Rogers v R

1. [1]

   JOHNSON J: By Notice of Appeal filed 30 March 2020, the Appellant, Warren Francis Rogers, seeks to challenge his conviction by a jury, on 26 May 2019, following a trial in the Supreme Court for the murder of his wife, Anne Louise Rogers.

2. [2]

   On 21 November 2019, the trial Judge, Lonergan J, sentenced the Appellant to a term of imprisonment for 18 years comprising a non-parole period of 12 years commencing on 14 September 2016 and expiring on 13 September 2028 with a balance of term of six years commencing on 14 September 2028 and expiring on 13 September 2034: R v Rogers (No. 9) [2019] NSWSC 1622.

The Ground of Appeal

1. [3]

   The Appellant relies upon a single ground of appeal which asserts that a miscarriage of justice resulted from the failure to leave to the jury the partial defence of extreme provocation under s.23 Crimes Act 1900 (NSW).

2. [4]

   There is no appeal with respect to sentence.

3. [5]

   As will be seen, no application was made to the trial Judge for the partial defence of extreme provocation to be left to the jury at the trial of the Appellant. Accordingly, a question arises as to whether he should have leave to rely upon the ground of appeal pursuant to Rule 4 Criminal Appeal Rules (NSW).

The 2018 and 2019 Trials of the Appellant

1. [6]

   The Appellant was charged with the murder of his wife at their home at Links Avenue, Milperra on the night of 12 September 2016. He went to trial in the Supreme Court before Lonergan J and a jury in July 2018, pleading not guilty to murder but guilty to manslaughter. That plea was not accepted by the Crown. The trial proceeded, but the jury was unable to reach a verdict and was discharged.

2. [7]

   A second trial proceeded before Lonergan J and a jury in May 2019 (“the 2019 trial”) and the Appellant entered the same plea, which again was not accepted by the Crown. At this trial, the jury returned a verdict of guilty of murder.

3. [8]

   The Appellant was represented at both trials by the same very experienced trial counsel. The defence case at trial relied upon the partial defence of substantial impairment by abnormality of mind under s.23A Crimes Act 1900 (NSW). The Appellant did not give evidence at either trial. Psychiatric evidence was adduced in support of the partial defence of substantial impairment by abnormality of mind.

4. [9]

   There was no reference at either trial of the Appellant to the partial defence of extreme provocation under s.23 Crimes Act 1900 (NSW).

Overview of the 2019 Trial of the Appellant

1. [10]

   What follows in this part of the judgment (unless indicated otherwise) is drawn from the Crown submissions and represents an accurate summary which was not contested in this Court.

2. [11]

   The Appellant and the deceased were married for some 40 years. The Appellant was born in September 1947 and was nearly 69 years old at the time of his wife’s death on the evening of 12 September 2016. The deceased was born in December 1954 and was 61 years old at the time of her death.

3. [12]

   During the marriage, the Appellant experienced a number of health concerns including a diagnosis of prostate cancer in 2005. There was evidence that a vulnerability to depression was a possible side effect of the Appellant’s medical treatment.

4. [13]

   Around 11 July 2016, the Appellant discovered that his wife had formed a relationship with Jeff Langham, a man with whom she had attended school, and who was then living in Tasmania.

5. [14]

   The relationship between the deceased and Mr Langham was described at trial as a loving friendship and a “deep connection” which was not sexual. Upon finding correspondence between the deceased and Mr Langham, the Appellant told his wife to leave the family home and the two separated for nearly a month. The evidence was that the Appellant was upset and depressed at this time.

6. [15]

   In his closing address to the jury, counsel for the Appellant described the discovery of the deceased’s relationship with Mr Langham as having “a catastrophic effect upon … [the Appellant’s] already fragile mental state” (T590).

7. [16]

   On 18 July 2016, the Appellant consulted Dr Yuk Lan Liew, the family’s general practitioner, and reported experiencing insomnia, stress and anger. At a further consultation with Dr Liew on 22 July 2016, the Appellant requested a mental health care plan to see a psychologist for counselling. The Appellant completed an assessment tool and the result showed “mixed depression and anxiety giving a score of 34 which is considered as moderately severe” (Dr Liew, T250). On the Appellant’s mental health care plan, Dr Liew described the main concerns as “mixed anxiety and depression plus adjustment issues relating to relationship breakdown causing insomnia, has a lot of mistrust and underlying anger” (Dr Liew, T253).

8. [17]

   At the end of July 2016, the Appellant and his wife sought to reconcile and the deceased promised not to contact Mr Langham again (J Bertoldo, T146-147). The Appellant and his wife commenced counselling sessions with Dr Elizabeth Shaw, a clinical psychologist, and it appeared to Dr Shaw that the Appellant was genuinely trying to work on his marriage including by better managing his anger and changing “the pattern of domination and control” (Dr Shaw, T296-297, T301, T307). Dr Shaw stated that the Appellant “acknowledged that he was a dominating personality” (T296).

9. [18]

   Nonetheless, the relationship remained tense. There was evidence (on which the Appellant relied in seeking to establish substantial impairment by abnormality of mind) that the Appellant’s daughter had been concerned about the Appellant’s “mental state for weeks” prior to the offence and, in early August 2016, the deceased attempted suicide (C McCormack, T184; E Macintosh, T220; Dr Liew, T258).

10. [19]

    The sentencing remarks of Lonergan J summarised events in August-September 2016 in the following way (R v Rogers (No. 9) at [24]-[27]):

11. [20]

    During the night of 12 September 2016, the Appellant killed his wife. Afterwards, the Appellant attempted to commit suicide. The medical evidence was that the Appellant would have died of his self-inflicted injuries without medical intervention (Dr Paul Lambrakis, T284). The Appellant left a suicide note (Exhibit C at the trial).

12. [21]

    The sentencing Judge made the following findings concerning the offence (R v Rogers (No. 9) at [28]-[36]):

13. [22]

    Her Honour referred to the Appellant’s suicide attempt after killing his wife (R v Rogers (No. 9) at [37]-[42]):

14. [23]

    As noted earlier, the Appellant did not give evidence at the trial. There was evidence, however, of what the Appellant had told two forensic psychiatrists and other persons about the incident in which he killed his wife. Dr Adam Martin, psychiatrist, examined the Appellant on behalf of the Crown and gave evidence in the Crown case. Dr Stephen Allnutt, psychiatrist, examined the Appellant and gave evidence in the defence case at trial.

15. [24]

    Reference will be made later in the judgment to parts of the evidence to which the Court was taken in support of the appeal.

16. [25]

    The Appellant accepted at trial that he smothered the deceased and caused her death (T35 – defence opening address). The Crown accepted that there was evidence to establish that the Appellant had an abnormality of mind at the time of the offence (T576 – Crown closing address; SU[57]).

17. [26]

    The issues in dispute at trial were whether the Appellant's capacity to control himself was substantially impaired at that time and whether that impairment was so substantial as to warrant his liability for murder being reduced to manslaughter. In this regard, for the purpose of s.23A(1)(a) Crimes Act 1900 (NSW), the Appellant relied on an impairment of self-control rather than an impairment of his understanding of events or judgment as to whether his actions were right or wrong (T385).

18. [27]

    The Crown case was that, notwithstanding his abnormality of mind, the Appellant killed the deceased "in anger [with] a purposeful act done with a clear and comprehending intention to kill" (T27 – Crown opening address; T561 – Crown closing address).

19. [28]

    The Crown relied on the evidence of Dr Martin, who interviewed the Appellant on 10 August 2017. Dr Martin was of the view that the Appellant likely suffered from a diagnosable psychiatric condition in the form of a chronic adjustment disorder (T367, T368-374, T376). However, Dr Martin considered that there was insufficient evidence to establish that the Appellant was substantially impaired by that condition or that the Appellant relevantly lost the capacity to control his behaviour (T358-359, T366). Generally, however, Dr Martin accepted that a depressed person is "more likely to be irritable and overact or to perceive slights or insults where none is meant, or to perhaps act more impulsively" (T367, T369).

20. [29]

    The Appellant relied on the evidence of Dr Allnutt, who assessed the Appellant on 10 November 2016 and diagnosed the Appellant with a major depressive disorder (T477, T484-485). In relation to the Appellant's capacity to control himself, Dr Allnutt said (T487):

21. [30]

    In cross-examination by the Crown, Dr Allnutt said (T508):

22. [31]

    The Appellant relied, as well, on the evidence of a neuropsychologist, Dr Ilana Hepner, that his cognitive functioning was impaired or borderline impaired in some respects (T545).

23. [32]

    Further reference will be made to aspects of the evidence at the 2019 trial when addressing the arguments advanced in this Court.

24. [33]

    On 8 May 2019, the third day of the trial, the jury requested clarification concerning the difference between murder and manslaughter (T110; MFI4). Lonergan J provided the jury with written directions as to the elements of murder and the partial defence of substantial impairment (T114; MFI5 and MFI6).

25. [34]

    When addressing orally the elements of the partial defence that the Appellant had an abnormality of mind and that the abnormality of mind arose from an underlying condition, Lonergan J said, "patently the partial defence is not speaking of normal human states of mind or emotion such as rage, jealousy and so forth" (T114). Substantially the same oral direction was given again on 17 May 2019 in response to a further jury note asking about the legal definition of substantial impairment (T515; MFI22).

26. [35]

    In her summing up, Lonergan J instructed the jury that, if they were satisfied beyond reasonable doubt that the elements of murder were established, they would need to consider the partial defence of substantial impairment (SU[40]). Her Honour then said (SU[54]-[57]):

27. [36]

    The jury rejected the partial defence of substantial impairment by abnormality of mind and convicted the Appellant of murder.

28. [37]

    Against that background, it is appropriate to turn to the issues raised in this Court in support of the ground of appeal.

Section 23 Crimes Act 1900 (NSW)

1. [38]

   Since 2014, s.23 Crimes Act 1900 (NSW) provides:

2. [39]

   Section 23(2)(b) requires the allegedly provocative “conduct” of the deceased to have been a “serious indictable offence”. The term “serious indictable offence” is defined in s.4 Crimes Act 1900 (NSW) as being “an indictable offence that is punishable by imprisonment for life or for a term of five years or more”.

The Partial Defence of Extreme Provocation in s.23 Crimes Act 1900 (NSW)

1. [40]

   Section 23 was enacted in its present form by the Crimes Amendment (Provocation) Act 2014 (NSW) (“the 2014 amending Act”).

2. [41]

   Before 2014, s.23 provided:

3. [42]

   The partial defence of provocation, whereby the crime of murder may be reduced to manslaughter, has attracted criticism. Over the past 20 years, review and reform of the partial defence of provocation has led to its abolition in several Australian jurisdictions: Criminal Code Amendment (Abolition of Defence of Provocation) Act 2003 (Tas); s.3 Crimes (Homicide) Act 2005 (Vic); s.8 Criminal Law Amendment (Homicide Act 2008) (WA).

4. [43]

   The partial defence of provocation has been restricted in other States and Territories, including Queensland: s.304 Criminal Code (Qld); Peniamina v The Queen (2020) 95 ALJR 85; [2020] HCA 47.

5. [44]

   South Australia has recently abolished the common law defence of provocation. The Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Act 2020 (SA) commenced on 27 January 2021 (with select provisions commencing on 29 March 2021: ss.7, 10, 11, 12 and Schedule 1) and abolished the common law defence of provocation.

6. [45]

   The New South Wales model, as enacted in 2014, differs from the statutory formula adopted in other Australian jurisdictions. The New South Wales concept of “extreme provocation” has been criticised: Kate Fitz-Gibbon, “Homicide Law Reform in New South Wales: Examining the Merits of the Partial Defence of ‘Extreme’ Provocation” (2017) 40 Melbourne University Law Review 769.

Background to the 2014 Reform

1. [46]

   In 2012, a Select Committee on the Partial Defence of Provocation was established by the New South Wales Legislative Council. The Report of that Select Committee was tabled in Parliament in April 2013. The impetus for the establishment of the Select Committee was the trial of Charmajot Singh, who was found not guilty of the murder of his wife, but guilty of manslaughter by way of provocation: R v Singh [2012] NSWSC 637.

2. [47]

   In the second reading speech for the 2014 amending Act, the Attorney General, Mr Hazzard, explained this background (Hansard, Legislative Assembly, 8 May 2014, pages 28500-28501):

3. [48]

   In its 2013 Report, the Select Committee recommended retention of a restricted form of partial defence of “gross provocation”. In the second reading speech, the Attorney General explained the reasoning behind the “extreme provocation” model introduced by the 2014 amending Act:

The 2014 Second Reading Speech as an Aid to Construction

1. [49]

   The Court was referred to the second reading speech for the 2014 amending Act of the then Attorney General, Mr Hazzard, delivered in the Legislative Assembly on 8 May 2014. A proper basis exists for considering the second reading speech and this will also assist the Court to understand the purpose or object underlying the new s.23: ss.33-34 Interpretation Act 1987 (NSW); The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 93 ALJR 1106; [2019] HCA 35 at [32]-[37], [163]-[165].

2. [50]

   In the second reading speech, the Attorney General observed that the 2014 amendments constituted the Government’s response to the Report of the Select Committee, which had “unanimously recommended retaining, but significantly restricting, the partial defence”.

3. [51]

   The Attorney General described s.23(2) Crimes Act 1900 (NSW) as “setting out a four staged test”.

4. [52]

   With respect to the first stage in s.23(2)(a), the Attorney General said:

5. [53]

   The Attorney General then referred to the second stage in s.23(2)(b) (emphasis added):

6. [54]

   With respect to the third stage in s.23(2)(c), the Attorney General said (emphasis added):

7. [55]

   The Attorney General turned to the fourth stage in s.23(2)(d) (emphasis added):

8. [56]

   A little later, the Attorney General said:

9. [57]

   The Attorney General observed that the Bill was “intended to deliver a limited and targeted partial defence”.

10. [58]

    In concluding the second reading speech, the Attorney General said (emphasis added):

11. [59]

    It may be seen from the second reading speech that the intention of the 2014 amending Act was to narrow significantly the partial defence of provocation.

12. [60]

    Although not excluded expressly by s.23(3), it is clear that conduct of the type which occurred in R v Singh was not intended to constitute extreme provocation (see [53], [55] above).

13. [61]

    What has been described as “intimate partner homicide motivated by relationship separation or infidelity” is not caught by s.23(2). Conduct of that type was intended to be excluded from the 2014 amending Act and it is not capable (on its own) of falling within the requirement in s.23(2)(b) that the provocative conduct was a serious indictable offence: Kate Fitz-Gibbon, “Homicide Law Reform in New South Wales: Examining the Merits of the Partial Defence of ‘Extreme’ Provocation” at 787-788.

Experience With the Partial Defence of Extreme Provocation Since 2014

1. [62]

   Trial Judges have declined to leave the partial defence of extreme provocation to juries in a number of cases: R v Turnbull (No. 5) [2016] NSWSC 439 (leave to appeal under s.5F Criminal Appeal Act 1912 (NSW) refused on jurisdictional grounds: Turnbull v R [2016] NSWCCA 109); R v Turnbull (No. 25) [2016] NSWSC 831; R v Bentley; R v Davies; R v Thomas; R v Tilley [2019] NSWSC 283.

2. [63]

   The partial defence of extreme provocation has been left to juries: R v Cliff (No. 5) [2018] NSWSC 166 (the accused person was convicted of murder: R v Cliff (No. 6) [2018] NSWSC 587); R v McDonald [2019] NSWSC 839 (the accused person was found not guilty of murder, but guilty of manslaughter by unlawful and dangerous act: R v McDonald [2019] NSWSC 858).

3. [64]

   To date, this Court has not been called upon to consider the substance of the partial defence of extreme provocation.

Submissions for the Appellant

1. [65]

   Put shortly, Mr Odgers SC, counsel for the Appellant, submitted that the Court should grant leave under Rule 4 to rely upon the ground of appeal in circumstances where the Appellant had demonstrated that a miscarriage of justice had resulted in this case from the failure to leave the partial defence of extreme provocation to the jury.

2. [66]

   He submitted that the partial defence was open in this case and that the Appellant lost a real chance of a verdict of not guilty of murder but guilty of manslaughter, because it was not left to the jury.

3. [67]

   It was submitted that there was evidence at the trial which was capable of satisfying the requirement of s.23(7) Crimes Act 1900 (NSW). In this respect, Mr Odgers SC referred to aspects of the evidence (referred to in greater detail at [105]-[125]), including a number of statements attributed to the Appellant and parts of the evidence of Dr Allnutt and Dr Martin, as well as some evidence of bruising to the legs of the deceased which was said to be consistent with her having kicked the Appellant.

4. [68]

   To the extent that there may be any inconsistencies between the accounts given by the Appellant, Mr Odgers SC submitted that these were matters for the jury and that, for present purposes, the evidence should be taken at its highest for the purpose of determining whether the partial defence of extreme provocation should have been left to the jury: Stingel v The Queen (1990) 171 CLR 312 at 334; [1990] HCA 61; Masciantonio v The Queen (1995) 183 CLR 58 at 67; [1995] HCA 67.

5. [69]

   Mr Odgers SC noted that in the defence closing address to the jury at the trial, it was submitted that there was ample evidence from which the jury could conclude on balance that when the Appellant suffocated his wife, he had in fact lost control during the course of a heated physical struggle with his wife on the bed (T596). Later in the defence closing address, counsel said “You can lose control doing an act and immediately know what you did during the loss of control” (T601) and various matters were referred to by trial counsel as “consistent with a genuine loss of control” (T604).

6. [70]

   Mr Odgers SC submitted that it was clearly established that the Appellant first became aware in July 2016 that his wife had been having an affair. He had not been violent at the time, but told her to leave the family home (T145, T167, T178, T248-249, T418-419 and T464). It was submitted that discovery that the Appellant’s wife had been having an affair had not led him to lose control at that time.

7. [71]

   Senior counsel for the Appellant submitted that it was apparent that, after killing his wife, the Appellant made a genuine attempt to commit suicide (T81-84, T277-279 and T284) and that this conduct was at least consistent with a loss of control when he killed his wife and then a demonstration of remorse over what he had done.

8. [72]

   Mr Odgers SC submitted that there was considerable evidence of the Appellant’s good character and absence of any history of violence which, he submitted, supported an inference that his conduct was spontaneous and resulted from a loss of control.

9. [73]

   Senior counsel for the Appellant relied upon passages in Masciantonio v The Queen at 67-68, 70 and Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16 at [16], [38]-[39] in support of the submission that the partial defence should have been left to the jury in this case. He submitted that Judges should exercise “restraint” and “caution” before determining not to leave the partial defence to a jury: Lindsay v The Queen at [38]-[39].

10. [74]

    It was submitted that there was evidence with respect to each of the ingredients of the partial defence contained in s.23(2)(a), (b), (c) and (d) Crimes Act 1900 (NSW).

11. [75]

    Concerning the requirement that the conduct of the deceased was a serious indictable offence under s.23(2)(b), it was submitted that there was evidence of an assault occasioning actual bodily harm by the deceased against the Appellant given the bruising referred to so that the threshold for such an offence was met: McIntyre v R (2009) 198 A Crim R 549; [2009] NSWCCA 305 at [44]; R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130 at [62].

12. [76]

    Mr Odgers SC submitted that the “ordinary person” is not a “reasonable person”: Stingel v The Queen at 328. He submitted that the statutory partial defence is, like the common law partial defence, a concession to human frailty reducing murder to manslaughter rather than a complete defence.

13. [77]

    It was submitted for the Appellant that, even if trial counsel for an accused person did not seek to rely upon the partial defence, there was an obligation on the trial Judge to leave the partial defence of extreme provocation, as there was evidence to support it: Lindsay v The Queen at [27].

Submissions for the Crown

1. [78]

   The Crown noted that the partial defence of extreme provocation was not raised at the Appellant’s trial nor addressed by the Appellant in the case presented on his behalf.

2. [79]

   It was observed that the question now posed by the Appellant’s ground of appeal is – notwithstanding that the issue was not raised or addressed at trial, whether, on the version of events most favourable to the Appellant suggested by the material in the evidence, the jury acting reasonably might have failed to be satisfied beyond reasonable doubt that the killing of the deceased was unprovoked in the relevant sense: s.23(7) Crimes Act 1900 (NSW); Stingel v The Queen at 318, 334; Masciantonio v The Queen at 67-68; Lindsay v The Queen at [26].

3. [80]

   The Crown submitted that, speaking generally, if extreme provocation was raised on the evidence (that is, if there was “any evidence” (s.23(7)) to make out the elements in s.23(2)), the partial defence should be left for the jury’s consideration, including in circumstances where an accused person does not put extreme provocation in issue and/or does not give direct evidence as to the elements of the partial defence: Van Den Hoek v The Queen (1986) 161 CLR 158 at 161-162; [1986] HCA 76; Ziha v R [2013] NSWCCA 27 at [37]-[38].

4. [81]

   The Crown submitted that there was a threshold question of law as to whether extreme provocation was, in fact, raised on the evidence in this trial: Lindsay v The Queen at [16]. That threshold remains important because the task of a trial Judge (and an appellate court) in this respect is to “[fix] the boundaries of the minimum powers of self-control that must be observed before it is open to the jury to find that murder is reduced to manslaughter by reason of provocation”: Lindsay v The Queen at [26].

5. [82]

   The Crown submitted that there is a practical difference between the approach of a trial Judge and that of an appellate court – a trial Judge is reluctant to withdraw from a jury any issue that should properly be left to them and is therefore likely to tilt the balance in favour or the defence whilst “an appellate court must apply the test with as much exactitude as the circumstances permit”: Moffa v The Queen (1977) 138 CLR 601 at 617; [1977] HCA 14; Masciantonio v The Queen at 67-68.

6. [83]

   The Crown submitted that it is not the duty of a trial Judge to “invite the jury to speculate as to provocative incidents” where there is insufficient evidence to support a partial defence on that basis: Mancini v Director of Public Prosecutions [1942] AC 1 at 12.

7. [84]

   The Crown made submissions with respect to the proper construction of s.23(2) Crimes Act 1900 (NSW) (see [92]-[104] below). Mr Odgers SC did not take issue with the Crown’s summary of principles in this respect (T7, 29 July 2020). The live issue before this Court was whether the partial defence of extreme provocation was raised on the evidence.

8. [85]

   The Crown submitted that, even assuming that there was evidence at trial sufficient to raise the matters in s.23(2)(a), (b) and (c), the act of the Appellant in smothering his wife was not done in response to extreme provocation because s.23(2)(d) could have no relevant operation. It was submitted that, properly viewed, a jury acting reasonably could not have failed to be satisfied beyond reasonable doubt that the relevant conduct of the deceased was not such as to satisfy the element in s.23(2)(d) Crimes Act 1900 (NSW).

9. [86]

   The Crown emphasised that the test in s.23(2)(d) is purely objective. It was submitted that the formation of an intention to kill or inflict grievous bodily harm on the deceased, in response to the allegedly provocative conduct, fell far below the minimum limits of the range of powers of self-control which must be attributed to an ordinary person, so that the requirement in s.23(2)(d) was not met in this case.

10. [87]

    The Crown made a series of submissions which culminated with the proposition that the evidence at the trial did not raise the partial defence under s.23 Crimes Act 1900 (NSW) so that there was no necessity for the trial Judge to leave it to the jury.

11. [88]

    Although the Crown submitted that the Appellant failed on the merits in this Court because the evidence did not raise the partial defence, it was submitted, in any event, that the Appellant encountered a difficulty with Rule 4, in particular where the failure to raise the issue at trial was rationally explicable as a tactical decision. It was submitted that the raising of the partial defence of extreme provocation (involving the question of the response of an ordinary person) might well have detracted from the Appellant’s case at trial which sought to attribute his reaction to an abnormality of mind in support of the partial defence of substantial impairment.

12. [89]

    The Crown submitted that the capacity to appeal to this Court against conviction does not exist to enable an accused person who has been convicted on one set of issues to have a new trial, under a new set of issues, which could or should have been raised at the first trial: ARS v R [2011] NSWCCA 266 at [148].

13. [90]

    If, contrary to the Crown’s submission, the Court concluded that there was evidence at trial so that the partial defence of extreme provocation should have been left to the jury, the Crown acknowledged that it would be open to the Court to grant leave under Rule 4 and, in those circumstances, the Crown would not seek to rely upon the proviso in s.6(1) Criminal Appeal Act 1912 (NSW) and would instead seek an order for a new trial under s.8(1) of that Act.

14. [91]

    However, the Crown submitted that the Appellant had failed on the merits of the appeal itself so that the appeal ought be dismissed.

The Proper Construction of s.23 Crimes Act 1900 (NSW)

1. [92]

   As noted earlier (at [74]), the Crown made a number of submissions concerning the proper construction of s.23(2) and senior counsel for the Appellant did not take issue with these submissions.

2. [93]

   I accept the Crown submissions on these issues. The following propositions are to be applied in determining this appeal.

3. [94]

   Firstly, it is the same “conduct” of the deceased that is relevant for the purposes of each subsection in s.23(2). This construction is confirmed by the use of the definite article “the” in each of s.23(2)(b), (c) and (d) – “the conduct of the deceased …”.

4. [95]

   Accordingly, the conduct of the deceased to which the accused person responded (s.23(2)(a)), and which caused the accused person to lose self-control (s.23(2)(c)), and which was capable of causing an ordinary person to lose self-control (s.23(2)(d)) must be conduct that constituted a serious indictable offence (s.23(2)(b)).

5. [96]

   Support for this construction can be drawn from statements by the Attorney General in the second reading speech which emphasised that, for the provision to apply, the accused person must be provoked by serious conduct on the part of the deceased (see [53] above).

6. [97]

   Secondly, it is necessary to have regard to the impact of the 2014 amending Act on the objective element of the partial defence now contained in s.23(2)(d).

7. [98]

   The form of s.23 prior to the 2014 amending Act appears earlier in this judgment (at [41]). Section 23(2) Crimes Act 1900 (NSW) provided (emphasis added):

8. [99]

   The omission of the words “in the position of the accused" from the current form of s.23(2)(d) is of particular significance. The role of those words in the former s.23(2)(b) had been described by Brennan CJ in Green v The Queen (1997) 191 CLR 334 at 339-340; [1997] HCA 50 as follows (emphasis added):

9. [100]

   In Green v The Queen, McHugh J said at 368-369 (emphasis added):

10. [101]

    As noted earlier (at [55]), in the second reading speech for the 2014 amending Act, the Attorney General explained the rationale for the deliberate omission of the words “in the position of the accused” from s.23(2)(d).

11. [102]

    I accept the Crown submission that the assessment required by the current form of s.23(2)(d) does not involve an assumption that the ordinary person is provoked by the deceased’s conduct to the same extent as the accused person, and it is not relevant that the accused person was especially sensitive to the conduct constituting the provocation or that, from the accused person’s perspective, there was some particular sting to the deceased’s conduct: R v Turnbull (No. 25) at [88]-[90].

12. [103]

    The element of the partial defence in s.23(2)(d) is, as the Attorney General stated in the second reading speech, purely objective (see [55] above). This represents a departure from the operation of the former s.23(2)(b) and the common law: cf Stingel v The Queen at 324, 326, 333; Masciantonio v The Queen at 66-67; Green v The Queen at 340, 369. It is apparent, however, that such a departure was the purpose of the 2014 amending Act.

13. [104]

    A consequence of this amendment, which departs significantly from the common law, is that the ordinary person test now contained in s.23(2)(d) assumes a calm ordinary person and that it is not relevant that the accused person was particularly sensitive to the situation or was experiencing a depressive disorder.

Evidence Relied Upon in Support of the Partial Defence of Extreme Provocation in this Case

1. [105]

   Having examined features of s.23 Crimes Act 1900 (NSW) as it has stood since significant changes to the law were made in 2014, it is appropriate to turn to the evidence relied upon by the Appellant as raising the partial defence of extreme provocation in this case.

2. [106]

   Mr Odgers SC pointed to the following parts of the evidence in support of the submission that there was evidence that the act causing death was done in response to extreme provocation for the purpose of s.23(2) Crimes Act 1900 (NSW).

3. [107]

   In the early hours of 14 September 2016, the Appellant said to Senior Constable Gary Stone “Tell them to give me a needle and let me go. I’ve had enough. My wife hit me this arvo and dislocated my shoulder” (T60-61) (emphasis added).

4. [108]

   Dr Lambrakis gave evidence that, on 14 September 2016, the Appellant complained of some pain in relation to his shoulder (T282) and an X-ray was done on his shoulders on 16 September 2016 which indicated no recent fracture or dislocation (T282-283).

5. [109]

   On 14 September 2016, the Appellant had a conversation with Mr Clinton Hoare, the Appellant’s son-in-law, at Liverpool Hospital which was recorded by the police. In that conversation, the Appellant said at one point (Exhibit F, page 11; T88) (emphasis added):

6. [110]

   Later in that conversation, Mr Hoare asked "Do you remember what you did to Anne?". The Appellant replied, “Oh yeah, yeah she just said I wanna die and I smothered her with a pillow" (Exhibit F, pages 16-17).

7. [111]

   Later in the same recorded conversation, the Appellant said to Mr Hoare (Exhibit F, page 21) (emphasis added):

8. [112]

   Later again in the same conversation, the Appellant said (Exhibit F, page 26, AB227):

9. [113]

   Later in the conversation, the Appellant said, “I just went berserk that night, you know” (Exhibit F, page 34; AB235).

10. [114]

    Also on 14 September 2016, the Appellant told police officers (in an interview) that he killed his wife by "smothering her with a pillow", but said that the deceased "asked [him] to kill her" (Exhibit E, page 5).

11. [115]

    In the course of a conversation with two police officers which was recorded on 15 September 2016, the Appellant said at one point “I couldn’t control meself” (Exhibit H, page 80; AB285).

12. [116]

    In a recorded telephone conversation with his son when the Appellant was in a correctional centre on 6 December 2016, the Appellant said at one point (Exhibit N, page 118, AB439) (emphasis added):

13. [117]

    In a further telephone conversation from prison recorded on 31 December 2016, the Appellant said to his son (Exhibit N, page 130; AB451) (emphasis added):

14. [118]

    The Appellant told medical staff that the deceased “hit" him and "dislocated [his] shoulder" (T61). X-rays taken of the Appellant's shoulders revealed no abnormalities and, specifically, no recent fractures or dislocations (T282-283).

15. [119]

    In a further recorded telephone call made from prison on 15 January 2017, the following was said by the Appellant (“WR”) and his son, Grant Rogers (“GR”) (Exhibit N, page 114, AB465) (emphasis added):

16. [120]

    Dr Elsie Burger, forensic pathologist, gave evidence of various injuries to the body of the deceased which were consistent with there having been a physical altercation (T324-327). Abrasions on the deceased's face were consistent with the deceased having tried to remove the pillow from her face (T327, T333). There was an injury to the deceased's head which, it was said, might be consistent with her having hit her head on the headboard of the bed (T328).

17. [121]

    There were also bruises on the front of the deceased’s lower legs. Dr Burger's evidence was that those bruises might have been caused by "the victim kicking up at the assailant" or by the deceased being held down (T325-326, T340). Dr Burger was asked about the length of time it would take to cause death by smothering. Dr Burger said that death will result if the brain is devoid of oxygen for four-to-six minutes (T333), but that an initial unconsciousness can occur after 30-120 seconds and, if a person does not regain consciousness, he or she may die (T334, T337, T339, T343-344).

18. [122]

    In cross-examination, Dr Burger was asked (T340) (emphasis added):

19. [123]

    Dr Burger stated that the deceased was 1.69 metres tall with a weight of 65 kilograms (T322). When sentencing the Appellant, Lonergan J observed that the Appellant “was clearly bigger and stronger than the deceased”: R v Rogers (No. 9) at [47].

20. [124]

    In evidence-in-chief, Dr Martin recounted the account provided by the Appellant on 10 August 2017 (T351-352) (emphasis added):

21. [125]

    Dr Allnutt gave evidence of his conversation with the Appellant on 10 November 2016 in which the Appellant said (T481) (emphasis added):

Operation of s.23 Crimes Act 1900 (NSW) in the Circumstances of this Case

1. [126]

   The principal focus of attention in this appeal is the construction and application of s.23(2)(d) Crimes Act 1900 (NSW).

2. [127]

   It remains necessary, however, to consider the other elements in s.23(2) as those elements constitute cumulative and necessary ingredients if the partial defence of extreme provocation was to be left to the jury at trial.

3. [128]

   Consideration of s.23(2)(b) requires identification of the conduct of the deceased and consideration whether that conduct constituted a serious indictable offence. As noted above, there was evidence based upon statements by the Appellant that the deceased kicked him during the struggle between them with a claim by the Appellant that damage was caused to one or more of his teeth and with his shoulder being dislocated.

4. [129]

   The medical evidence did not support the suggestion that the Appellant’s shoulder had been injured to that extent and there was no objective evidence in relation to damage to the Appellant’s teeth.

5. [130]

   The serious indictable offence, upon which the Appellant seeks to rely for the purpose of s.23(2)(b) Crimes Act 1900 (NSW), is the offence of assault occasioning actual bodily harm under s.59(1) Crimes Act 1900 (NSW) which states:

6. [131]

   The Crown submitted that the conduct of the deceased in kicking the Appellant would not constitute a serious indictable offence for the purpose of s.23(2)(b) if her conduct was in self-defence. The Appellant told Dr Martin and Dr Allnutt that the deceased had kicked him only after he had become angry and pushed her onto the bed and held her down although, as the Crown acknowledged, the Appellant asserted at one point that he may have let the deceased go by the time of the alleged kicks (see [119] above).

7. [132]

   However, the Crown acknowledged that the threshold for actual bodily harm is relatively low and that the version of events most favourable to the Appellant must be accepted for present purposes. The Crown accepted that it may be open to the Court to find that there was some evidence to establish the element of the partial defence in s.23(2)(b).

8. [133]

   In McIntyre v R, this Court described “actual bodily harm” at [44]:

9. [134]

   The Crown was correct to accept that there was some evidence before the jury at the Appellant’s trial that the conduct of the deceased was a serious indictable offence for the purpose of s.23(2)(b) Crimes Act 1900 (NSW). This conclusion is not based upon any acceptance of the Appellant’s account which, it should be noted, was not supported by medical evidence as to his claimed injuries. There is also an issue as to whether any kicks by the deceased which struck the Appellant occurred in self-defence as she struggled to resist his attack against her. However, the question is whether there is evidence upon which this issue may have been left to the jury for its determination. There was such evidence in this case.

10. [135]

    It is appropriate to consider the elements in s.23(2)(a) and (c) together. These cumulative elements require evidence that the act of the Appellant that caused death was in response to conduct of the deceased towards or affecting the Appellant and that the conduct of the deceased caused the Appellant to lose self-control.

11. [136]

    As the Crown observed, there is a real question as to whether the act causing death was in response to the deceased’s kicks and whether the kicks caused the Appellant to lose self-control. In his conversation with Mr Hoare whilst in hospital, the Appellant said, “I caught her out doin’ it again, I just blew up and then we got in a big argument, fight” (see [109] above). This statement suggested that it was the discovery of his wife’s correspondence with Mr Langham which caused the Appellant to lose self-control.

12. [137]

    The Appellant had used physical force or violence against his wife by pushing her onto the bed and holding her arms down prior to her kicking him (see [111] above). In other accounts, the Appellant claimed that he killed his wife at her request, because she was “real depressed” rather than in response to her kicking him (Exhibit E, page 5; Exhibit F, page 21).

13. [138]

    However, as the Crown pointed out, the Appellant stated in a further account “I just snapped when his wife kicked him in the head” (see [112] above). There was evidence from Dr Allnutt that the Appellant had diminished self-control at the time of the offence, although it is not clear that the trigger for that loss of self-control was the deceased’s kicking of the Appellant.

14. [139]

    Accordingly, there is contradictory evidence as to whether the acts of the Appellant causing death were in response to the deceased kicking him and whether any kicking by the deceased caused the Appellant to lose self-control. Once again, I note that this conclusion is not based upon any acceptance of the Appellant’s account.

15. [140]

    However, taking the version of events most favourable to the Appellant for present purposes, there was some evidence which, at a prima facie level, was capable of satisfying the elements in s.23(2)(a) and (c) Crimes Act 1900 (NSW).

16. [141]

    The fourth and final element is that contained in s.23(2)(d), that the conduct of the Appellant could have caused an ordinary person to lose self-control to the extent of intending to kill his wife or inflict grievous bodily harm upon her. This element is the critical and determining aspect on this appeal.

17. [142]

    Reference was made earlier in this judgment (at [97]-[104]) to the proper construction of s.23(2)(d) in light of the clear legislative intention to depart from the common law and the old s.23 in this respect. This provision tightened the test by requiring members of the jury to apply a purely objective test. The “ordinary person” was not to be taken to be “in the position of the accused” so that particular features of the accused person were not to be attributed to the ordinary person in applying the provision.

18. [143]

    As noted earlier, s.23(7) provides for the partial defence to be left to the jury if there is “any evidence” of the partial defence. As the Attorney General observed in the second reading speech (see [58] above), the former approach is to be retained in determining whether the s.23 partial defence should be left to the jury. In the same way, this Court should apply the approach set out in decisions of the High Court of Australia when considering a ground of appeal which contends that the partial defence should have been left to the jury.

19. [144]

    As will be seen, some difference in approach has been recognised with a trial Judge to adopt a more liberal approach when determining to leave the partial defence, and with the determination of the question by an appellate court involving “somewhat greater exactitude than the determination made by the trial Judge”: Lindsay v The Queen at [26].

20. [145]

    In this respect, Brennan, Deane, Dawson and Gaudron JJ said in Masciantonio v The Queen at 67-68 (emphasis added):

21. [146]

    In Lindsay v The Queen, French CJ, Kiefel, Bell and Keane JJ said at [16] (footnotes omitted and emphasis added):

22. [147]

    Later in Lindsay v The Queen, their Honours said at [24]-[26] (footnotes omitted and emphasis added):

23. [148]

    In Stingel v The Queen, the High Court concluded that a trial Judge had declined correctly to leave the defence of provocation to the jury in circumstances where the accused person, who was 19 years old and infatuated with a particular woman, had stabbed a man to death after finding the woman and the man engaged in sexual activity in a parked car and being told to “piss off”. The Court (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) said at 336-337 (emphasis added):

24. [149]

    Although the decision in Stingel v The Queen concerning the previous law of provocation and facts far removed from the present case, the approach adopted by the Court in determining whether the partial defence should have been left to the jury, by reference to the ordinary person test, remains of assistance.

25. [150]

    The test in s.23(2)(d) is purely objective. When applying that test, the ordinary person is not placed in the position of the accused (other than to the extent of having also been subject to the relevant conduct of the deceased). Accordingly, if it be the case, the fact that the Appellant lacked the powers of self-control of an ordinary person and was vulnerable to over react to emotional triggers is not relevant: Stingel v The Queen at 332; Masciantonio v The Queen at 72.

26. [151]

    The Appellant’s diagnosed depressive disorder is also irrelevant. Even prior to the 2014 amending Act, it was accepted that such a disorder should not be imputed to the hypothetical ordinary person: Ziha v R at [78].

27. [152]

    In addition, I accept the Crown submission that the Appellant’s declared love for his wife, his commitment to working on their marriage, his apparent frustration that his efforts in that regard were not being recognised and his dominant personality in the context of his relationship with his wife are personal characteristics of the Appellant which, if previously thought to be capable of increasing the “sting” of the alleged provocative conduct, are no longer relevant to the question of how an ordinary person might react to that conduct for the purposes of s.23(2)(d).

28. [153]

    As the Crown observed, the suggestion that the Appellant’s response to the conduct of his wife was relevantly equivalent to that of an ordinary person was contrary to much of the evidence at trial relating to the Appellant’s substantial impairment by abnormality of mind. The evidence was that the Appellant was prone to overreact, to respond aggressively and to lose self-control as a result of a pre-existing and relatively longstanding mental condition. This evidence was not suggestive of the kind of sudden and temporary loss of self-control that is central to the doctrine of provocation: R v Van Den Hoek at [168]; Masciantonio v The Queen at 79-80; Pollock v the Queen (2010) 242 CLR 233; [2010] HCA 35 at [48]-[51].

29. [154]

    In Ziha v R, this Court concluded that a jury, acting reasonably, could not have failed to be satisfied beyond reasonable doubt that an ordinary person in the position of the accused would not have been induced to kill a man who was in a relationship with his wife from whom the accused was separated. Macfarlan JA (Fullerton and Campbell JJ agreeing) observed (at [46]) that the accused had known of the relationship between the deceased and the accused’s estranged wife for a number of months and that “the formation of a serious intent to kill [the deceased] was quite beyond the range of possible conduct of an ordinary person in such circumstances”.

30. [155]

    In the present case, the relevant question is whether the jury, acting reasonably, could have failed to be satisfied beyond reasonable doubt that the conduct of the deceased in kicking the Appellant could not have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on the deceased.

31. [156]

    In my view, adapting the reasoning of the High Court in Stingel v The Queen at 336-337 (see [148] above), the formation of an intention to kill the deceased or inflict grievous bodily harm upon her, in response to her allegedly provocative conduct of kicking the Appellant, fell far below the minimum limits of the range of powers of self-control which must be attributed to an ordinary person. There was no evidence at trial capable of raising a reasonable doubt in this regard in the minds of the jury.

32. [157]

    I accept the Crown submission that, even if that conduct of the deceased is understood in the context of an argument and physical altercation following the Appellant’s discovery of the resumption of correspondence between the deceased and Mr Langham, such conduct could not be seen as giving rise to a reasonable possibility of an ordinary person losing self-control to that extent.

33. [158]

    In considering the question whether the requirement in s.23(2)(d) is satisfied in a particular case, it is necessary to take into account the context in which the particular conduct took place. In this case, that meant that it was necessary to have regard to surrounding events where the Appellant had learned of his wife’s infidelity and had taken hold of her and forced her onto the bed, holding her down, and that she appears to have kicked back at the Appellant striking him in the manner described.

34. [159]

    The question posed by s.23(2)(d) must be considered not by a narrow and artificial confinement of attention to that part or the incident where the deceased appears to have kicked the Appellant. Rather, it is necessary to have regard to the complete incident for the purpose of determining whether there is evidence that the conduct of the deceased 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.

35. [160]

    This involves consideration of the comparative size and weight of the Appellant and the deceased as well as other aspects of the incident in which the Appellant killed his wife. The incident occurred in the context of an argument and physical altercation which was precipitated contextually by the Appellant being angry and upset about the relationship between the deceased and Mr Langham. The Appellant pushed his wife onto the bed and pinned her down. He smothered her to death.

36. [161]

    I accept that the notional ordinary person, for the purpose of s.23(2)(d), may act in unreasonable ways: Stingel v The Queen at 328. However, the reaction must still be within the range of possible reactions of an ordinary person as assessed by the Court when considering the threshold question of law involved.

37. [162]

    Applying s.23(2)(d) to the facts of this case, the reaction of the Appellant, in the context and factual circumstances of the case, was not within the range of possible reactions of an ordinary person. The partial defence of extreme provocation ought not to have been left to the jury.

38. [163]

    Given this conclusion with respect to s.23(2)(d) Crimes Act 1900 (NSW), the partial defence of extreme provocation did not need to be left to the jury at the Appellant’s trial. Accordingly, there was no miscarriage of justice arising from the fact that this partial defence was not left to the jury.

The Rule 4 Question

1. [164]

   I return to the question whether the Appellant should be granted leave under Rule 4 Criminal Appeal Rules (NSW) to advance the single ground of appeal relied upon in this Court.

2. [165]

   There is much to be said for the Crown submission that the absence of an application by defence trial counsel for the trial Judge to leave the partial defence of extreme provocation to the jury may be explained rationally as a tactical decision. The suggestion that an ordinary person could have responded to the deceased’s conduct, in the same or a similar manner as the Appellant, may well have detracted from the defence case which sought to attribute his reaction to an abnormality of mind in support of the partial defence of substantial impairment.

3. [166]

   As Bathurst CJ observed in ARS v R at [148], the Criminal Appeal Act 1912 (NSW) does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial.

4. [167]

   In any event, it is apparent from the conclusion reached in this judgment that the Appellant has not lost a real chance of a verdict of not guilty of murder, but guilty of manslaughter because extreme provocation was not left to the jury. The Appellant has failed to demonstrate that a miscarriage of justice resulted as asserted in his ground of appeal.

Conclusion

1. [168]

   This appeal has raised issues of importance concerning the partial defence of extreme provocation and the construction and operation of s.23 Crimes Act 1900 (NSW). These topics have been addressed at some length in this judgment, in circumstances where this appears to be the first occasion on which this Court has been called upon to consider s.23 in any detail.

2. [169]

   Having undertaken that task, however, the Appellant has not succeeded for reasons explained in this judgment.

3. [170]

   Accordingly, I would refuse the Appellant leave under Rule 4 to rely upon his single ground of appeal.

4. [171]

   The Appellant’s ground of appeal does not involve a question of law alone so that he would require, in any event, leave to appeal against conviction under s.5(1)(a) Criminal Appeal Act 1912 (NSW).

5. [172]

   I propose the following orders:

6. [173]

   N ADAMS J: I have had the significant advantage of reading the judgment of Johnson J in draft. I agree with the orders proposed by his Honour for the reasons provided.

7. [174]

   IERACE J: I also agree with the orders proposed by Johnson J for the reasons provided.