Supreme Court New South Wales Medium Neutral Citation: R v Villalon [2014] NSWSC 727 Hearing dates: 28 May 2014 Decision date: 28 May 2014 Jurisdiction: Common Law - Criminal Before: Price J Decision: Provocation left to the jury Catchwords: Criminal law - jury trial - charge of murder - whether provocation to be left to the jury - where accused asks that provocation not be left - tactical reasons. Cases Cited: James v The Queen [2014] HCA 6 Stingel v The Queen (1990) 171 CLR 312 Category: Procedural and other rulings Parties: Crown Michael Villalon (Accused) Representation: Counsel: Mr G Tabuteau (Crown) Ms J Manuell SC (Accused) Solicitors: Ms P Jazzy (Office of the Director of Public Prosecutions) Ms K Robinson (Legal Aid NSW) File Number(s): 2012/67960 Ex TEMPORE Judgment 1HIS HONOUR: Ms Manuell SC for the accused has asked me not to leave provocation to the jury. The first question is whether there is evidence which is capable of constituting provocation. The test has been summarised as being 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 v The Queen (1990) 171 CLR 312 at 334) 2In my view, there is abundant evidence of provocation, which arises from the testimony of the accused's relatives in the trial, together with the histories provided by the accused to the forensic psychiatrists. 3Ms Manuell submits that there is no evidence that is capable of satisfying the jury that the accused was an ordinary person. She points out that all of the evidence has been that the accused had an abnormality of mind at the time he killed the deceased. Ms Manuell contends that if provocation is left, the jury will be asked to put the evidence of mental illness out of its mind which Ms Manuell says is not possible. Ms Manuell is referring to the second part of the direction to the jury on provocation. 4If provocation is left, the jury would be directed that the law provides that an act causing death is an act done under provocation where: 1. The act is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased towards or affecting the accused, and 2. That conduct of the deceased was such that it 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 the conduct of the accused occurred immediately before the act causing death or at any previous time. 5In my view, there is evidence from which the jury could capably conclude that the conduct of the deceased was such that it could have induced an ordinary person in the position of the accused to have so far lost self-control as to form an intent to kill. The manner of the accused's attack upon the deceased manifests or speaks of a loss of self-control. 6Ms Manuell put to me that the accused does not wish to have provocation left to the jury for tactical reasons, as the focus of this trial has been on the partial defence of "substantial impairment by abnormality of mind." 7The difficulty is that the law requires me to leave provocation to the jury. Ms Manuell referred to James v The Queen [2014] HCA 6. However, the majority (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) in James said at [31]: "Discharge of the trial judge's role in ensuring fairness to the accused requires that the jury receives instruction on any defence or partial defence, provided there is material raising it, regardless of the tactical decisions of counsel. Amongst other things, this recognises the forensic difficulty of relying on inconsistent defences. The tactical decision not to rely on a defence or partial defence, whether objectively sound or otherwise, does not relieve the trial judge of the obligation to instruct the jury on how, on a view of the facts, a defence or partial defence arises." (italics added) 8It seems to me that provocation must be left to the jury. ********** 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: 05 June 2014