R v McDonald [2019] NSWSC 839

Supreme Court New South Wales

Medium Neutral Citation: R v McDonald [2019] NSWSC 839 Hearing dates: 3 July 2019 Date of orders: 04 July 2019 Decision date: 04 July 2019 Jurisdiction: Common Law Before: Harrison J Decision: The partial defence of extreme provocation is available as an issue that should be left for consideration by the jury Catchwords: CRIMINAL LAW – whether partial defence of extreme provocation is raised – murder – s 23 Crimes Act 1900 – whether the alleged conduct of the deceased was capable of constituting a serious indictable offence – s 13 Crimes (Domestic and Personal Violence) Act 2007 Legislation Cited: Crimes Act 1900 (NSW), s 23 Crimes (Domestic and Personal) Violence Act 2007 (NSW), ss 7, 13 Cases Cited: Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16 Masciantonio v The Queen (1995) 183 CLR 58; [1995] HCA 67 R v Turnbull (No 5) [2016] NSWSC 439 Veness v Hodge [2015] NSWCA 20 Viavattene v R [2018] NSWCCA 197 Category: Procedural and other rulings Parties: Regina (Crown) Andrew John McDonald (Accused) Representation: Counsel: J Stanhope (Crown) J Watts (Accused)

Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid Commission of NSW (Accused) File Number(s): 2017/21443 Publication restriction: Nil

Judgment 1. HIS HONOUR: Andrew McDonald is currently on trial before me sitting in Port Macquarie with a jury of twelve, charged with having murdered his brother at Taree on 21 January 2017. Mr McDonald pleaded guilty to manslaughter when arraigned before the jury. The Crown refused to accept that plea in full discharge of the single count on the indictment. The Crown case closed just before lunch on the third day of the trial. 2. Mr McDonald has now made an application that the partial defence of extreme provocation should be left to the jury. That application is opposed by the Crown. The circumstances in which the issue arises can only be understood in the light of the events that give rise to the charge.