R v Songcuan

Background

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

Relevant statutory provisions

1. Section 23 of the Crimes Act provides as follows: 23 Trial for murder - partial defence of extreme provocation (1) If, on the trial of a person for murder, it appears that the act causing death was in response to extreme provocation and, but for this section and the provocation, the jury would have found the accused guilty of murder, the jury is to acquit the accused of murder and find the accused guilty of manslaughter. (2) An act is done in response to extreme provocation if and only if - (a) the act of the accused that causes death was in response to conduct of the deceased towards or affecting the accused, and (b) the conduct of the deceased was a serious indictable offence, and (c) the conduct of the deceased caused the accused to lose self-control, and (d) 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. (3) Conduct of the deceased does not constitute extreme provocation if - (a) the conduct was only a non-violent sexual advance to the accused, or (b) the accused incited the conduct in order to provide an excuse to use violence against the deceased. (4) Conduct of the deceased may constitute extreme provocation even if the conduct did not occur immediately before the act causing death. (5) For the purpose of determining whether an act causing death was in response to extreme provocation, evidence of self-induced intoxication of the accused (within the meaning of Part 11A) cannot be taken into account. (6) For the purpose of determining whether an act causing death was in response to extreme provocation, provocation is not negatived merely because the act causing death was done with intent to kill or inflict grievous bodily harm. (7) If, on the trial of a person for murder, there is any evidence that the act causing death was in response to extreme provocation, the onus is on the prosecution to prove beyond reasonable doubt that the act causing death was not in response to extreme provocation. (8) This section does not exclude or limit any defence to a charge of murder. (9) The substitution of this section by the Crimes Amendment (Provocation) Act 2014 does not apply to the trial of a person for murder that was allegedly committed before the commencement of that Act. (10) In this section - act includes an omission to act.
2. 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: 13 Stalking or intimidation with intent to cause fear of physical or mental harm (1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence. Maximum penalty - Imprisonment for 5 years or 50 penalty units, or both. (2) For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship. (3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person. (4) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm. (5) A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed.
3. "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. Section 7 of the same Act provides the meaning of "intimidation": 7 Meaning of "intimidation" (1) For the purposes of this Act, intimidation of a person means - (a) conduct (including cyberbullying) amounting to harassment or molestation of the person, or Note - An example of cyberbullying may be the bullying of a person by publication or transmission of offensive material over social media or via email. (b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or (c) conduct that causes a reasonable apprehension of - (i) injury to the person or to another person with whom the person has a domestic relationship, or (ii) violence to any person, or (iii) damage to property, or (iv) harm to an animal that belongs or belonged to, or is or was in the possession of, the person or another person with whom the person has a domestic relationship, or (d) conduct amounting to the coercion or deception of, or a threat to, a child to enter into a forced marriage within the meaning of the Crimes Act 1900, section 93AC, or (e) conduct amounting to the coercion or deception of, or a threat to, a person to enter into a forced marriage within the meaning of the Commonwealth Criminal Code, section 270.7A (Definition of forced marriage). (2) For the purpose of determining whether a person's conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person's behaviour.
5. 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. 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]): "143. …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. 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]. 145. In this respect, Brennan, Deane, Dawson and Gaudron JJ said in Masciantonio v The Queen at 67-68: "The answer to the question whether the trial judge should have left provocation to the jury at either stage of events in this case depends upon whether there was evidence which was capable of constituting provocation. However, because the onus of disproving provocation rests upon the prosecution once there is evidence to raise the question, the actual test must be expressed somewhat more precisely. It is 'whether, on the version of events most favourable to the accused, which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense' [Stingel (1990) 171 CLR 312 at 334]. The question is the same when a trial judge is considering whether or not to leave provocation to the jury as it is when an appellate court is considering whether it ought to have been left, but as a matter of practicality a trial judge is likely to lean towards leaving provocation if he or she can. As was observed by the Privy Council in Lee Chun-Chuen v. The Queen [[1963] AC 220 at 230; see also Moffa v The Queen (1977) 138 CLR 601 at 617]: 'there is a practical difference between the approach of a trial judge and that of an appellate court. A judge is naturally very reluctant to withdraw from a jury any issue that should properly be left to them and he is therefore likely to tilt the balance in favour of the defence. An appellate court must apply the test with as much exactitude as the circumstances permit'." (Footnotes supplied; emphasis added) 146. In Lindsay v The Queen, French CJ, Kiefel, Bell and Keane JJ said at [16]: "[16] Where provocation is raised by the evidence, the determination of whether it has been negatived is for the jury. Whether the subjective limb is negatived is a question of fact. Whether the objective limb is satisfied is a question of opinion or, to adopt Glanville Williams' classification, it is a question of 'evaluative fact'. The threshold question of law is whether there is material in the evidence which sufficiently raises the issue to leave the partial defence for the jury's consideration. The determination of the threshold question requires the trial judge (and the appellate court) to consider the sufficiency of the evidence to allow that an ordinary person provoked to the degree the accused was provoked might form the intention to kill or to do grievous bodily harm and act upon that intention, as the accused did, so as to give effect to it. The respective roles of judge and jury in the latter determination is the issue raised by the first ground of the appeal." (Footnotes omitted; emphasis added) 147. Later in Lindsay v The Queen, their Honours said at [24]-[26]: "[24] The rationale for the requirement that the court determine as a matter of law whether evidence is capable of constituting provocation was identified by Dixon J in Packett v The King as the need to apply an overriding or controlling standard for the mitigation allowed by law. The statement, made with respect to provocation under the Criminal Code (Tas), which provided that 'the question whether any matter alleged is, or is not, capable of constituting provocation is a matter of law', has been accepted as a statement of the common law of provocation in Australia. [25] In Stingel v The Queen, this Court affirmed that the function of the ordinary person test is to provide 'an objective and uniform standard of the minimum powers of self-control' which must be observed before provocation may reduce what would otherwise be murder to manslaughter. In this connection, the Court approved Gibbs J's statement respecting the relevance of contemporary conditions and attitudes to that determination. Masciantonio v The Queen confirms that the statements in Stingel, while made with respect to the Criminal Code (Tas), are equally applicable to the common law of provocation in Australia. [26] Under the common law of provocation, the trial judge and the appellate court have the task of fixing 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. The question for the trial judge and the appellate court is the same: whether 'on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense'. The determination of the question by the appellate court involves somewhat greater exactitude than the determination made by the trial judge. This reflects, as a matter of practicality, the reluctance of trial judges to withdraw the issue from the jury and the tendency to 'tilt the balance' in favour of the accused." (Footnotes omitted; emphasis added)

Issues for consideration

1. Having regard to s 23 of the Crimes Act, the issues that arise for consideration on this application are as follows: 1. Were the acts of the accused causing death in response to conduct of the deceased towards or affecting the accused? 2. Was the conduct of the deceased a serious indictable offence? 3. Did the conduct of the deceased cause the accused to lose self-control? 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. The conduct referred to in each of these elements must be the same conduct: Rogers at [94]-[96].

The evidence

1. 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. 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. Q49 What could you tell us?
4. 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. And later: Q73 Then you mentioned that, um, she, like, you mentioned an incident that when driving she would hit you with a slipper? A Yeah, while I was driving, that time in, uh, because, uh, uh, she wants me to drop her to the clinic in Blacktown. There I was driving and, uh, she was beside me. And then all of a sudden she got this, um, thing and smashed on my face. I almost hit her but I didn't do it. I thought, Oh what's wrong with you? Why did you hit me? And she come again with these, uh, stories that, oh my God, this never stops. Q74 So in the last four years then, were, uh, all these arguments, would you say they were always just verbal? Or did, did they, or get physical at any stage? A Uh, verbal, sometimes physical, when, uh, she's, uh, very blunt. Sometimes she throws anything that she handles me, handles anything, she just throw. Sometimes, uh, this bowl. And really, I don't know what to do. I'm just, uh, fearing for my life, because I always, uh, watching her, watching my back. … Q76 Did you tell anyone, uh, in your family, what, what's happening? Did you try and get any help from any family members? A No. No, no, no, because it's, uh, personal. Sometimes my daughter, uh, sometimes, she saw her with the knife once. She shouted at her, Mum, why are you, put it down. So that's where it, she will calm down. But if, without my daughter, I, I don't know what happen, what, what will happen. It is good that she was, uh, working from home.
6. 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. 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. 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: Q50 [16:47] Fred, do you want a drink of water? A Yeah. That's why, uh, I brought knife with me, to just, uh, take my life. Because there's no use of living, I don't want to be living by myself. I want also freedom enjoy my family, my daughters, grandchildren, but, uh, sometimes it will come to an end. And, uh, I don't regret that, uh, what I've done. At least I'm free. … Q148 OK. I'll leave that there for a second. Um, yeah, what, what happened? Linda's lying on the ground. What, what happened then? A Yeah, and I just leave it there and then I go away. Then, uh, compose myself, what's my next move. … Q228 Or with that, um, this, well, the plastic or what you mentioned about this? A Yeah, it's, uh, I, I told to myself, it has, this, this has to be stopped, always like that, uh, every day, 24/7, it's getting worse. DETECTIVE SERGEANT PERRY Q229 [17:29] Were you angry at all today? A Angry? Me? No. I just, uh, I am glad that this has ended. Now I can live, uh, without, uh, threat on my life. … Q308 What, what, what was in your mind? Like, what would be the result of you squeezing her neck? What would happen to her? A Ah, just to stop her shouting, to stop her screaming, but, uh, I think I over, uh, acted. And, uh, I decided that it is better this way, instead of, uh, for me living miserable life. Q309 [17:47] So, when you say it's, you chose that, to do what you did in, in the garage, instead of living a miserable life, does, what do you mean by that? A Because, uh, I cannot live freely, I don't have peace, if someone is always angry with you, nagging with you. Q310 So, when you say you wanted to silence her, does it mean you wanted her to, not to talk? Or you wanted to kill her so that she, she doesn't nag you again? A Yeah, ah, I think kill is, uh, the right word, in, instead of, uh, because I tried many times to stop, so that, uh, I told her, Why don't you just stop, this only hearsay, why don't we just move on? Q311 So you agree that - - - A ..... Q312 - - - by saying that you wanted to silence her you mean that you wanted to kill her so she doesn't nag you any more? A Yeah, yeah. Q313 And is it fair to say that when you were squeezing her neck and you had your hand on her mouth you knew that she's, she won't be able to breathe? A Uh, yeah, she's, uh, she was to breathe, but I, just, uh, tighten my grip. Q314 So you knew what your actions are going to cause, what , what would be the outcome of your actions? You knew that, right? A Yeah. Yeah, yeah. I think I, this better this way, instead of, uh, living, living in hell. Q315 How long had you been thinking about that before this morning? A Ah, maybe, maybe sometimes, but, uh, I'm, uh, giving her, uh, the chance to change. But, uh, seems that, uh, she has been tormenting me every day, it never stops. So I decided that what's wrong with my life if I am going to live like this. Where is my freedom? I cannot even, uh, go to my friends any more, go socialise with them, or even, uh, call them, text them, or, uh, it's, uh, it's, it's, uh, an abnormal life. Q316 So, due to the ongoing issues between you and Linda, as you mentioned, that you, she was tormenting you and she was nagging you all time, when did you decide, when, how long ago did you make up your mind that you're going to kill her? A Ah, just, uh, this morning, because, imagine every morning, just being bullied at. I mean, she never stops. So, I'm beat up already. And, uh, I don't care, uh, what will happen to me, so I think it's better this way.

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

1. 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. 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. Intimidation with intent to cause fear of physical or mental harm: Crimes (Domestic and Personal Violence) Act, s 13 2. Use or possess an offensive weapon or offensive instrument with intent to commit a serious indictable offence (intimidation): Crimes Act, s 33B 3. Damage property: Crimes Act, s 195 4. Damage property with intent to injure a person: Crimes Act, s 196
2. 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. 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. 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: "The loss of control which is essential is not to be confused with emotions of hatred, resentment, fear or revenge. If the appellant, when in control of her mind and will, decided to kill the deceased because those emotions or any of them had been produced in her by the enormity of the deceased's past behaviour and threatened future behaviour … the crime would nevertheless be murder."
2. 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. "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. The conduct of the deceased and the emotions it stirred in the accused nonetheless remain relevant. Gleeson CJ observed in Chhay (at [14]): "Emotions such as hatred, resentment, fear, or the desire for revenge, which commonly follow ill-treatment, and sometimes provide a motive for killing, do not of themselves involve a loss of self-control, although on some occasions, and in some circumstances, they may lead to it."
5. 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. 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. 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. 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: "Then, uh, this morning, would be around 8.30, I was still sleeping and she just barged in and, uh, hit me with, uh, that thing with the thing I don't know that one and she was shouting. So I'm really fed up, so, because, uh, my daughter was still sleeping, so I don't want to, uh, wake her up. So I ran downstairs and went to the garage, and she followed me there. We did, like ..... and still, uh, hitting me and shouting, and so I really, I had no choice but to silence her. Because it's a really, been a, I'm not, little bit of at peace and a bit of a freedom. So I thought to myself, I think, it is better to, uh. So when I strangle her, her there, so I decided to, uh, kill myself too. Because, uh, I don't want to be abused. This mean to, today in prison is different, because in prison I have freedom there, is different than staying at home, always quarrelling, arguing. I, I'm not like that. I cannot, hurt other people but I'm really fed up, I cannot really stand it any more. It is, uh, tails with dog ..... uh, some, some stories that I heard that, uh, we knew about pet, a dog and, uh, if you are ..very good... to dog she, uh, the dog is, uh, always, uh ..... with you. When you arrive he's happy, something, when he sees his master, always jumping. But there is some time that if that dog was cornered and he went to bit him it will bite back. That's what, uh, uh, that's what I, uh, example my, uh, well what I have, uh, done. Because, uh, I don't want to be , I never hurt other people before. But when you're already beat up, there's no peace at home ... when I take my, you are being in one house, abusing you, throwing everything at you, pointing knives at you. Sometimes she threatens me, I will kill you, but I just, uh, kept quiet. Yeah, that's all that happened."
9. 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. 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: "Yeah, and I just leave it there and then I go away. Then, uh, compose myself, what's my next move."
11. 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. 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): Q306 What was your intention when you said you have to silence here? A Uh, to, keep her shouting and to, to stop, uh, nagging me, to stop, uh, bullying me. Because, uh, she was asking, she, like, she was asking so that I can, uh ..fightback... so, like, uh, she was, just she, she was trying to go for my patience. But, uh, I dunno, uh, I just, my mind just - - - Q307 When you wrapped your arm around her neck and you started squeezing it, um, you put your other hand on, on, to cover her mouth. A Mmm. Q308 What, what, what was in your mind? Like, what would be the result of you squeezing her neck? What would happen to her? A Ah, just to stop her shouting, to stop her screaming, but, uh, I think I over, uh, acted. And, uh, I decided that it is better this way, instead of, uh, for me living miserable life.
13. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.

Amendments 13 March 2023 - Publication Restriction lifted DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 March 2023