R v Cullen [2015] NSWSC 677

Supreme Court New South Wales

Medium Neutral Citation: R v Cullen [2015] NSWSC 677 Hearing dates: 11-15, 18-22, 25-29 May 2015 Date of orders: 29 May 2015 Decision date: 29 May 2015 Jurisdiction: Common Law - Criminal Before: Harrison J Decision: Declined to direct the jury in the terms requested. Catchwords: CRIMINAL LAW – murder – direction to jury – whether summing up should include direction about accused's difficulty in distinguishing between self-defence and provocation when killing deceased 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

Judgment 1. HIS HONOUR: At or approaching the conclusion of my summing up to the jury, Mr Terracini SC for the accused sought a direction in the following terms: "You may think it would be difficult for the accused if you accepted his account to distinguish between the thought processes associated with self-defence and provocation during a struggle where provocative statements are made together with at least one stabbing wound inflicted upon him and to compartmentalise them with any precision." 1. I declined to direct the jury in the terms requested. I marked the proposed direction as MFI 31. My reasons for declining to direct the jury in these terms are as follows. 2. The accused pleaded not guilty to murder but guilty to manslaughter. It was made clear at the earliest stage of the trial that the accused admitted killing the deceased and that his plea was predicated upon a contention that the Crown could not negative self-defence and provocation. That approach necessarily although not exclusively focussed attention upon the deteriorating relationship between the accused and the deceased over a period of some years as their marriage disintegrated and which culminated in the violent death of the deceased. 3. The accused killed the deceased at the premises of an anglers' club at Taren Point of which he was a member. On the morning of 22 January 2014 the accused and the deceased attended Sutherland Local Court, where they appeared before a magistrate in proceedings commenced by the accused seeking compensation for the cost of repairs to his car. The proceedings were in a sense a metaphor for the state of the marriage, as the comments of the magistrate appear to recognise. The outcome on the day was not conclusive or favourable to the accused who can be seen on CCTV footage to leave the court in an agitated state ahead of the deceased. The deceased lived in an apartment close to the court and drove straight there. She was immediately followed by the accused. 4. At about 10.25am or so, neighbours in the same apartment block heard screaming and moaning coming from the underground car park area of the premises. Subsequent forensic analysis revealed the presence of drops of the deceased's blood in her garage and on her car. Court papers from the Sutherland Local Court proceedings were found strewn in the garage. The accused then left the car park in his white Hyundai motor vehicle. It seems clear that the deceased was at that time still alive but contained within the boot of that car. 5. The accused drove to the Boating Camping and Fishing store at Taren Point. He arrived there at approximately 12.15pm. Evidence in the trial included CCTV footage of his car in the car park area of the store as well as internal footage of the accused inside it. He can be seen clearly inside the store selecting a shirt and a set of filleting knives which he purchased at the register at 12.17pm. He was issued with a receipt for his purchase that contained his name. It is an available inference that the deceased was still inside the boot of the car at this time. There is no evidence to explain the time delay between when the accused drove from the deceased's apartment and when he arrived at the store. 6. The evidence is also silent as to what precisely happened between the time when the car left the store and when it arrived at the Taren Point anglers' club location. Vehicular access to the club required a key to unlock a boom gate at the top of a driveway. The accused had a key for that purpose. He drove into the club premises. When the deceased was finally discovered, she was slumped in a kneeling position behind the accused's vehicle on a grassy area adjacent to the clubhouse. The car was parked a short distance away. It was splashed or smeared with blood and the fishing knives were on the grass beside it. The deceased's hair was found in the boot of the car and her blood was found on the back bumper and inside the boot. 7. It is conceded by the accused that the killing of the deceased occurred in what was a frenzied attack upon her. The nature and extent of the wounds sustained by her bear testament to that fact. He throat was cut deeply on both sides of her neck and her body was pierced with several significant stab wounds. Two of these wounds to her body were likely to have caused her death. In addition the deceased's left and dominant hand was significantly lacerated by what seems clearly to have been defensive wounds inflicted in opposing the attack. 8. It was the accused's case at trial, elicited from evidence in the Crown case and from a forensic expert called by the accused, that the Crown had failed to negative the possibility that he acted either or both in self-defence and under the influence of provocation from the deceased. There was no issue that his self-defensive response, if that is what it was, was disproportionate to the threat he perceived. 9. The accused was apprehended at the scene as he emerged from the mangroves that formed the coastline at that point on Woolooware Bay. He was punctured with several stab wounds upon his upper left chest and abdomen and was later found to have sustained a punctured left lung. As the result of that injury his face and neck were significantly distorted by subcutaneous emphysema caused by the escape and entrapment of air in his chest, neck and face. His condition is visually obvious in a video recording made by the police at the scene. Part of what the accused said in the course of that brief interview includes the following: "Q.16. The wounds you've got in your chest and your stomach, where did they come from? A. I think one might have been from her and the ones around my heart were from me. … Q.18 O.K. So they're your fishing knives. So what, what's ultimately happened today then? A. We, we went to Court today. Uh, regarding a civil matter and we were talking and she started taunting me with her sex life and I lost control and we had a fight, that's it. And I just didn't want to live no more after that." 1. A significant issue in the trial revolved around whether or not the accused sustained an injury at the hands of the deceased. That became relevant to the question of self-defence, and whether anything that the accused did in performing acts that killed the deceased were or could have been in response to an actual or perceived threat or attack upon him emanating from the deceased. It was also said to be relevant to the issue of provocation. However, the issue of provocation was more fundamentally grounded upon a loss of self-control said to have been caused by verbal taunting close to the time of the killing as well as an historical build up of uncontrollable emotion as the accused discovered that the deceased had been having a relationship with a younger man following their separation in about October 2013. 2. The jury were directed by me upon the legal elements of self-defence and provocation. With one minor correction, at the request of the Crown, to something I said in the course of my summing up concerning the ordinary person test for the second limb of the provocation calculus, neither counsel relevantly required any correction or augmentation of anything that I said to the jury. The one exception to that proposition is the defence request for a direction in the terms set out above. 3. The accused did not give evidence in his trial. Any conclusions that the jury might ultimately arrive at concerning his thought processes, to adopt the words of the proposed direction, must therefore be based upon inference from the whole of the evidence in the case but without his evidence about it. That evidence, however, does include the things said by the accused to the police at the scene immediately following the killing. 4. The burden of Mr Terracini's argument in favour of the proposed direction is that it would be, and in this case it must have been, extremely difficult for the accused or for someone in his position, rationally to have considered and analysed all of the competing physical and emotional influences at play when he performed the acts that caused the death. Mr Terracini's proposition is, in my words rather than his, that the jury should have been reminded of these things in order to understand that an accused in general and Mr Cullen in particular, is not to be judged by standards of calm reflection or studied logic. On the contrary, Mr Terracini was quick to emphasise that the accused was confronted with a dramatic and violent situation, albeit to one extent or another the result of his own conduct, from the consequences of which he ought not in the circumstances be expected to have extricated himself as he might have chosen to do with the benefit of hindsight. 5. As arguably compelling as that proposition may appear to be, the proposed direction by which it is hoped the proposition may be given some additional emphasis or effect is in my view no more and no less than a restatement of the wisdom that appears to underpin the nature of the defences of self-defence and provocation in the first place. The proposed direction does not in my opinion assist the jury to understand these defences but on the contrary may have served to create confusion in their minds. The defences are separate and distinct, and a failure to negative either of them in this case would command a verdict of not guilty of murder but guilty of manslaughter. The concept that the jury should have considered the accused's ability to compartmentalise his thought processes at the time of the offence for the purpose of analysing the Crown's success in negativing these defences is no part of their role when the defences are properly understood. The certain fact is that the events out of which these separate defences might simultaneously or sequentially have emerged were traumatic, frenzied and potentially confusing. However, that is not some further basis for suggesting to the jury, in addition to a proper direction about the principles governing these defences, that they also examine the possibility that the accused might not have been able at the time to discern whether he was acting in self-defence or under provocation or both or to what extent. 6. I accept, and it is reasonable to expect that the jury might accept, that the accused would have been confronted, to the extent that it is relevant, with the difficulty identified in the proposed direction. In my opinion, that difficulty does not have a relevance or independent status beyond its implicit identification or characterisation in the standard jury directions about self-defence and provocation. The proposed direction would in my view have had the potential to mislead the jury and to lead them to follow an erroneous process of reasoning.