Rogers v R [2021] NSWCCA 61

Rogers v R [2021] NSWCCA 61

Although there was some evidence capable at a prima facie level of satisfying s.23(2)(a), (b) and (c), the evidence was not capable of satisfying s.23(2)(d). In the context of the Appellant's anger about his wife's renewed contact with Mr Langham, his pushing and holding her on the bed, comparative size and strength, and the alleged kicking by the deceased, the formation of an intention to kill or inflict grievous bodily harm fell below the minimum powers of self-control attributable to an ordinary person. The partial defence of extreme provocation therefore did not need to be left to the jury, no miscarriage of justice was shown, and leave under Rule 4 and leave to appeal against...

Jurisdiction
Australia
Judgment Date
09 April 2021
Procedural Posture
Criminal Conviction Appeal / Application for Leave Under Rule 4 Criminal Appeal Rules (nsw) to Rely on a Ground of Appeal, and for Leave to Appeal Against Conviction
Outcome
Leave under Rule 4 Criminal Appeal Rules (NSW) refused; leave to appeal against conviction refused.
Legal Topics
['murder' 'manslaughter' 'partial Defence of Extreme Provocation' 'substantial Impairment by Abnormality of Mind' 'rule 4 Criminal Appeal Rules (nsw)' 'construction of S 23 Crimes Act 1900 (nsw)']
['criminal Law' 'criminal Appeals'] ['murder' 'manslaughter' 'partial Defence of Extreme Provocation' 'substantial Impairment by Abnormality of Mind' 'rule 4 Criminal Appeal Rules (nsw)' 'construction of S 23 Crimes Act 1900 (nsw)']

Case Brief

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Procedural Posture

Criminal Conviction Appeal / Application for Leave Under Rule 4 Criminal Appeal Rules (nsw) to Rely on a Ground of Appeal, and for Leave to Appeal Against Conviction

Legal Issues

  1. 1 ['Whether 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).' 'Whether the evidence at trial was capable of satisfying the elements of extreme provocation in s.23(2) Crimes Act 1900 (NSW), particularly s.23(2)(d).' 'Whether leave should be granted under Rule 4 Criminal Appeal Rules (NSW) where the partial defence was not raised at trial.' 'Whether leave to appeal against conviction should be granted.']

Ratio Decidendi

Although there was some evidence capable at a prima facie level of satisfying s.23(2)(a), (b) and (c), the evidence was not capable of satisfying s.23(2)(d). In the context of the Appellant's anger about his wife's renewed contact with Mr Langham, his pushing and holding her on the bed, comparative size and strength, and the alleged kicking by the deceased, the formation of an intention to kill or inflict grievous bodily harm fell below the minimum powers of self-control attributable to an ordinary person. The partial defence of extreme provocation therefore did not need to be left to the jury, no miscarriage of justice was shown, and leave under Rule 4 and leave to appeal against...

Court Disposition

Leave under Rule 4 Criminal Appeal Rules (NSW) refused; leave to appeal against conviction refused.

Orders

  • ['The Appellant is refused leave under Rule 4 Criminal Appeal Rules (NSW) to rely upon the ground of appeal.' 'The Appellant is refused leave to appeal against conviction.']