Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Rogers v R [2021] NSWCCA 61 Hearing dates: 29 July 2020 Date of orders: 9 April 2021 Decision date: 09 April 2021 Before: Johnson J at [1]; N Adams J at [173]; Ierace J at [174] Decision: 1. The Appellant is refused leave under Rule 4 Criminal Appeal Rules (NSW) to rely upon the ground of appeal. 2. The Appellant is refused leave to appeal against conviction. Catchwords: APPEAL – conviction – Applicant convicted of murder – Applicant suffocated his wife – partial defence of substantial impairment relied upon unsuccessfully at trial – partial defence of extreme provocation not relied upon at trial – contended on appeal that extreme provocation should have been left to jury – consideration of partial defence of extreme provocation in s 23 Crimes Act 1900 (NSW) – proper construction and operation of s 23 – held that partial defence of extreme provocation not raised on evidence at trial – miscarriage of justice not established – leave refused under Rule 4 Criminal Appeal Rules – leave to appeal against conviction refused Legislation Cited: Crimes Act 1900 (NSW) Crimes Amendment (Provocation) Act 2014 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Appeal Rules (NSW) Interpretation Act 1987 (NSW) Criminal Code (Qld) Crimes (Homicide) Act 2005 (Vic) Criminal Code Amendment (Abolition of Defence of Provocation) Act 2003 (Tas) Criminal Law Amendment (Homicide Act 2008) (WA) Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Act 2020 (SA) Cases Cited: ARS v R [2011] NSWCCA 266 Green v The Queen (1997) 191 CLR 334; [1997] HCA 50 Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16 Mancini v Director of Public Prosecutions [1942] AC 1 Masciantonio v The Queen (1995) 183 CLR 58; [1995] HCA 67 McIntyre v R (2009) 198 A Crim R 549; [2009] NSWCCA 305 Moffa v The Queen (1977) 138 CLR 601; [1977] HCA 14 Peniamina v The Queen (2020) 95 ALJR 85; [2020] HCA 47 Pollock v the Queen (2010) 242 CLR 233; [2010] HCA 35 R v Bentley; R v Davies; R v Thomas; R v Tilley [2019] NSWSC 283 R v Cliff (No. 5) [2018] NSWSC 166 R v Cliff (No. 6) [2018] NSWSC 587 R v McDonald [2019] NSWSC 839 R v McDonald [2019] NSWSC 858 R v Rogers (No. 9) [2019] NSWSC 1622 R v Singh [2012] NSWSC 637 R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130 R v Turnbull (No. 25) [2016] NSWSC 831 R v Turnbull (No. 5) [2016] NSWSC 439 Stingel v The Queen (1990) 171 CLR 312; [1990] HCA 61 The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 93 ALJR 1106; [2019] HCA 35 Turnbull v R [2016] NSWCCA 109 Van Den Hoek v The Queen (1986) 161 CLR 158; [1986] HCA 76 Ziha v R [2013] NSWCCA 27 Texts Cited: 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 Category: Principal judgment Parties: Warren Francis Rogers (Appellant) Regina (Respondent) Representation: Counsel: Mr S Odgers SC (Appellant) Mr D Kell SC; Ms E Jones (Respondent) Solicitors: Legal Aid NSW (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2016/276529 Publication restriction: --- Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Criminal Citation: R v Rogers (No. 9) [2019] NSWSC 1622 Date of Decision: 26 May 2019 Before: Lonergan J File Number(s): 2016/276529 Judgment 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. 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. 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. There is no appeal with respect to sentence. 3. 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. 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. 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. 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. 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. 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. Background to Events on 12 September 2016 1. 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. 2. 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. 3. 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. 4. 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. 5. 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). 6. 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). 7. 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). 8. 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). 9. The sentencing remarks of Lonergan J summarised events in August-September 2016 in the following way (R v Rogers (No. 9) at [24]-[27]): "24 At some time in August, the offender asked Anne to 'swear on her mother's grave' that she would not contact Jeff Langham again. She agreed. On 22 August 2016 there was a further argument because of email contact between Anne and Jeff Langham. In the context of that altercation Anne took a large number of temazepam tablets and was taken to hospital by ambulance. 25 On 26 August 2016 the offender told Dr Liew that he had found another email and was 'very angry and furious' which Dr Liew interpreted to be because he thought she was interested in somebody else. 26 On 31 August 2016, Anne and the offender participated in another counselling session with Ms Shaw in which strategies for better understanding and relating to each other were discussed. 27 There was further contact between Anne and Jeff Langham regarding a plan to go to Vietnam with him and also liaising with him about a friend, Ronald Walker, who was travelling to Tasmania to buy a motorbike." Events on 12 September 2016 1. 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). 2. The sentencing Judge made the following findings concerning the offence (R v Rogers (No. 9) at [28]-[36]): "28 On 12 September 2016 there was a family barbecue at the home of Anne and the offender. 29 At about 7pm on that day, Anne messaged the partner of Mr Walker saying 'Is Ron still going to Launceston. If so, Jeff said that he would come down and pick him up'. 30 The offender discovered that Anne was still in contact with Jeff Langham and they argued about this and there was then a physical fight. 31 The fight, or part of it, occurred on the bed in the second bedroom at the Links Avenue house. 32 Anne sustained an injury to the top of her head which was consistent with a strike from a blunt object or having hit her head against the bed headrest. 33 There was bruising on Anne's arms and legs observed on autopsy that Dr Burger the forensic pathologist said was consistent with Anne having been held down by the offender. 34 There is no doubt that the offender took a pillow from the bed and used it to smother Anne to death. I also conclude that given the injuries observed on autopsy fitted in with Anne trying to get the pillow off her face, scraping her own face in that process, that there was a struggle in which Anne fought back. In reaching that conclusion I accept the evidence of Dr Burger that the petechial haemorrhages observed were consistent with possible release and reapplication of the pillow. 35 Dr Burger said that whilst no studies have been performed to prove this, it would take between 30 seconds to 120 seconds before a person will lose consciousness if their airways are blocked, and if the brain is completely deprived of oxygen for between 4 and 6 minutes, brain death results. 36 I conclude that the offender held the pillow over Anne's nose and mouth long enough so that she lost consciousness and that unconsciousness was so severe and deep, that she did not recover." 1. Her Honour referred to the Appellant's suicide attempt after killing his wife (R v Rogers (No. 9) at [37]-[42]): "37 After this the offender wrote a note which read: 'Sorry kids but she has fucked me around for the last time tonight. Sorry I have to go but I have been hurt enough and tonight she broke her promise again. With my health I am glad I am gone. Love you all. So sorry it is to end this way'. 38 The offender took a number of blood thinning tablets and cut his arms and legs with razor blades and sat in the bath, in an apparent suicide attempt. At some point he also turned on both cars in the garage in an apparent attempt to gas himself. It is unclear in what order these things occurred, but there were blood spatters in multiple locations in the garage and the kitchen. 39 At approximately 2pm on 13 September 2016, a welfare check was conducted by police because Anne had not arrived at her father's house as expected. The house was locked and police had to force their way in. Anne was located deceased on the bed. The offender was in the bath, still alive, but his condition was life threatening and required emergency treatment and blood transfusions. 40 The offender was asked by a paramedic at the scene what happened and he replied: 'I just found out she cheated on me for a fourth time. Let me die'. 41 During his transport to hospital the offender told ambulance staff on three separate occasions that he wanted to die. At some point on 13 September the offender was scheduled under the Mental Health Act 2007 (NSW) as mentally disordered. He expressed the wish to die to hospital staff and attending police officers during 13 and 14 September 2016. 42 On 15 September 2016 the schedule was lifted by Dr Manambrakkat. He lifted the schedule because the offender was no longer suicidal and was willing to accept treatment. He concluded that the offender will need a comprehensive psychiatric assessment after he is medically stable and in a position to provide more information." 1. 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. 2. Reference will be made later in the judgment to parts of the evidence to which the Court was taken in support of the appeal. Reliance on Partial Defence of Substantial Impairment by Abnormality of Mind at 2019 Trial 1. 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]). 2. 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). 3. 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). 4. 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). 5. 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): "And there is a correlation between depression and violence in the literature. People who are, are often more prone to act impulsively and aggressively, and there would be reason to accept that given the nature of the conversation that that might be a trigger to a stronger emotional response and he was more vulnerable to acting impulsively and aggressively as a consequence of depression and in that sense the depression would have diminished his capacity to control his actions. And, in that sense, I think it made a more than insignificant contribution, but a contribution of substance." 1. In cross-examination by the Crown, Dr Allnutt said (T508): "But with a person with a depression, and indeed with a person with an adjustment disorder you are more emotionally vulnerable because of the condition and, therefore, more emotionally vulnerable to overreacting, losing control, engaging in an impulsive aggressive manner And that's the basis for my opinion on the issue of substantial impairment, that once he has - with that condition, he's more prone to react." 1. 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). 2. Further reference will be made to aspects of the evidence at the 2019 trial when addressing the arguments advanced in this Court. Directions to Jury at the 2019 Trial 1. 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). 2. 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). 3. 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]): "So just to go into a little more detail about the direction about substantial impairment, the accused needs to prove that it is more likely than not that at the time of his act causing the death of Mrs Rogers, he was suffering from an abnormality of mind arising from an underlying condition. … What is 'normal' as opposed to 'abnormal' in these capacities does vary amongst people. An 'abnormality of mind' occurs if the person's capacity to function in respect of that is so different from the capacity of a normal human being, that reasonable people in the community would consider it to be abnormal. As you know, the expert psychiatrists, both Dr Martin and Dr Allnutt, each identified an abnormality of mind not of a transient kind. So Dr Martin described the abnormality of mind as a chronic adjustment disorder, and Dr Allnutt described what he considered to be present was a major depressive disorder of mild to moderate severity. It was not suggested by either expert that the conditions that each of them diagnosed were of a passing or a brief kind. Now both experts also agreed that there was a degree of overlap, and given that overlap of symptoms there can be a legitimate diagnosis of either adjustment disorder or major depressive disorder. So that's an area of commonality, that is that an abnormality of mind arising from an underlying condition was something that they both considered was present in the case of the accused." 1. The jury rejected the partial defence of substantial impairment by abnormality of mind and convicted the Appellant of murder. 2. 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. Since 2014, s.23 Crimes Act 1900 (NSW) provides: "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." 1. 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. Section 23 was enacted in its present form by the Crimes Amendment (Provocation) Act 2014 (NSW) ("the 2014 amending Act"). 2. Before 2014, s.23 provided: "23 Trial for murder - provocation (1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter. (2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where: (a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused, and (b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased, whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time. (3) For the purpose of determining whether an act or omission causing death was an act done or omitted under provocation as provided by subsection (2), there is no rule of law that provocation is negatived if: (a) there was not a reasonable proportion between the act or omission causing death and the conduct of the deceased that induced the act or omission, (b) the act or omission causing death was not an act done or omitted suddenly, or (c) the act or omission causing death was an act done or omitted with any intent to take life or inflict grievous bodily harm. (4) Where, on the trial of a person for murder, there is any evidence that the act causing death was an act done or omitted under provocation as provided by subsection (2), the onus is on the prosecution to prove beyond reasonable doubt that the act or omission causing death was not an act done or omitted under provocation. (5) This section does not exclude or limit any defence to a charge of murder." 1. 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). 2. 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. 3. 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. 4. 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. 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. 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): "The case to which the select committee was responding was that of Singh. In that case Mr Singh stood trial for murder after cutting his wife's throat several times with a box cutter. At trial Mr Singh claimed that his wife, Manpreet Kaur, provoked him by telling him, before threatening him with deportation, she had never loved him and was in love with someone else. Mr Singh claimed that as a result of this conduct, he lost self-control and should not be found guilty of murder but of the less serious offence of manslaughter. The jury agreed and Mr Singh was sentenced to a minimum term of six years imprisonment with a total term of eight years. In order to acquit Mr Singh of murder, under the current test for provocation the jury needed to be satisfied there was a reasonable possibility that the conduct of Manpreet Kaur had caused Mr Singh to lose self-control and that her conduct was such that an ordinary person, in the position of Mr Singh, also could have so far lost self-control as to form the intention to either kill or seriously injure her. The rationale for the doctrine of provocation is that a person's moral culpability is reduced where they kill in these circumstances, such that a conviction for manslaughter rather than murder is warranted. The doctrine of provocation has been controversial, not least because of its perceived complexity." 1. 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: "After consultation with the select committee, the Government is satisfied that this bill constitutes the only workable means of achieving the intent of its central recommendations. Some stakeholders raised concerns that the bill goes too far in restricting the partial defence, potentially making it difficult for women who kill their partners after long-term abuse to rely on provocation. However, the Government is satisfied that the bill strikes a careful and appropriate balance between restricting the defence and leaving it available for victims of extreme provocation, including victims of long-term abuse who kill their abuser." The 2014 Second Reading Speech as an Aid to Construction 1. 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. 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. The Attorney General described s.23(2) Crimes Act 1900 (NSW) as "setting out a four staged test". 4. With respect to the first stage in s.23(2)(a), the Attorney General said: "The first threshold is set out in proposed section 23(2)(a), which requires that the act causing death was in response to conduct towards or affecting the accused." 1. The Attorney General then referred to the second stage in s.23(2)(b) (emphasis added): "Proposed section 23(2)(b) requires that the 'conduct' relied upon must amount to a serious indictable offence. A serious indictable offence is any offence which, when dealt with on indictment, carries a maximum penalty of five years or more imprisonment. The word 'conduct' is not otherwise defined. This threshold ensures that the jury must be satisfied there is a reasonable possibility that the conduct of the deceased was behaviour that the community and Parliament have already determined is so serious that it attracts a significant criminal penalty. This reflects the view that, in contemporary society, there is an expectation that people otherwise faced with offensive, insulting or upsetting conduct should not contemplate homicide or inflicting really serious injury. The requirement that the behaviour of the deceased amount to a serious indictable offence will also ensure that members of the community who are lawfully going about their business do not inadvertently 'provoke' another person to form an intention to kill or seriously injure them. What this threshold also provides of course is that merely leaving a relationship or infidelity will never provide a foundation for the partial defence because every member of the community has the right to exercise his or her personal autonomy in this way. As a select committee member, the Hon. Trevor Khan, stated in the other place previously the problem with a list of excluded behaviour was that if the excluded conduct took place in the context of other provocative behaviour it would be highly artificial and difficult to exclude, for example, allegations of infidelity. Despite this restriction, victims of domestic violence will be able to rely upon the partial defence in appropriate cases. Domestic violence, particularly long-term abuse, will generally involve conduct involving serious indictable offences, such as the range of assaults in the Crimes Act 1900. Even where abuse is not physical, but psychological, it may amount to the serious indictable offence of stalking or intimidation set out in section 13 of the Crimes (Domestic and Personal Violence) Act 2007. These offences are committed where the perpetrator's conduct is intended to cause the victim to fear physical or mental harm to themselves or another person with whom they have a domestic relationship. These offences are further defined in sections 7 and 8 of that Act to encompass a broad range of behaviours. As sections 7 and 8 make clear, they also envisage the introduction of evidence of past violent conduct, particularly where it involves a domestic violence offence. The concerns of stakeholders that victims of domestic violence may be prejudiced is also addressed by the continued recognition in proposed section 23(4) that the conduct relied upon need not necessarily have occurred immediately before the act causing death." 1. With respect to the third stage in s.23(2)(c), the Attorney General said (emphasis added): "Proposed section 23(2)(c) sets out the third step in establishing provocation, namely that the conduct of the deceased caused the accused to lose self-control. The bill retains a loss of self-control as the partial defence's central element. Replacing this with the requirement that the accused felt a 'justifiable sense of being seriously wronged', as recommended by the select committee, could significantly expand the use of the law of provocation, contrary to the committee's policy intent. In particular, if there was no requirement for loss of self-control, this could open up the use of the partial defence to situations involving a premeditated plan to kill. The partial defence should not be available in that situation. If satisfied the accused did lose self-control then the jury moves on to the final limb of the test in proposed section 23(2)(d)." 1. The Attorney General turned to the fourth stage in s.23(2)(d) (emphasis added): "Proposed section 23(2)(d) further tightens the test by requiring the jury to apply a purely objective test. They must consider whether the provocative conduct was so extreme that an ordinary person could have lost self-control to the extent of forming an intention to kill or inflict grievous bodily harm. The removal of the words in the existing section 'in the position of the accused' will have the effect of removing the need for the jury to assume that the ordinary person has been provoked to the level that the accused was, because they will be determining whether an ordinary person could have been so far provoked as to have lost self-control and formed the requisite intent when faced with that conduct. This will simplify the jury's task and provide for a greater focus on ordinary community standards. Although the select committee did not propose this change, it is consistent with its intention to restrict the use of the partial defence, reduce its complexity and bring it into line with community standards. It is hoped that this focus will ensure that cases such as that of Singh, which caused justifiable outrage in the community, will be a thing of the past." 1. A little later, the Attorney General said: "New section 23(3)(b) also excludes the use of the defence in situations where the accused has incited the provocative conduct in order to use violence in response. New section 23(4) provides that conduct of the deceased may constitute extreme provocation even if it did not occur immediately before the act causing death. As mentioned previously, this will provide protection for victims of long-term abuse in slow burn situations and is consistent with the current section 23(2)(b)." 1. The Attorney General observed that the Bill was "intended to deliver a limited and targeted partial defence". 2. In concluding the second reading speech, the Attorney General said (emphasis added): "The select committee also recommended that section 23 explicitly require that trial judges leave the partial defence to a jury only where there is reasonable evidence of it. Under common law only where there is reasonable evidence of partial and full defences must the trial judge explain the relevant law and direct the jury to consider it in reaching its verdict. To legislate this in relation to the partial defence of provocation alone would again serve only to complicate and confuse matters." 1. 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. 2. 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). 3. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. I accept the Crown submissions on these issues. The following propositions are to be applied in determining this appeal. 3. 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. 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. 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. 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. 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): "(2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where: (a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused, and (b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased, whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time." 1. 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): "The standard of the 'ordinary person' prescribed by para (b) is an objective standard by which to determine whether the conduct relied on by the accused could have induced the formation of an intent to kill or to inflict grievous bodily harm. For the purposes of applying this standard, the notional ordinary person is placed 'in the position of the accused'. In other words, the significance of the deceased's conduct is assessed by reference to its significance to the accused, and the ordinary person is notionally exposed to conduct having that significance in order to determine whether the ordinary person could have been induced thereby to form either of the prescribed intents. Paragraph (b) requires the jury to take full account of the sting of the provocation actually experienced by the accused, but eliminates from the jury's consideration any extra­-ordinary response by the accused to the provocation actually experienced." 1. In Green v The Queen, McHugh J said at 368-369 (emphasis added): "In my opinion, the phrase 'an ordinary person in the position of the accused' means an ordinary person who suffered the provocation which the accused suffered as a result of the conduct of the deceased. The standard against which the loss of self-control is judged is that of a hypothetical ordinary person. That person is unaffected by the accused's idiosyncrasies, personal attributes or past history, save and except that the words 'in the position of the accused' require that the hypothetical person be an ordinary person who has been provoked to the same degree of severity and for the same reasons as the accused. … The fact that an accused is especially sensitive to the conduct constituting the provocation, or that he or she takes the conduct as being aimed at a particular sensitivity when in fact it is not, will not preclude a finding of provocation, nor prevent it from being attributed to the hypothetical ordinary person." 1. 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). 2. 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]. 3. 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. 4. 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. 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. 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. 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. 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. 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): "It just happened again mate, the same old thing, you know? Contacting that bloke Jeff again, you know? You know I caught her out doin' it again, I just blew up and then we got in a big argument, fight. You know she was kickin' me, she kicked me in the head and then she kicked me in the shoulder and we got, it got really nasty, just in the bedroom and that, you know? And then she said, well just let me go, you know, I wanna go, you know, I've had enough, you know? And like I just, then I just, I took her life which wasn't right, you know?" 1. 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). 2. Later in the same recorded conversation, the Appellant said to Mr Hoare (Exhibit F, page 21) (emphasis added): "When it first started out the fight, she said, I just wanna go to my father's and I said, well get fucked, you're not goin' to your dad's now, you know? So I went off about it a bit, you know? But that's when she, she was layin' on the bed, she kicked me in the face and then she kicked me again in the shoulder and dislocated me shoulder and then we, we got into a bloody barney on the bed, you know? And that's what happened, you know? And then she got real depressed after that and just, you know, she knew I wasn't gonna let her go to her father's and she just said, well just kill me now, you know? I said, well if that's what ya want I'll kill ya and so I did. (IND) it ate me up mate. It ate me up. That's what happened, I did kill her pal." 1. Later again in the same conversation, the Appellant said (Exhibit F, page 26, AB227): "I just snapped mate. I'm not a bad person, I just snapped, you know? I just snapped … She pushed me too far." 1. Later in the conversation, the Appellant said, "I just went berserk that night, you know" (Exhibit F, page 34; AB235). 2. 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). 3. 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). 4. 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): "I just, that night, ah, we both lost it, ya know? Ya know, like, your mother to kick me in the head and then kick me in the shoulder." 1. 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): "Well, I've got two loose teeth where your mother kicked me in the face and they, they've gotta come out when I can get to a dentist. How long that'll be, I don't know." 1. 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). 2. 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): "WR You know how I told you, you know, that your Mother kicked me twice in the head? Do you remember that? Remember me tellin' you that? GR Yeah, you've told me that plenty of times Dad — WR Yeah, well, when I woke up this mornin' at half-past five, I had three teeth sittin' in my mouth just all together. But they, they all, they were loose, from when she kicked me and they all just fell out and the roots are still in my mouth, so I've gotta, try and get to the dentist. Whenever that happens, I dunno. So all the three teeth, I kept all the three teeth as a kind of, evidence that, you know, that, how hard, how hard she kicked me, ya know? GR Yeah. WR Yeah, but that's, that's when I went, that's when I lost it, you know? Before that I was, she was gettin' up, I was gettin' off her and she was gettin' up and then she just kicked me, ya know and then that's, I can't remember anything after that, ya know? But that's how — GR Yeah - - - WR That's how hard she kicked me. I knew, I knew I had a problem, but I didn't think that, I felt it was two teeth there, but three of 'em just come out, you know? Yeah, so now I've got a problem with that, if they get infected and, I, you know, if I can't get to the dentist, one bloke, at work, he took five months to get my bloody dentist, you know? GR Yep." 1. 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). 2. 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). 3. In cross-examination, Dr Burger was asked (T340) (emphasis added): "Q. And fourthly, the bruises at 8 and 9 are consistent with the deceased kicking someone, yes? A. The bruise at number 7 as well, possibly, yes. Q. 7, 8 and 9, and also the bruises at 10, 11 and 12 are consistent with the deceased having kicked the accused? A. Yeah, well kicked or being held down, or involved in some measure of struggle." 1. 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]. 2. In evidence-in-chief, Dr Martin recounted the account provided by the Appellant on 10 August 2017 (T351-352) (emphasis added): "I understand that the alleged offending occurred in the evening of 12 September 2016. He told me that during the day that they had gone out and done some shopping. He said she had wanted to buy some sports shoes and a new iPhone. He said that he could not remember exactly what they had done. I asked him if they had been getting on reasonably, and he said, 'Yeah, reasonably'. He said that he had thought that he was working harder than she was at trying to build the relationship. He said, 'I always thought we'd had a wonderful life together, but she was in a dark space, she was treating me like shit'. He said that over the last three years that she had been drinking quite heavily on a daily basis. On the evening of the day in question he said they had talked because she had lied to him about a phone being missing. He told me that she had been trying to arrange for Jeff to pick up Ron to look at a bike for him. He said that she was on the computer. He said that he confronted her and asked, 'Are you back in contact with Jeff again?' He said that she said she was. He said that he asked, 'What happened to your promise? You swore on your mother's grave'. He said that he became 'cranky' with her and pushed her back on the bed, held her arms down and said, 'How can you do this, broken my [heart], wrecked our marriage, destroyed the kids, now you're going to lose contact with the grandchildren'. He said that he had told her that she could get up and go and live at her father's. He said that she then kicked him twice in the shoulder and the head, and that one of his teeth had been broken with the kick. He told me that the kick was to his head.' Q. Just stopping you there? A. Yep. Q. Did he say: 'What set me off, I was depressed with how she was when she came back. I didn't trust her. She was treating me like shit'; go on from there thanks? A. 'He denied having planned to kill her and said that he planned to plead guilty to manslaughter because it wasn't premeditated.' Q. Did he say: 'From that point I can't remember', and he was unable to apparently recall in the interview with you any further - he said he could not remember the exact physical act of killing her; is that right? A. Yes." 1. Dr Allnutt gave evidence of his conversation with the Appellant on 10 November 2016 in which the Appellant said (T481) (emphasis added): "Q. And doctor did Mr Rogers provide you with an account of events on the 11th, that occurred on the 11th of September 2016 and leading up to the death of his wife? A. Yes, he said, on the 11th of September 2016 they had a party for her father, that day there were arguments about minor issues. That night they were watching television and she said she was going upstairs to take her make-up off, which he thought was an unusual thing for her to say. He followed her upstairs after she had gone up and she was on the computer. He asked for her phone and when she said she had no - and she said she she had no phone and when he told her to look in the drawer he found the phone. On the phone he found a text to 'Chris', a person who had an association with Jeff, and he noted that she was making indirect contact with Jeff. He got upset. He asked her to get off the computer and come and sit on the bed, which she did. When he enquired, she told him she had had ongoing contact with Jeff a few times before. He then got really uptight and cranky. He pushed her onto the bed and held her arms he asked her how she could do this to him and told her she was going to break up the family for someone who had been married three times. He then said she could go back to her father. He took his hands off her and she kicked him on side of the head and then on the shoulder with a second kick. He said he could not recall what happened then. His next recollection was realising that she was dead. His memory was patchy. He felt as though he was standing on the side of the bed and watching his happening. Something had snapped in his brain, he said." Operation of s.23 Crimes Act 1900 (NSW) in the Circumstances of this Case 1. The principal focus of attention in this appeal is the construction and application of s.23(2)(d) Crimes Act 1900 (NSW). 2. 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. Section 23(2)(b) – The Second Element 1. 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. 2. 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. 3. 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: "59 Assault occasioning actual bodily harm (1) Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years. …" 1. 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). 2. 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). 3. In McIntyre v R, this Court described "actual bodily harm" at [44]: "The term 'actual bodily harm' is not defined in the Crimes Act 1900. The phrase 'bodily harm' has been said to include any hurt or injury calculated to interfere with the health or comfort of the victim: R v Overall (1993) 71 A Crim R 170 at 178. It need not be permanent, but must be more than merely transient or trifling - it is something less than 'grievous bodily harm', which requires really serious physical injury, and 'wounding', which requires breaking of the skin: R v Lardner (NSWCCA, 10 September 1998, unreported, BC9804715 at page 4). The distinction between grievous bodily harm and actual bodily harm involves an assessment of the degree of harm done, with one being more serious than the other: R v Overall at 173-174. Bruises and scratches to a victim are typical examples of injuries that are capable of amounting to actual bodily harm: R v Cameron [1983] 2 NSWLR 66 at 67. If a victim has been injured psychologically in a very serious way, going beyond merely transient emotions, feelings and states of mind, that would likely amount to actual bodily harm: Li v R [2005] NSWCCA 442 at [45]." 1. 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. Section 23(2)(a) and (c) – The First and Third Elements 1. 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. 2. 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. 3. 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). 4. 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. 5. 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. 6. 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). Section 23(2)(d) – The Fourth Element 1. 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. 2. 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. Approach of this Court in Determining Whether Partial Defence Ought to have been left to the Jury at Trial 1. 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. 2. 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]. 3. In this respect, Brennan, Deane, Dawson and Gaudron JJ said in Masciantonio v The Queen at 67-68 (emphasis added): "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'." 1. In Lindsay v The Queen, French CJ, Kiefel, Bell and Keane JJ said at [16] (footnotes omitted and emphasis added): "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." 1. Later in Lindsay v The Queen, their Honours said at [24]-[26] (footnotes omitted and emphasis added): "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." Returning to the s.23(2)(d) Issue in this Case 1. 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): "The critical question is whether the jury might, if it accepted that view of the gravity and implications of the provocative conduct, have entertained a reasonable doubt about whether the objective test was not satisfied. In our view, no jury could have entertained such a reasonable doubt. The appellant's infatuation with - and associated jealousy in relation to - A was something which itself inevitably detracted from his actual powers of self-control. That being so, while the infatuation could be relevant to assessing the gravity of the insult involved in the profane and dismissive comment made to him, it cannot be seen, for the purposes of the objective test, as diminishing the power of self-control of the hypothetical ordinary person. There is an added element of artificiality involved in projecting the hypothetical ordinary person of the objective test into the situation of the appellant at the time of the killing since it is unlikely that a person with power of self-control within the range attributable to a hypothetical ordinary nineteen year old would, in all the circumstances including the court order restraining the appellant from approaching A, have been at the scene in the first place. Certainly, in the context of that court order and of the appellant's past harassment of A notwithstanding her discouragement of his advances, it is difficult to conceive that any ordinary nineteen year old would be even surprised to be told in strong and abusive terms to go away when he intruded, as the appellant did, upon the privacy of the deceased and A as they voluntarily engaged in sexual activity late at night in a darkened car. Be that as it may, no jury, acting reasonably, could fail to be satisfied beyond reasonable doubt that the conduct of the deceased, including the insulting remark and the sexual activities in which he and A were allegedly engaging, was not of such a nature as to be sufficient to deprive any hypothetical ordinary nineteen year old of the power of self-control to the extent that he would go to his own car, obtain a butcher's knife and fatally stab the deceased with it. Put differently, no jury, acting reasonably, could fail to be satisfied beyond reasonable doubt that the appellant's reaction to the conduct of the deceased fell far below the minimum limits of the range of powers of self-control which must be attributed to any hypothetical ordinary nineteen year old. It follows that the learned trial judge was correct in declining to leave a defence of provocation under s.160 to the jury." 1. 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. 2. 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. 3. 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]. 4. 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). 5. 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]. 6. 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". 7. 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. 8. 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. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. 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. 15. 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. 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. 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. 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. 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. 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. Having undertaken that task, however, the Appellant has not succeeded for reasons explained in this judgment. 3. Accordingly, I would refuse the Appellant leave under Rule 4 to rely upon his single ground of appeal. 4. 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. I propose the following orders: 1. refuse the Appellant leave under Rule 4 Criminal Appeal Rules (NSW) to rely upon the ground of appeal; 2. refuse the Appellant leave to appeal against conviction. 1. 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. 2. IERACE J: I also agree with the orders proposed by Johnson J for the reasons provided. ********** 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: 09 April 2021