R v Rogers (No 7) [2019] NSWSC 689

Procedural Posture

Criminal Murder Trial Involving Partial Defence of Substantial Impairment / Procedural Ruling After Closing Addresses and Before Summing Up

Legal Issues

1. 1 ["Whether defence counsel's closing address on the fifth element of the partial defence of substantial impairment required correction." "Whether the jury's assessment of whether impairment was so substantial as to warrant reducing murder to manslaughter is confined to the level of impairment or may include circumstances of the offending." 'What direction should be given to the jury in the summing up about the fifth element of substantial impairment.']

Ratio Decidendi

The defence closing address did not require correction because the fifth element of the partial defence of substantial impairment requires a broad, common sense evaluative judgment applying community standards, and is not confined to the medically assessed level of impairment. Circumstances of the killing, including whether it was spontaneous, unplanned, brief, involved immediately available means, and did not involve features such as planning, weapon-seeking or prolonged brutality, were open to be considered by the jury when deciding whether the impairment was so substantial as to warrant reducing liability from murder to manslaughter.

Court Disposition

No correction of defence counsel's closing address was required; a direction on the fifth element would be given in the summing up.

Orders

• ["There is no need for correction of anything said in defence counsel's closing address." 'The direction as set out in [15] of the judgment will be given in the summing up.']