R v Fesus (No. 7) [2017] NSWSC 1422

Supreme Court New South Wales

Medium Neutral Citation: R v Fesus (No. 7) [2017] NSWSC 1422 Hearing dates: 13 September 2017 Date of orders: 13 September 2017 Decision date: 20 October 2017 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: Publication of reasons for the following trial rulings:

(a) declining to leave provocation manslaughter to jury;

(b) leaving manslaughter by unlawful and dangerous act to the jury. Catchwords: CRIMINAL LAW – murder trial – whether provocation manslaughter and manslaughter by unlawful and dangerous act ought be left to the jury – provocation manslaughter not left to the jury – manslaughter by unlawful and dangerous act left to the jury – publication of reasons for rulings Legislation Cited: Crimes Act 1900 Cases Cited: Heron v The Queen (2003) 197 ALR 81; [2003] HCA 17 Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16 R v Fesus (No. 8) [2017] NSWSC 1423 R v Youssef (1990) 50 A Crim R 1 Texts Cited: --- Category: Procedural and other rulings Parties: Regina (Crown) Steve Frank Fesus (Accused) Representation: Counsel: Mr G Smith SC (Crown) Mr K Chapple SC (Accused)

Solicitors: Director of Public Prosecutions (Crown) Nyman Gibson Miralis (Accused) File Number(s): 2013/207336 Publication restriction: ---

Judgment 1. JOHNSON J: The Accused, Steven Frank Fesus, was charged by indictment with the murder of his wife, Jodie Melissa Fesus (hereinafter referred to as "Jodie"), at Mt Warrigal on 11 August 1997. 2. It was the Crown case that the Accused killed his wife by strangling or choking her in their house at Mt Warrigal and then transported her body to Seven Mile Beach where he buried her in a shallow grave. The Accused denied that he was involved at all in the disappearance or death of his wife. 3. In advance of closing addresses, I heard submissions as to whether manslaughter ought be left to the jury by way of provocation or unlawful and dangerous act. 4. Mr Chapple SC, for the Accused, did not seek that either form of manslaughter should be left to the jury in this case (T1431, 1447). 5. I was satisfied that manslaughter by unlawful and dangerous act should be left to the jury (T1459). 6. I determined that provocation manslaughter should not be left to the jury in the circumstances of this case and indicated that I would publish my reasons for that ruling at a later time (T1442). 7. What follows constitutes my reasons for these rulings.