R v Rogers (No 7) [2019] NSWSC 689

Supreme Court New South Wales

Medium Neutral Citation: R v Rogers (No 7) [2019] NSWSC 689 Hearing dates: 22 May 2019 Date of orders: 22 May 2019 Decision date: 22 May 2019 Jurisdiction: Common Law - Criminal Before: Lonergan J Decision: There is no need for correction of anything said in defence counsel's closing address however the direction as set out in [15] of this judgment will be given in the summing up. Catchwords: CRIMINAL LAW – murder trial – closing addresses – written direction "Elements of Partial Defence of Substantial Impairment"– consideration of fifth element – jury assessment of whether the impairment was "so substantial" at the relevant time as to warrant liability for murder being reduced to manslaughter Cases Cited: R v Ignjatic (1993) 68 A Crim R 333 Quinn v R [2018] NSWCCA 297 Category: Procedural and other rulings Parties: Regina (Crown) Warren Rogers (Accused) Representation: Counsel: C Young (Crown) R Pontello (Accused)

Solicitors: NSW Director of Public Prosecutions (Crown) Ross Hill & Associates (Accused) File Number(s): 2016/276529 Publication restriction: Nil

Judgment 1. The Crown has raised an issue regarding the contents of the defence closing address on 21 May 2019. It is common ground that the principle issue for determination by the jury at this trial is whether the defence has established the partial defence of substantial impairment. 2. On the first day of the trial, 6 May 2019, the accused pleaded not guilty to murder but guilty to manslaughter. 3. The Crown case as outlined and emphasised in its closing submissions is that the accused deliberately murdered the deceased not due to any loss of control cause by an abnormality of mind arising from an underlying condition that led to him being substantially impaired in his capacity to control himself, but that the accused murdered the deceased in a fit of anger and jealousy, acting out his will to dominate and control the deceased. 4. The Crown made a closing submission that contrary to any suggestion that the accused was impaired in his capacity to control himself, he actually carried out the murder as part of his exercise of control over the deceased. 5. On 8 May 2019, day 3 of the trial, the jury had been provided with a written direction "Elements of the Partial Defence of Substantial Impairment" with the approval of both the Crown prosecutor and defence counsel. That written direction was accompanied by an oral direction. The oral direction was repeated on 17 May 2019 in response to a note from the jury regarding substantial impairment. 6. The written direction (marked MFI 6) states: "Elements of Partial Defence of Substantial Impairment In order for you to find the accused not guilty of murder but guilty of manslaughter by reason of substantial impairment, the accused must prove, on the balance of probabilities, the following elements: 1. At the time of the act of suffocating the deceased; 2. An abnormality of the mind of the accused; 3. Arising from an underlying condition;1 4. Substantially impaired his capacity to control himself; AND 5. In your opinion, the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. If the partial defence of substantial impairment is established by the accused, it reduces his criminal liability from what would otherwise be murder to manslaughter. ______________________________________________________________ 1 An "underlying condition" means a pre-existing mental or physiological condition, other than a condition of a transitory kind." 1. The oral direction given was as follows [T112.27 – T115]: "Now I am going to return to an explanation of that what's called a partial defence next, so partial defence in the sense of reducing murder to manslaughter, and that is the subject of a separate document which I am going to mark mfi 6 and that's going to be handed to you now, and you will see that one's headed Written Direction Elements of the Partial Defence of Substantial Impairment, and I will go through that with you. MFI #6 DOCUMENT HEADED WRITTEN DIRECTION ELEMENTS OF PARTIAL DEFENCE OF SUBSTANTIAL IMPAIRMENT MARKED AND DISTRIBUTED TO JURY. You will see that this has a number of elements as well and you will recall that the elements are the essential building blocks of, in this case, the defence or partial defence of substantial impairment. You can see a number of things about it. You see in the introductory paragraph: "In order for you to find the accused not guilty of murder but guilty of manslaughter by reason of substantial impairment, the accused must prove on the balance of probabilities the following elements". Now, the first element, at the time of the act of suffocating the deceased, that calls for you 12 to focus on the state of mind of the accused at the time of the undisputed suffocation. So that's element one. The second, number 2, requires proof of an abnormality of his mind; 3, arising from an underlying condition. So that is elements 2 and 3, and patently the partial defence is not speaking of normal human states of minds or emotion such as rage, jealousy and so forth, nor is it talking about the effects of intoxication by alcohol or drugs or something of that nature because they are external things that can affect the mind of a person. What it is talking about is abnormality of the mind itself. As you can see by way of the footnote to element 3 down the bottom there, an underlying condition means a pre existing mental or physiological condition other than a condition of a transitory kind. That is, it is based on some aspect of the physical operation of the human body but it can also be mental, and that's the defence case here. By that I mean not showing a physical sign or explanation but it's a mental condition or state. As you can see from the footnote, the underlying condition must be something more than a transient or passing kind of condition. So looking back to element 4, you can see that the abnormality of mind that the accused asserts is that he was substantially impaired in his capacity to control himself. Now, as you would expect each counsel has foreshadowed the calling of expert evidence to assist you about this and the ultimate judgment about any expert evidence and the ultimate judgment about all elements about the partial defence is a matter for you 12. So I think the names of the experts have already been stated, it's Dr Martin for the Crown and Dr Allnutt for the defence, and you will have their evidence soon. So looking again at element 4, we can see the impairment must have been substantial, not trivial or of little moment. You see at the end of line 4 the word "and" in capitals because all these elements have to be established on the balance of probabilities. So moving to element 5, we can see that that's in a rather different category from what we have gone through before at elements 1 to 4. You see it commences with "in your opinion", that's the opinion of you 12, the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. So what that requires really is an assessment of particular aspects of the mind of the accused at the time of the suffocating of the deceased. Those are the elements before. But element 5, that's a separate question about which no one, including the psychiatrists and other doctors, is qualified to express an opinion. This is a matter for you 12, as I have said, and what element 5 is talking about is whether you 12 come to the view that any substantial impairment was so substantial that it warrants murder being reduced to manslaughter. Now, that's an evaluative judgment, a value judgment to be made by you 12 as members of the community reflecting community values. Now, for you 12 to fulfil that task I don't believe I need to embark on a lengthy legal explanation about the differences between murder and manslaughter, because they are both part of the overarching crime of homicide, that is, the offence of unlawfully killing a human being. Both those offences are punished by the criminal justice system, in some cases very severely. But there is a significant legal and common sense difference between the two of them, murder and manslaughter. Most people know, I think, that manslaughter is a lesser or reduced form of homicide compared to murder. The offence of murder, I think you will agree, attracts a special and permanent condemnation upon those who commit it. Manslaughter is understood to be a grave offence of taking a life of a fellow human being but in circumstances that are somehow extenuating or in some sense explicable or in some sense reduce the gravity of what the offender has done and that is an important question for you at the end of the trial, I suggest, and that is was the impairment to the accused's capacity to control himself not only substantial but also so substantial as to warrant reduction from murder to manslaughter. The final point to be made at this stage about the substantial impairment written direction document you have is this. We have discussed already that the Crown must prove the elements of the offence of murder beyond reasonable doubt, but we can see from the second line of the document you have on the partial defence of substantial impairment here that this partial defence need only be established on the balance of probabilities. That phrase is not difficult to understand. Are the necessary elements of the partial defence, that is, all five of them, shown by the evidence to be more probable than not. So that's the explanation in relation to the elements of the partial defence of substantial impairment and the elements of murder. I can return to these elements and legal directions again. It's quite a lot to take in and it is conceptually perhaps a little difficult, and if you send a note and want the directions regiven we can do that, but bear in mind that these will be given again at the end of the evidence as part of the summing up and they will probably be touched on by counsel during their final addresses as well. That's all I want to say about those for the moment, but there's some other legal matters we need to attend to. You will remember in the opening remarks I said that occasionally we have legal issues to discuss between counsel and myself in my role as judge of the law and you don't need to be troubled about those while we deal with those, so for the moment you can return to the jury room and we will have you returned to court when we are ready for the next phase of the evidence. Thank you for your attention." 1. In his closing address the Crown prosecutor raised four issues that it said illustrated why the jury should reject any suggestion in respect of the "fifth element", that is the jury's determination as to whether, in its opinion, the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. They were [T581-582]: "So the Crown points to four key reasons why you would not be satisfied it was so substantial, not even close, that his capacity to control himself was so substantially impaired he should be found not guilty of murder. And the first factor the Crown points to is the severity of the illness. At best his major depressive disorder is at a mild to moderate level of severity. And that is Dr Allnutt's opinion based on evidence which the Crown says should be difficult for you as the jury to rely on, given the other evidence I've referred to as to the factors that he says are important. There is no issue that Mr Rogers was going through a particularly stressful time in his life with the combination of health problems and his wife's affair, but when you consider the level of impairment, and particularly also you consider Dr Martin's evidence, this is not a man who is anywhere near the higher end of the scale. The second matter is the lack of evidence that his ability to control himself was impaired in any material way. I have been through these factors despite several highly emotional situations in the weeks leading up to this event. There is a complete absence of evidence before you that Mr Rogers' ability to control himself was compromised on any of those occasions, and both psychiatrists agree with that. The highest the evidence goes in this trial is the suggestion by Dr Allnutt that his condition likely made him vulnerable to overreact aggressively, and that this could have played a part of substance in the offence, but so substantial to reduce murder to manslaughter you might think it doesn't reach that. The third matter is the concern that you as the tribunal of fact would have about his inconsistent versions to psychiatrists and to other people. And that you may think there is some evidence to suggest that he had been attempting to reduce his culpability to ensure perhaps a better legal outcome. This was a concern for Dr Martin. I've referred to the evidence, and it should be a concern for you. The version given to psychiatrists that he had let go of Anne, and told her to go to her father's, and was then kicked in the head, snapped, and can't remember killing her, attempts to support that the accused was substantially impaired at the time. But how could you place any reliance on that version given the clear inconsistencies with the recorded admissions right after the offence? The fourth matter is the one that I started with. You would need to consider what part, if any, depression played in this incident compared to what part the accused's anger and jealousy that at his wife's continued affair with Jeff Langham played. The Crown submits you might think it's all about that. And to consider what the real driving factor of this event was, all you need to do is look at the evidence of what the accused said at the time, not months later to psychiatrists, knowing they were preparing a report for the court." 1. In his closing address, defence counsel Mr Pontello addressed the fifth element of the partial defence [T608.05-11] as follows: "What about the fifth element? Why is the impairment so substantial as to warrant murder being reduced to manslaughter? What are the extenuating circumstances here that reduce the gravity of what he has done bearing in mind this is as the Crown has submitted a moral judgement that you are required to make. Well there's nine reasons why you would be satisfied members of the jury as to the fifth element. One, the severity of the psychiatric illness for all of the reasons I have already submitted. It was not extreme. It was mild to moderate but it was a major depressive disorder or a chronic adjustment disorder. Not just a depressive disorder or adjustment disorder simpliciter as referred to by Dr Amlani for example. All of a sudden in 2016 his whole world is turned upside down against the backdrop of the cancer, the backdrop of what would be the shortened life expectancy and a 41 year long marriage and a life of love and devotion. That is one. Two, the fact that the act causing death occurred in a highly charged emotional situation against a background of Mr Rogers doing everything he possibly could do within his power to reconcile with his wife. Three, the fact that the act causing death was completely spontaneous and unplanned. Four, the fact that the act causing death occurred during a heated physical altercation which involved Mr Rogers being kicked a number of times including in the face. Five, depending on what you make of the evidence the fact that, and I make the submission, the fact that the death may have occurred quickly but on any view of it under no circumstances can it be said that it involved any kind of prolonged or sustained or vicious or humiliating or degrading kind of attack. Six, the manner in which Mr Rogers committed the act causing death involving as it did the readily available item of soft bedding, the pillow. Seven, Mr Rogers' attempts, his own genuine attempts to take his own life immediately after the act. Eight, and perhaps most importantly, the fact that his behaviour was just so extremely out of character, that he loved his wife so much for so long and all he wanted to do was be with her. And nine, his extreme and genuine remorse here as evidenced in the gaol calls and in his own second suicide attempt. You heard him breaking down on the phone, he is apologising, "it was terrible" he said. "I can't forgive myself for what I did" he told Dr Allnutt. "I am still suffering from what I done". There is genuine remorse here having regard to the loss of control and what he did." 1. The Crown's argument as elaborated upon in its written submissions was that the only question for the jury on the fifth element is to determine whether the accused has satisfied the jury in the circumstances of the case that any impairment to his capacity to control himself (if the jury finds that it is likely to have existed) was so substantial (emphasis added) that he should not be condemned or blamed as a murderer, and that rather, he should be treated as guilty of manslaughter. 2. The Crown prosecutor argued that this question restricts itself only to those factors which are relevant to the level of impairment. To include factors claiming to be "extenuating" and that "reduce the gravity of what he has done", has nothing to do with the degree of impairment and therefore reference to those factors is unwarranted and contrary to the law. 3. The Crown prosecutor argued that only reasons 1, 2 and 7 outlined in the defence case have relevance to the jury's assessment of that matter, given the evidence in the case and that although 3, 4, 5 and 6 may be relevant to whether the accused lost control, they do not have any part to play in the assessment of whether the impairment was so substantial at the relevant time. 4. The Crown prosecutor conceded that reason 8 regarding character could, on the face of it, be relevant to the issue of good character shedding light on the substantial impairment issue. It was further proposed by the Crown that at the least, this consideration needs to be explained in the summing up or clarified at some level that the context in which character is relevant is limited to whether the past good character sheds light on the issue of whether the accused was so substantially impaired that there should be reduction from murder to manslaughter. 5. The Crown prosecutor also submitted that reason 9 regarding remorse as evidenced in gaol calls after the event cannot have any role to play in the assessment and should be withdrawn. 6. The Crown prosecutor submitted that regardless of what clarifications should occur in the summing up, the following extract from the bench book that had not yet been included in the oral direction provided should be given to the jury to clarify the jury's task on element 5: "In answering this question, you should approach the matter in a broad common sense way, applying (as I have said) the standards of the community which you are here to represent. In deciding this, you may think that a substantial impairment would have to be significantly substantial so as to warrant a reduction of the blameworthiness of Mr Rogers to manslaughter. That is a question which you must decide." 1. Mr Pontello submitted that the circumstances identified in factors 2, 3, 4, 5 and 6 are directly concerned with the nature of the killing and these are very important matters for the jury to take into account when considering whether it is satisfied on balance as to the fifth element, that is, whether it should reduce murder to manslaughter. 2. Mr Pontello relied upon R v Ignjatic (1993) 68 A Crim R 333 at 346 which was referred to with approval recently in the case of Quinn v R [2018] NSWCCA 297 at [50]. Mr Pontello argued that the Chief Judge at Common Law in Quinn summarised the relevant principles on the substantial impairment defence and explained that it is critical for the jury, as highlighted by the direction that it was proposed should be given in the summing up, that the determination by the jury as to whether the accused was so impaired, sits side by side with the question of the requirement for them to consider whether it should reduce the blameworthiness of the accused from murder to manslaughter. Mr Pontello argued that this involves a value judgement by the jury representing the community. It is not limited to a finding of a medically based fact as to the level of impairment suffered by the accused. 3. Mr Pontello conceded that there was no need for there to be a repeated reference to "extenuating circumstances" in the summing up but those nine factors are directed to the jury's required analysis and the determination that it must make when considering whether it should find the accused guilty of manslaughter rather than murder. 4. Mr Pontello argued that the fact that the death of the deceased was carried out in the way it was, in the context of a heated physical altercation, that it was spontaneous and unplanned, that it was not prolonged, sustained, vicious, humiliating or degrading, and used a readily available item of soft bedding, are all factors that tell against planning and cruelty and tell towards impulsivity and are factors that must be weighed by the jury in assessing element 5.