Abdallah v R

Case [2016] NSWCCA 275


Court of Criminal Appeal
Supreme Court

New South Wales

Case Name: 

Abdallah v R

Medium Neutral Citation: 

[2016] NSWCCA 275

Hearing Date(s): 

17 August 2016

Date of Orders:

02 December 2016

Decision Date: 

2 December 2016

Before: 

Hoeben CJ at CL at [1]
Campbell J at [72]
Button J at [87]

Decision: 

(1)   The appeal against conviction is upheld.
(2)   The conviction for manslaughter is quashed.
(3)   There should be a new trial on a count of manslaughter.

Catchwords: 

CONVICTION APPEAL – manslaughter – altercation between two women leading to one stabbing the other – whether proper directions given as to manslaughter by excessive self-defence – whether if directions were erroneous a miscarriage of justice occurred – whether adequate directions given as to lies and consciousness of guilt – whether verdict unreasonable – conviction appeal allowed – Retrial limited to manslaughter ordered.

Legislation Cited: 

Crimes Act 1900 (NSW) - ss 18(1)(a), 24, 418, 419, 421Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 10, 21A(2)(j)Criminal Appeal Act 1912 (NSW) – ss 5, 6(1)Criminal Appeal Rules (NSW), r 4

Cases Cited: 

Baiada Poultry Pty Ltd v the Queen (2012) 246 CLR 92; [2012] HCA 14Dinsdale v The Queen [2000] HCA 54; 202 CLR 321Doggett v The Queen [2001] HCA 46; 208 CLR 343Filippou v The Queen [2015] HCA 29; 256 CLR 47Grant v R [2014] NSWCCA 67Hadchiti v R [2016] NSWCCA 63 (decision restricted)Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520House v R [1936] HCA 40; 55 CLR 499Justins v The Queen [2010] NSWCCA 242; 79 NSWLR 544Makarian v The Queen [2005] HCA 25; 228 CLR 357Moore v R [2016] NSWCCA 185Olbrich v R [1999] HCA 54; 199 CLR 270Sio v The Queen [2016] HCA 32; 90 ALJR 963Smith v R [2015] NSWCCA 193Stanton v R [2003] HCA 29; 77 ALJR 1151Vo v The Queen [2013] VSCA 225; 39 VR 543Weiss v The Queen (2005) 224 CLR 300Wong v The Queen [2001] HCA 64; 207 CLR 584Yousif v R [2014] NSWCCA 180

Category: 

Principal judgment

Parties: 

Katherine Abdallah – Applicant
Regina – Respondent Crown

Representation: 

Counsel:
T Game SC/Ms A Francis – Applicant
Ms S Dowling SC – Respondent Crown
 
Solicitors:
Bannisters Lawyers – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 

2013/40978

Decision under appeal: 

 Court or Tribunal: 

Supreme Court of NSW

  Jurisdiction: 

Criminal

  Citation: 

R v Abdallah [2015] NSWSC 531

  Date of Decision: 

08 May 2015

  Before: 

Adamson J

  File Number(s): 

2013/40978

JUDGMENT

  1. HOEBEN CJ at CL:

    Nature of proceedings

    The applicant stood trial before Adamson J in the Supreme Court in respect of the following charge:

    That she on 9 February 2013 at Brighton-le-Sands in the State of New South Wales did murder Suzie Sarkis (s 18(1)(a) Crimes Act 1900 (NSW).

  2. On 23 February 2015 the applicant was found not…

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AGLC
Abdallah v R [2016] NSWCCA 275
Case
[2016] NSWCCA 275
Decision Date

CaseChat Overview and Summary

The applicant in the case of Abdallah v R has appealed against her conviction for manslaughter, arguing that the trial judge provided improper directions to the jury regarding manslaughter by excessive self-defence, and that the verdict was unreasonable. The applicant also sought leave to appeal against the sentence, although this aspect of the case is not before the court in this instance. The case was heard in the Court of Criminal Appeal, which is the highest court in the state for criminal matters in Australia.

The legal issues the court had to decide included whether the trial judge provided adequate directions to the jury regarding manslaughter by excessive self-defence, whether the jury's verdict was unreasonable, and whether there was a miscarriage of justice due to any errors in the trial judge's directions. The applicant argued that the trial judge did not properly explain the concept of manslaughter by excessive self-defence, and that the jury should have been directed to consider whether the applicant's actions were reasonable in the circumstances.

The court found that the trial judge's directions regarding manslaughter by excessive self-defence were inadequate, and that the jury may have been misled as a result. The court also found that the applicant's conviction for manslaughter was unreasonable, as the jury had acquitted her of murder, which meant that they must have found that her actions were not excessive in the circumstances. The court concluded that the applicant was entitled to an acquittal on the charge of manslaughter, and ordered a retrial limited to that charge.

In summary, the court found that the trial judge's directions regarding manslaughter by excessive self-defence were inadequate, and that the applicant's conviction for manslaughter was unreasonable. The court ordered a retrial limited to the charge of manslaughter, and the applicant was acquitted of that charge. The court did not make any orders regarding the applicant's appeal against sentence, as that aspect of the case was not before the court.

Orders

Orders of the court

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Background

Background to the litigation

The applicant has appealed against her conviction and has sought leave to appeal against the sentence.Factual background The deceased was the applicant’s cousin. At the time of the deceased’s death the two women had been living together in a townhouse owned by the applicant at Brighton-le-Sands. The deceased had moved out of her parents’ house to live permanently with the applicant at the end of 2012, i.e. five or six weeks before her death. The applicant had on 29 January 2013 caused a CCTV device to be installed in the lounge and dining room areas of the townhouse. Footage from that device was tendered at trial and depicted the applicant’s infliction of a single knife wound to the torso of the deceased after a physical altercation between them. The knife penetrated about 7-10cms into the deceased’s chest puncturing her right lung causing cardiac arrest following oxygen build up in the chest cavity outside the lung. Blunt force head injury and cocaine ingestion were contributory causes. The cocaine ingestion rendered the deceased more prone to cardiac arrest. There was no issue at trial as to cause of death. Exhibit D comprised the CCTV material and depicted the events leading up to the death of the deceased commencing at 5.51pm on Saturday 9 February 2013. Exhibit D also contained audio material commencing from a point following the collapse of the deceased when the applicant rang triple 0. There were two cameras and on occasion the same event is shown from two different angles. The CCTV material depicts an argument between the two women, after the deceased smashed a vase onto the floor. In the course of that argument, the deceased attacked the applicant in the lounge area, punching her and pushing her to the ground. The applicant was punched in the head and body and was kicked while on the ground. The deceased then moved away from the applicant and a short delay ensued while the applicant regained her feet. The applicant then attacked the deceased and although partly obscured, appeared to push her down onto a chair. Much of that struggle occurred off camera. Towards the end of that episode, the applicant picked up a four pack of V-drink and struck the deceased on the forehead. The applicant then moved quickly into the kitchen and took two large knives from a knife block. The applicant turned towards the deceased who slowly walked towards her with her hands by her side. The applicant is shown to wave the knives at the deceased twice and then stab her in the chest with the knife in her left hand. The applicant ran from the kitchen. The deceased collapsed onto a table, took four or five steps in the direction of the front door, before collapsing on the floor of the lounge room. The applicant rang triple 0 at 6.02pm and provided her address and phone number. She was shouting loudly and hysterically but hung up when the operator asked her for a second time what had happened. The operator called the applicant back at 6.04pm at which time the applicant was still acting in a highly emotional way. The audio from this telephone call was superimposed onto Exhibit D.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

HOEBEN CJ

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Ratio Decidendi

Legal Principle Established

Established by: HOEBEN CJ

The second submission was that it was not clear from the directions how the lies and conduct could be related to the actual offending in circumstances where their occurrence was not in dispute. In that regard, the applicant submitted that the jury should have been told that the lies and conduct were of very minimal probative value. This is particularly so when they could not be used to distinguish murder from manslaughter. The applicant submitted that at most, the lies and conduct could only be implied admissions of some general wrongdoing.Consideration This ground of appeal is not made out. When one looks at [11] and [12] of MFI 26 her Honour covered the issue raised by the applicant by offering an innocent explanation of the lies and conduct “such as panic or to protect herself against an unjust accusation”. Similarly, at [116] of the summing up, her Honour set out the applicant’s response to these lies and conduct as: “The defence case in relation to this issue is that the accused was in a state of panic and was at times hysterical. She believed that she would be unfairly blamed for the injury to the deceased …”. At [117] of the summing up her Honour observed:“For example, a lie may be told out of panic or to escape an unjust accusation.”See also [118] of the summing up at [19] hereof. In relation to the applicant’s second point, it is appropriately answered by the following directions in her Honour’s summing up:“114 … The Crown says that her conduct in cleaning the knives is also relevant because it served to remove her fingerprints and the deceased’s blood from the knives and indicate to anyone who came to the premises that the knives had not in fact been used to kill the deceased. The Crown says that her conduct shows great presence of mind and also that it shows a consciousness of guilt of culpable homicide because she appreciated that she had not acted in self-defence, but rather out of aggression.115 … The Crown says further that the detail with which the accused embellished the lie as the evening wore on puts paid to the explanation that the accused was panicking because she was relatively calm for the time she was at the Police Station, apart from the time when she learned that the deceased was dead, when she cried and banged her head.” It is clear that the directions on lies and other conduct appropriately addressed the issues before the jury and identified the limitations on how the evidence could be used.Ground 3 – The verdict is unreasonable or the applicant is otherwise entitled to an acquittal. This ground of appeal raises the same issue as Ground of Appeal 1. It relies upon the proposition that because the jury acquitted the applicant of murder it must have determined favourably to the applicant the reasonableness of her conduct and so she was entitled to the same finding on the issue of manslaughter by excessive self-defence. It was on this basis that the applicant submitted that the verdict was unreasonable. The applicant submitted that had the jury not been erroneously invited to reconsider excessive self-defence, the applicant would have been entitled to an outright acquittal.