R v Cullen [2015] NSWSC 636

Supreme Court New South Wales

Medium Neutral Citation: R v Cullen [2015] NSWSC 636 Hearing dates: 11-15, 18-22, 25-26 May 2015 Date of orders: 26 May 2015 Decision date: 26 May 2015 Jurisdiction: Common Law - Criminal Before: Harrison J Decision: Application refused Catchwords: CRIMINAL LAW – murder – plea of guilty to manslaughter – whether Crown case sufficient to negative self-defence and provocation – application at close of Crown case for directed verdict of not guilty of murder but guilty of manslaughter – application refused Category: Procedural and other rulings Parties: Regina (Crown) Christopher Cullen (Accused) Representation: Counsel: S Herbert (Crown) W Terracini SC (Accused)

Solicitors: Director of Public Prosecutions (Crown) Archbold Legal (Accused) File Number(s): 2014/25737 Publication restriction: Nil

EX TEMPORE Judgment 1. HIS HONOUR: The accused is on trial for the murder of his wife, Victoria Comrie Cullen, at Taren Point on 22 January 2014. To an indictment charging that offence the accused has pleaded not guilty. He has pleaded guilty to manslaughter. The Crown has not accepted that plea in discharge of the single count on the indictment. 2. In the events that have occurred, and as a result of the way that this case has unfolded, it has become clear, and it is also uncontroversial, that the accused's plea of guilty to manslaughter is based upon ultimate conclusions favourable to him upon either or both of the following matters. First, that in killing the deceased he acted in self-defence. Inherent in his plea is that the accused accepts that his response to whatever threat he perceived in the circumstances was not a reasonable response. Secondly, that in killing the deceased he did so whilst acting under provocation. 3. At the close of the Crown case the accused applied for a direction that the question of his guilt on the charge of murder should not be left to the jury but that they should be directed to return a verdict of not guilty of murder but guilty of manslaughter. That application is opposed. It arises and is based upon the following matters. 4. In general terms, the accused contends that the Crown has failed to negative both self-defence and provocation. More particularly, the accused submits that there is no evidence in the Crown case upon the basis of which the jury could be satisfied beyond reasonable doubt that he was not acting in self- defence when he killed the deceased, or, that when he did so, he was acting under provocation. It is necessary to consider each of these in turn.