R v Hooker (No 2) – extreme provocation ruling

1. [1]

   HIS HONOUR: Samantha Hooker is on trial in relation to the murder of her former partner, Peter Hooker. An issue has arisen as to whether she is entitled to rely on the partial defence of extreme provocation. In the event that there is sufficient evidence of extreme provocation to go to the jury, it will then be open to the jury, depending upon their assessment of the evidence, to find the accused not guilty of murder, but guilty of manslaughter on this basis.

2. [2]

   The trial commenced before me and a jury on 2 March 2026. The evidence closed yesterday afternoon, that being Thursday of week two. Overnight, between the Wednesday and the Thursday, the accused advised the Crown that the accused would not be called to give evidence. The Crown had previously indicated, both to the accused and to the Court, that in the event that the accused did not give evidence it was the Crown’s position that the evidence would be insufficient to raise the partial defence and it should, therefore, not be left to the jury.

3. [3]

   Argument on the issue took place during a hiatus in the evidence on Thursday morning. Counsel are due to address the jury on Monday. It is obviously necessary to resolve the question without delay.

4. [4]

   The accused and the deceased were in a relationship for some 18 years. They had separated some time before the relevant event on 8 August 2023. On that day the accused drove her vehicle at the deceased, striking him and occasioning to him significant injury which ultimately led to his death. There is no issue as to the accused having, by her voluntary act, caused the death of the deceased, that act having been committed with an intention to inflict at least grievous bodily harm.

5. [5]

   By way of background, the accused and the deceased had separated some time prior to 8 August 2023, but had remained living under one roof. The deceased formally moved out in November 2022, but subsequent to this time he would still, on occasions, stay at the family home.

6. [6]

   There is evidence of a violent episode on 26 June 2023 which resulted in the police being called. The deceased was charged with an assault on the accused. An apprehended violence order was taken out, the terms of which prevented the deceased being at the home. Nonetheless, subsequent to 26 June it seems there were various occasions when the deceased was at the home, including occasions when he slept there, albeit on the lounge and not in the room occupied by the accused.

7. [7]

   Section 23 of the Crimes Act 1900 (NSW) provides:

8. [8]

   It is necessary for the accused, in order to rely on the partial defence, to establish that there is evidence capable of satisfying a jury of each of the matters in s 23(2): 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.

9. [9]

   The accused’s evidentiary onus can be satisfied by evidence led in the Crown case. The proper approach was discussed 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]:

The Issue

1. [10]

   As I have said, central to the determination is the question of evidence capable of satisfying each of the matters in s 23(2). Each of paragraphs (a) through to (d) refer to “conduct” of the deceased. The conduct referred to in each paragraph must necessarily be the same conduct. On the hearing of the argument it was made plain by the prosecution that it was not in dispute that there is evidence capable of establishing paragraphs (c) and (d). That is, that there is evidence of at least some conduct of the deceased that caused the accused to lose self-control and there was evidence of some conduct of the deceased that could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on the deceased.

2. [11]

   It was submitted on behalf of the Crown, however, that there is no evidence to satisfy paragraphs (a) and (b). The issue is, was the act of the accused in driving the motor vehicle at the deceased a response to conduct of the defendant “towards or affecting the accused” for the purposes of paragraph (a), and which amounted to a serious indictable offence for the purposes of paragraph (b)? The words “towards or affecting the accused” in paragraph (a) are of some significance based on the authority of R v Quartly (1986) 11 NSWLR 332, binding on me, making clear that the conduct must take place in the presence of the accused.

3. [12]

   A serious indictable offence, as referred to in s 23(2)(b) 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”.

4. [13]

   Section 3 of the Criminal Procedure Act 1986 (NSW) defines “indictable offence” to mean “an offence (including a common law offence) that may be prosecuted on indictment.”

5. [14]

   The serious indictable offence relied on by the accused is an offence of intimidation contrary to s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). Section 13 of that Act creates the offence of intimidation and provides that it is punishable by a maximum penalty of imprisonment for five years. While the offence can be dealt with summarily, it can also 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.

6. [15]

   Section 13 of the Crimes (Domestic and Personal Violence) Act provides:

7. [16]

   “Intimidation” is defined in s 7 as follows:

8. [17]

   The accused submits that there is evidence to establish the commission of the offence by the deceased. Significantly, the accused relies on the offence being constituted by an ongoing course of conduct up to and including 8 August 2023, which had persisted for some time, albeit no commencement date was indicated in argument. There is a significant body of evidence which, if accepted, could make out the charge. It is not necessary to refer to that evidence in detail. Some salient aspects of it include the offence with which the deceased was charged on 26 June 2023. There is evidence that on that date the deceased was drunk, abusive and attempted to strike the accused. He was prevented from doing so due to the intervention of the accused’s son. When outside the premises he threw a bin. As I have said, police were called and he was charged.

9. [18]

   There is also evidence that the deceased forced the accused to do things of a sexual nature. There is conflicting evidence as to this. For present purposes, however, that conflict can be put to one side. It is enough for the accused to be able to point to evidence which could be accepted by the jury. There is evidence that on 23 July 2023 the deceased engaged in an act of sexual intercourse without consent against the accused.

10. [19]

    Further, there is a large body of text messages continuing up to 8 August 2023. In this regard, the accused relies on the elements of the offence and the breadth of the definition of “intimidation” in s 7, which includes conduct amounting to harassment or molestation. Such conduct is sufficient to make out the offence so long as it, for the purposes of s 13, was done with an intention to cause the accused physical or mental harm.

11. [20]

    It might be noted that various acts relied on going to the offence of intimidation are themselves serious indictable offences; in some instances more serious than the offence of intimidation. That does not prevent them from being relied on for the offence of intimidation.

12. [21]

    The matters to which I have referred going to the offence of intimidation amount to a serious indictable offence and were “towards or affecting” the accused in the relevant sense. I will refer to that conduct as “category A” conduct.

13. [22]

    Apart from the category A conduct, there is significant evidence of other strains on the relationship between the accused and the deceased at the relevant time. There was infidelity, significant financial issues, including as to the deceased’s contribution, or lack of it, in the context of a household which included four of the accused’s five children. There was evidence of the accused’s knowledge of the deceased’s supply of prohibited drugs to their son who was 16 years old at the time. Those are all matters which either do not amount to a serious indictable offence or do not constitute a serious indictable offence towards or affecting the accused. I will refer to that conduct as “category B” conduct.

14. [23]

    The prosecution submits that the evidence is not capable of establishing that the act of the accused was in response to the category A conduct when it could have been in response to the category B conduct.

15. [24]

    An attempt to separate out the various factors contributing to what motivated the accused to drive her vehicle at the deceased in a case such as this is fraught. There were obviously a variety of hurts occasioned by the deceased to the accused which informed the accused’s feelings towards him at the time. In those circumstances, it would not be possible to find that the conduct of the accused was not contributed to by the deceased’s conduct in category B. Indeed, I would accept that each of the Category B matters likely affected the accused and the drug supply was a particular and acute concern at the time. But that does not mean the conduct can be established as not in response to the category A conduct.

16. [25]

    The availability of an inference that the conduct was in response to the category B conduct of the deceased, even an inference that it was wholly in response to the category B conduct, does not exclude the availability of an inference that it was in response to the category A conduct of the deceased. That would be a question of competing inferences which is a matter for the jury.

17. [26]

    A further difficulty for the Crown’s argument is perhaps the more obvious one, and that is the conduct of the accused may have been in response to both the category A conduct and the category B conduct. Indeed, it would be a rare case where an accused would be able to point to the serious indictable offence relied on as being the sole cause of the response said to have been the result of extreme provocation.

18. [27]

    Before leaving the issue, it should also be noted that whilst, as I have said, the drug supply was a significant and acute issue for the accused, it also appears the alleged sexual assault on 23 July 2023 had some prominence. That matter was clearly, through the text messages sent, a matter of real and perhaps obvious concern to the accused. It was one of the first matters referred to by the accused in her record of interview conducted the day after the relevant event.

19. [28]

    Whether the act of the accused was in response to the category A conduct of the deceased or, more correctly, whether it can be excluded as having been a response to the category A conduct of the deceased, will be a matter for the jury. That determination will necessarily be affected by their view of the scope of the category A conduct, a matter which is in dispute. It is, however, at least open to find that the conduct of the accused was in response to the category A conduct. Accordingly, I rule that the partial defence of extreme provocation should be left to the jury.