased. The deceased suspected that the accused was having an affair with another woman. The accused had always denied this. According to their daughter Catherine, the relationship between the accused and the deceased became increasingly unstable after their son, Edgar Songcuan, died from cancer in 1996. Their arguments became more frequent, and the accused and the deceased had previously discussed getting divorced.

4. [10]

   During the last four years, the verbal arguments occurred on an almost daily basis, and at times, had become physical. Only their daughter Catherine Songcuan, who resided with them, knew about the ongoing problems in their relationship.

5. [11]

   On the morning of 30 April 2020, Catherine woke at around 8.15am and could hear the deceased and accused arguing in the kitchen. When Catherine went into the kitchen, the deceased was yelling at the accused, “Show me your phone, show me the pictures.” They were speaking in Tagalog. The argument became physical with the deceased hitting the accused with her slippers and trying to get the accused’s phone. At one point the deceased had a kitchen knife in her hand. She was facing the accused and had her right arm out in front of her, lower than her shoulder, and the blade facing away from her at an angle. The distance between the accused and deceased was approximately one metre.

6. [12]

   The accused, in an interview with police, said he was in his bedroom in the morning of 2 May 2020 when the deceased entered his room and started an argument about his affair with another woman. He said that the deceased threw an object at him and also hit him with a remote control. The accused told police that he ran down to the garage, so that their daughter who was sleeping in the next room was not disturbed. The deceased then followed the accused to the garage and continued the argument.

7. [13]

   The accused told police that he placed his left arm around the deceased's neck and placed his right hand on her mouth and nose. The accused said that he strangled the deceased by tightly squeezing her neck with his left arm. The accused stated that he continued to strangle the deceased for 15-20 minutes until she had stopped breathing. He said that she had struggled. The accused stated that he then placed the deceased's body on the floor and covered it with cardboard. The accused said that he later placed a rope, that had been in the garage, around the deceased's neck in order to show that she had “strangled herself”.

8. [14]

   The accused contends that the behaviour of the deceased, in particular the history of physical assaults and verbal threats from the deceased towards him, and the deceased’s physical assault against him in his bedroom on the morning on 2 May 2020, amounted to extreme provocation for the purposes of s 23 of the Crimes Act. He submits that this behaviour caused him to lose self-control, and that the deceased’s actions, both historically and in the morning of the incident, constituted various serious indictable offences (most relevantly for present purposes, s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)).

9. [15]

   It is necessary to consider the relevant statutory provisions before turning to their application to the facts of this case.

Relevant statutory provisions

1. [16]

   Section 23 of the Crimes Act provides as follows:

2. [17]

   The serious indictable offence upon which the accused seeks to rely is the offence of intimidation with intent to cause fear of physical or mental harm contrary to s 13 of the Crimes (Domestic and Personal Violence) Act, which provides as follows:

3. [18]

   “Serious indictable offence” is defined in s 4 of the Crimes Act as being “an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more”. Section 3 of the Criminal Procedure Act defines “indictable offence” to mean “an offence (including a common law offence) that may be prosecuted on indictment”. Section 13 of the Crimes (Domestic and Personal Violence) Act is punishable by a maximum penalty of imprisonment for 5 years. While it can be dealt with summarily, it can be dealt with on indictment if the prosecutor so elects: Criminal Procedure Act, s 260(2); Sch 1 Table 2 cl 2. It therefore constitutes a serious indictable offence.

4. [19]

   Section 7 of the same Act provides the meaning of “intimidation”:

5. [20]

   The accused has an evidentiary onus of raising the issue of provocation on the material before the Court: Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14 at [32]; Lake Macquarie City Council v Morris (2005) 63 NSWLR 263; [2005] NSWSC 387 at [44] citing Johnson v The Queen (1976) 136 CLR 619; [1976] HCA 44.

6. [21]

   The evidentiary onus and the standard required to discharge it was the subject of scrutiny in Rogers v R (2021) 104 NSWLR 305; [2021] NSWCCA 61. Johnson J, with whom N Adams and Ierace JJ agreed, stated (at [143]-[147]):

Issues for consideration

1. [22]

   Having regard to s 23 of the Crimes Act, the issues that arise for consideration on this application are as follows:

   1. (1)

      Were the acts of the accused causing death in response to conduct of the deceased towards or affecting the accused?

   2. (2)

      Was the conduct of the deceased a serious indictable offence?

   3. (3)

      Did the conduct of the deceased cause the accused to lose self-control?

   4. (4)

      Could the conduct of the deceased 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?

2. [23]

   The conduct referred to in each of these elements must be the same conduct: Rogers at [94]-[96].

The evidence

1. [24]

   The parties rely principally on the evidence contained in the transcript of an electronically recorded interview between the police and the accused dated 2 May 2020 and four statements of Catherine Songcuan dated 2 May 2020, 5 May 2020, 6 May 2020 and 18 May 2020. It is convenient to extract relevant sections from the transcript of the interview.

2. [25]

   The events of 2 May 2020 are discussed further below in the context of the relevant test. Before considering those events, however, it is relevant to have regard to events prior to that date. This is because, on the accused’s case, the events of 2 May can only be understood as the culmination of an ongoing series of events. In this context, the accused said:

3. [26]

   Q49 What could you tell us?

4. [27]

   A Yeah, uh, erf, it’s been years uh, she was, uh, taunting me, uh, tormenting me, uh, nagging me every day. And when she, sometimes she take the knife to threaten me, to kill me, because, uh, she, uh, suspecting that I have, uh, other woman. But in fact, uh, there is none. It be easy, some of her friends are, are feeding her, uh, wrong information. Until, uh, that, uh, it then, uh, poison her mind, so, yeah, every day, when people were saying, she was, uh, quarrelling with me. Uh, what, in, wherever it can get, she taunts at me. I even had to move last, uh, um, it protect me, when it get worse. But I didn't, uh, I did not fight back. Sometimes, well, when we are driving, she, with her, uh, slipper, with a smack on my face. I almost have an accident but I didn't fight back, because I love my wife. And she keeps on, uh, being like that.

5. [28]

   And later:

6. [29]

   The statements of Catherine Songcuan provide contextual evidence of the “rocky” relationship between the accused and the deceased. She also provides evidence of an argument between the accused and the deceased on 30 April 2020, where she observed the deceased facing the accused while holding a knife in her hand.

7. [30]

   Despite the above the accused at points claimed he still loved his wife. His text message to Catherine on 30 April 2020 asked “Will you please calm her down”, referring to her physical assaults on him and said “But I did not fight back coz I love her”.

8. [31]

   The parties, and the Crown in particular referred to some additional parts of the interview as being relevant to the issue of whether the accused lost self-control. These are as follows:

The first question – a response to conduct of the deceased?

1. [32]

   The Crown concedes there is evidence capable of supporting an affirmative answer to the first question. There is, clearly, reasonable evidence that the acts of the accused causing the death of the deceased were in response to the actions of the deceased, including the alleged physical assault against the accused on the morning of her death.

The second question – was the conduct a serious indictable offence?

1. [33]

   The defence submits that the conduct of the deceased constituted various serious indictable offences committed on the morning of the death, in the days before it and historically. These include:

   1. (1)

      Intimidation with intent to cause fear of physical or mental harm: Crimes (Domestic and Personal Violence) Act, s 13

   2. (2)

      Use or possess an offensive weapon or offensive instrument with intent to commit a serious indictable offence (intimidation): Crimes Act, s 33B

   3. (3)

      Damage property: Crimes Act, s 195

   4. (4)

      Damage property with intent to injure a person: Crimes Act, s 196

2. [34]

   The Crown concedes there is evidence that the conduct of the deceased constituted the offence of intimidation under the Crimes (Domestic and Personal Violence) Act.

3. [35]

   I am satisfied the conduct of the deceased reported by the accused could fall within the definition of “intimidation” in s 7 of the Crimes (Domestic and Personal Violence) Act and an inference is available the deceased had an intention of causing the accused to fear physical or mental harm (even if this was not her primary intention), as required by s 13.

The third question – did the conduct cause the accused to lose self-control?

1. [36]

   I turn then to the third question, that is, whether there is evidence on which it could be found that the conduct of the deceased caused the accused to lose self-control. As noted above there is evidence that the conduct of the accused leading to the act that resulted in death was in response to conduct of the deceased towards the accused, which could amount to a serious indictable offence. That the accused was responding to such conduct does not, however, necessarily mean that there is evidence of a loss of control by the accused. In R v Chhay (1994) 72 A Crim R 1, Gleeson CJ referred to the following passage from The Queen v R (1981) 28 SASR 321 at 325; (1981) 4 A Crim R 127 at 131 per King CJ:

2. [37]

   His Honour also referred to the following passage from R v Croft [1981] 1 NSWLR 126 at 140; (1981) 3 A Crim 307 at 320-321:

3. [38]

   “It is never sufficient that there simply be a history of violence and abusive conduct on the part of the deceased towards the accused person which leads to a sense of grievance, frustration, resentment, depression or the like, that the a day comes when the accused decides to get rid of this miserable state.”

4. [39]

   The conduct of the deceased and the emotions it stirred in the accused nonetheless remain relevant. Gleeson CJ observed in Chhay (at [14]):

5. [40]

   In the present case it is accepted that the accused is a man of prior good character. Given that he was 73 years old at the time he killed the deceased, it follows that he had exhibited that good character over a lengthy period. This is particularly so given that there is no evidence that he responded with violence on any prior occasion in the face of attacks or mistreatment by his wife. Indeed, the evidence is to the contrary, the accused asserting in his record of interview that he had not previously responded with force to the actions of the deceased. That does not mean that he did not lose control. As with the evidence of the mistreatment itself, the accused’s background cannot of itself establish that, given what he did, he must have lost control. The background together with the accused’s assertion, that he in fact loved his wife, does, however, provide a relevant context in which the determination must be made.

6. [41]

   It is not necessary that the accused directly assert that he or she lost control: see Van Den Hoek v The Queen (1986) 161 CLR 158 at 162. In the present case, the accused in his record of interview did not directly claim to have lost control but made a number of statements, upon which he relies, which are said to be capable of establishing that state of mind. The Crown submits that, to the extent that the accused relies upon such statements, they are equivocal. In that circumstance, the Crown submits that they can only be understood having regard to the entirety of the interview. In that regard, there are other statements in the interview, inconsistent with the accused having lost self-control. Some parts of significance in this regard have been set out above.

7. [42]

   I must, of course, take the evidence in favour of the defence at its highest. I accept that in the case of, at least some, equivocal statements it may be that they can only be properly understood in the context of the entirety of the interview. On the other hand, it is also possible that the accused simply made inconsistent statements in his record of interview. Two things should be observed. Firstly, the interview took place commencing at 4:34pm, the accused having killed his wife that morning. Having regard to the circumstances, and particularly the accused’s age and lack of prior record, it is likely that the accused himself was still coming to terms with what he had done, and attempting to understand it. I would, in this context, caution myself against placing too much weight on apparent inconsistencies. Secondly, there is some evidence that English is not the accused’s preferred language. As noted above, the accused’s arguments with his wife tended to occur in Tagalog. It appears the accused has lived and worked in this country for many years, and indeed worked in a professional capacity as an accountant. There is no suggestion he required an interpreter in the interview. It, nonetheless, appears from that interview that his command of English is not that of a native speaker. While only the transcript and not the recording itself was tendered on the application, I was informed by the accused’s counsel, without demur from the Crown, that a lack of fluency is more apparent on viewing the video.

8. [43]

   In line with the above, I have considered the entirety of what the accused said in his records of interview. Inevitably, some parts, for the purposes of this application, have greater significance. The interview itself commenced with a number of introductory questions. A short way into the interview, the accused was informed that the interviewing police were investigating the deceased’s death and asked (at Q49) “what could you tell us”. The accused entered upon a somewhat discursive response (in a passage set out above at [25]), beginning by indicating that for “years” the deceased had been “taunting me, uh, tormenting me, uh, nagging me every day … sometimes she take the knife to threaten me, to kill me, because, uh, she, uh, suspecting that I have, uh, other woman”. He continued, referring to ongoing abuse and stating “seems that I don’t have my freedom”. He referred to moving into a separate room because “I am afraid that, uh, she might kill me, because she’s keeping knives in all of our room”. He then said:

9. [44]

   It can be seen that there is a degree of ambiguity within this answer. On the one hand, there is suggestion of having “no choice” but to “silence” the deceased, in order to obtain a degree of peace and freedom, which is suggestive of a degree of calculation. On the other hand, the statement “I’m not like that … I cannot, hurt other people but I’m really fed up, I cannot really stand it any more” suggests a response based on an inability to maintain control. Perhaps most importantly, the accused then gave the analogy of the dog being cornered. The analogy, relying on an animal with reactions, at least in the context of an attack, that are generally regarded as more instinctive than calculated, does suggest an instinctive reaction on the part of the accused, and therefore a loss of control.

10. [45]

    At a later point in the interview, the accused was taken to the point where the deceased was lying on the ground and was asked “what happened then” (Q148). The accused responded:

11. [46]

    The reference to the accused “composing” himself could be supportive of a transition from a lack of composure. Alternatively, it could be no more than a reference to a need to deliberate on a plan. Certainly, insofar as this answer would suggest there was no pre-existing plan to kill the deceased and dispose of her body, it is not inconsistent with a loss of self-control. It is difficult however, to regard the response as going much further.

12. [47]

    Later again in the interview, the accused was reminded that he had said that he had had enough and had no choice but to silence her. The following exchange then took place (Q&A 306-308):

13. [48]

    This exchange is of some significance. As can be seen, the accused in this response, refers to the deceased “trying to go for” his patience. I take this to be a suggestion that his patience was being tested. He immediately went on to say “my mind just …” before being cut off. When asked what would happen to her as a result of his actions, it is telling that instead of responding that she would die, the accused said “just to stop her shouting, to stop her screaming”. This is suggestive of his response being very much in the moment. The next statement “I think I … over acted” is on its own equivocal. While it is followed by reference to a “decision” (“I decided”), an inference is, nonetheless, available that the accused responded in the moment to a desire to stop the continuing conduct of the deceased, accepting in the interview, that killing her was an overreaction.

14. [49]

    The accused’s later responses (such as that at A314) were to the effect that, while he knew what the outcome would be, it was “I think I, this better this way, instead of, uh, living in hell”. While on the one hand, this suggests deliberate choice, on the other it suggests lack of rationality that could arguably support the lack of any “decision” in the controlled sense with which we are presently concerned. In any event, it is not for the accused, at this stage at least, to deal with all of the evidence. Rather it is sufficient that there is evidence on which it would be capable to find a loss of self-control (even if there is other evidence to the contrary).

15. [50]

    I am mindful, that implicit in the availability of a verdict of manslaughter on the basis of extreme provocation is that a loss of self-control is not inconsistent with a willed and voluntary act done with an intention to kill or inflict really serious injury. Extreme provocation operates in the notional space between a willed and voluntary act executed without self-control and a willed and voluntary act executed in the presence of self-control. In the present matter, having regard to the various statements of the accused together with the broader context referred to above, I am of the view that there is, at least some evidence, that the accused acted within this space. That is, I am satisfied there is some evidence the conduct of the deceased caused the accused to lose self-control.

The fourth question – the objective, ordinary person test

1. [51]

   I turn then to the question of whether there is 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. As observed above, the test at this stage is a purely objective one. That said, it must also be remembered that the ordinary person in this context is not necessarily a reasonable person: Stingel v The Queen (1990) 171 CLR 312 at 328; [1990] HCA 61. Further, the test is whether the ordinary person “could” have lost control to the requisite extent connoting a possibility rather than a probability of such a reaction: Heron v The Queen (2003) 140 A Crim R 317; [2003] HCA 17; Green v The Queen (1997) 191 CLR 334 at 340; [1997] HCA 50. That qualification, and the continued existence of the partial defence, in effect allows that an ordinary person may, in certain circumstances, act in a manner that is seriously criminal.

2. [52]

   It is also worthy of note at the outset, that s 23(2)(d) requires that the conduct could have caused the loss of self-control “to the extent of intending to kill or inflict grievous bodily harm on the deceased”. On a literal reading this test is satisfied where the conduct could have caused an ordinary person to lose self-control to the extent of intending to inflict grievous bodily harm, even though the person in fact acted with an intention to kill. Militating against that literal reading is that, on that reading, the words “intending to kill” would be redundant. This would tend to suggest that in a case where a person acted with an intention to kill, the conduct relied upon as extreme provocation would need to be such that could have caused an ordinary person to lose self-control to the extent he or she formed an intention to kill.

3. [53]

   Further complicating matters, is that while there are admissions in the present matter that could be relied upon to support an intention to kill, the presence of such an intention is not conceded. Indeed, the accused’s notice of defence case puts in issue both an intention to kill and any intention to inflict grievous bodily harm. This would suggest that I should proceed on the literal reading of the words of the provision.

4. [54]

   The question of construction posed above, is answered by what the High Court said in Green. While that decision concerns the earlier form of s 23, it remains relevant to the present provision. In particular, while changes were made to the objective limb of the test, the current form of s 23 uses very similar words, in requiring that the conduct of the deceased could have induced an ordinary person “to lose control to the extent of intending to “kill or inflict grievous bodily harm” as the earlier form of the provision (“… to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased”. The omission of the words “in the position of the accused” while significant with respect to the characteristics of the accused (see Rogers at [40]-[104]), do not affect the present issue. In construing the requirement with respect to the formation of an intention to kill or inflict grievous bodily harm, all members of the High Court held that, this is not to be read as requiring the provocation to be such as could have induced the accused to act as he or she did. Rather it is sufficient if the provocation could have induced the ordinary person to form an intention to kill or inflict grievous bodily harm: see Green at 339-340, 342 per Brennan CJ, 357-358 per Toohey J, 372-374 per McHugh J, 378 per Gummow J and 398 per Kirby J (at least implicitly). While Gummow and Kirby JJ were in dissent in the result, this does not affect their agreement with the principle discussed here.

5. [55]

   In the present case, there is no suggestion of any idiosyncrasies, or matters peculiar to the accused, that might make him sensitive to the provocation: cf Rogers. That does not of itself establish that the accused is “an ordinary person” and that his reaction therefore establishes that an ordinary person could respond to the provocation with an intention to kill or inflict grievous bodily harm. The Crown conceded in argument that what is known of the accused’s character is nonetheless relevant.

6. [56]

   In determining the question raised by this element, I must take into account the entirety of the deceased’s conduct said to amount to provocation. In this case, therefore, I do not artificially confine myself to the events of the morning of 2 May 2020. Rather, I must have regard to evidence suggesting ongoing abuse over a number of years including the threat with the knife on 30 April 2020, and other physical assaults.

7. [57]

   The question of whether this element is satisfied is one of “evaluative fact”: Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16, French CJ, Kiefel, Bell and Keane JJ at [16], referring to Glanville Williams’ classification. It is not an easy determination given that it involves, as noted above, an ordinary person acting in a seriously criminal way.

8. [58]

   Having regard to all of the circumstances of the present case, I am ultimately, satisfied that the pattern of abuse over a period in the order of four years including attacks with objects could have led an ordinary person who had previously shown restraint in response to such conduct, to lose self-control to the extent of forming an intention to kill or inflict grievous bodily harm on the deceased.

Conclusion

1. [59]

   Having regard to the above, I am of the view that, on the evidence tendered on this application, there is reasonable evidence of each of the four elements of extreme provocation. It follows that, in the event that such evidence is admitted on the trial, I am of the view that the partial defence of extreme provocation should be left to the jury.