R v Fesus (No. 7) [2017] NSWSC 1422

Procedural Posture

Criminal Murder Trial / Publication of Reasons for Trial Rulings on Whether Provocation Manslaughter and Manslaughter by Unlawful and Dangerous Act Ought Be Left to the Jury

Legal Issues

1. 1 ['Whether provocation manslaughter should be left to the jury under s.23 Crimes Act 1900 as it stood in August 1997.' 'Whether manslaughter by unlawful and dangerous act should be left to the jury.']

Ratio Decidendi

Provocation manslaughter was not left to the jury because the evidence did not provide a sufficient foundation for either limb of s.23(2) Crimes Act 1900: the nappy-changing argument and single blow had settled, the alleged statement about paternity was tenuous and contradicted, and generalised grievances about domestic workload or a spouse proposing to leave and take children did not found provocation or satisfy the ordinary person test. Manslaughter by unlawful and dangerous act was left because the Accused's recorded statements about strangling or choking Jodie, including that perhaps he hugged her too hard, made it open for the jury to consider manslaughter if not satisfied beyond...

Court Disposition

Provocation manslaughter declined; manslaughter by unlawful and dangerous act left to the jury; reasons published for those rulings.

Orders

• ['Provocation manslaughter was not left to the jury.' 'Manslaughter by unlawful and dangerous act was left to the jury.']