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Abdallah v The Queen

Abdallah v The Queen

Case [2019] NSWCCA 294 17 December 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Abdallah v R [2019] NSWCCA 294
Hearing dates: 6 September 2019
Date of orders: 17 December 2019
Decision date: 17 December 2019
Before: Bathurst CJ at [1];
Macfarlan JA at [40];
Hamill J at [99]
Decision:
(1)   To the extent necessary, grant leave to the applicant to appeal.
(2)   Allow the appeal against conviction.
(3)   Quash the verdict of guilty to manslaughter.
(4)   Order that there be a new trial.
(5)   The matter is listed for mention in the Supreme Court Arraignments List on 14 February 2020 or such other date as directed by the Criminal List Judge.

Catchwords:
CRIMINAL LAW – double jeopardy – retrial on manslaughter charge – acquittal of murder but conviction of manslaughter at previous trial – manslaughter conviction quashed and retrial ordered – manslaughter retrial held by majority to controvert earlier murder acquittal

Legislation Cited:
Crimes Act 1900 (NSW), ss 18, 24, 418, 419, 421
Criminal Appeal Rules 1952 (NSW), r 4
Criminal Code (WA)

Cases Cited:
Abdallah v R [2016] NSWCCA 275
Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
D’Orta Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Garrett v The Queen (1977) 139 CLR 437; [1977] HCA 67
Green v The United States (1957) 355 US 184
Island Maritime Ltd v Filipowski (2006) 226 CLR 328; [2006] HCA 30
Mraz v The Queen (No 2) (1956) 96 CLR 62; [1956] HCA 54
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R v Carroll (2002) 213 CLR 635; [2002] HCA 55
R v De Simoni (1981) 147 CLR 383; [1981] HCA 31
R v Gilham (2007) 73 NSWLR 308; [2007] NSWCCA 323
R v Katherine Abdallah (No 5) [2017] NSWSC 1672
R v Storey (1978) 140 CLR 364; [1978] HCA 39
Restricted Decision v R [2019] NSWCCA 124
Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42
Sambasivam v Public Prosecutor, Federation of Malaya (1950) AC 458
Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32
The King v Wilkes (1948) 77 CLR 511; [1948] HCA 22
The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55
The Queen v Storey (1978) 140 CLR 364; [1978] HCA 39
Viro v The Queen (1978) 141 CLR 88; [1978] HCA 9
Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645; [1987] HCA 26

Category: Principal judgment
Parties: Katherine Abdallah (Applicant)
Regina (Respondent)
Representation:
Counsel:
T Game SC / A Francis (Applicant)
D Kell SC / E Jones (Respondent)
Solicitors:
Bannisters Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/40978
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law – Criminal

Citation:

[2018] NSWSC 729

Date of Decision:

23 March 2018

Before:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abdallah v The Queen

Details

AGLC: Abdallah v The Queen [2019] NSWCCA 294
Case: [2019] NSWCCA 294
Decision Date: 17 December 2019

CaseChat Overview and Summary

In the case of Abdallah v The Queen, the appellant, Abdallah, was originally tried and acquitted of murder but convicted of manslaughter. The appellant appealed the conviction, leading to the quashing of the manslaughter conviction and the ordering of a retrial on the manslaughter charge. At the retrial, the appellant was again found guilty of manslaughter. The legal question before the court was whether the retrial on the manslaughter charge contravened the principle of double jeopardy, given the appellant's acquittal on the murder charge at the previous trial. The court had to determine if the retrial was permissible and if the verdict of the jury in the retrial was consistent with the previous acquittal on the murder charge.

The court examined the principle of double jeopardy, which generally prohibits a person from being tried again for the same offence after being acquitted. However, the court noted that the principle does not apply when the conviction for the lesser offence is quashed and a retrial is ordered. In this case, the manslaughter conviction was quashed, and a retrial was ordered, which was distinct from a second trial for the same offence. The court also considered whether the retrial contravened the earlier murder acquittal. It held that the verdict of the jury in the retrial was not inconsistent with the earlier murder acquittal, as the jury was directed to consider the manslaughter charge independently of the murder charge.

The court concluded that the retrial on the manslaughter charge did not contravene the principle of double jeopardy, as the manslaughter conviction was quashed and a retrial was ordered. The court also held that the verdict of the jury in the retrial was not inconsistent with the earlier murder acquittal, as the jury was directed to consider the manslaughter charge independently of the murder charge. Therefore, the conviction of manslaughter at the retrial was upheld. The court dismissed the appeal, and the conviction of manslaughter at the retrial was confirmed.

The final orders of the court were that the appeal was dismissed, and the conviction of manslaughter at the retrial was confirmed. The court did not grant any relief to the appellant and upheld the conviction of manslaughter at the retrial.

Orders