Hassan v The Queen

[2018] NSWCCA 213

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Hassan v R [2018] NSWCCA 213
Hearing dates:	21 March 2018
Date of orders:	03 October 2018
Decision date:	03 October 2018
Before:	Bathurst CJ at [1]; Johnson J at [287]; Price J at [288]
Decision:	(1)   Grant the applicant leave to appeal.  (2)   Dismiss the appeal.
Catchwords:	CRIMINAL LAW – Sentence – Standard of proof for finding facts adverse to the offender – whether sentencing judge made findings of fact adverse to the offender beyond reasonable doubt – whether it was open to sentencing judge to make findings beyond reasonable doubt
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Anderson v The Queen [2018] NSWCCA 49 Biddle v The Queen [2017] NSWCCA 128 Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 R v Anderson [2016] NSWSC 399 R v Greene [2001] NSWCCA 258 R v Hassan [2014] NSWSC 280 R v Isaacs (1997) 41 NSWLR 374 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Pham (2015) 256 CLR 550; [2015] HCA 39 R v Storey [1998] 1 VR 359
Category:	Principal judgment
Parties:	Yassir Ibrahim Mohamed Hassan (applicant) Crown (respondent)
Representation:	Counsel: R Rodger (applicant) A Mitchelmore (respondent)   Solicitors: O’Brien Criminal and Civil Solicitors (applicant) Solicitor for Public Prosecutions (respondent)
File Number(s):	2012/122408
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Criminal Citation: [2014] NSWSC 280 Date of Decision: 21 March 2014 Before: Garling J File Number(s): 2012/122408

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 6 December 2013, a jury found the applicant guilty of the manslaughter of Mariam Henery Yousif (the deceased) after a trial in the Supreme Court of New South Wales. On 21 March 2014, the applicant was sentenced to a term of imprisonment of 12 years with a non-parole period of 9 years for this offence. The applicant sought leave to appeal against this sentence on grounds relating to the findings of fact made by the sentencing judge and on the ground of manifest excess.

The evidence at the trial established that the applicant and the deceased had been married in Sudan and had several children together. In 2008, they moved to Australia with their children. They stayed with the deceased’s family in Melbourne for several weeks before moving to a unit in Sydney. The evidence established that the relationship between the applicant and the deceased then deteriorated over the following years. Ultimately, on the evening of 17 April 2012, the police were called to the unit by the applicant and they found the body of the deceased on the floor of the main bedroom. The evidence concerning what occurred on that evening was disputed at trial.

The sentencing judge found that, after the applicant had returned to the unit from work that afternoon, there were a number of verbal arguments between the applicant and the deceased, which caused the deceased to become “upset and scared” of the applicant. He found that, during these arguments, the deceased said something to the applicant which caused him to “lose his self-control” and assault the deceased with a knife after she had gone to bed that evening. He found that the deceased died as a result of receiving at least 14 stab wounds in the course of this assault. The sentencing judge therefore sentenced the applicant for the manslaughter of the deceased on the basis that it occurred as a result of “a low level verbal provocation which was shortly thereafter followed by an excessively violent and brutal attack”. On the appeal, this was referred to as the “critical finding”.

The issues on the appeal were:

1   Whether the sentencing judge erred by failing to find beyond a reasonable doubt that the applicant was guilty of the manslaughter of the deceased on the basis of the critical finding;

2   Whether it was open to the sentencing judge to find beyond a reasonable doubt that the applicant was guilty of the manslaughter of the deceased on the basis of the critical finding; and

3   Whether the sentence imposed was manifestly excessive.

Whether failure to make critical finding beyond reasonable doubt

(i)  The sentencing judge did not err by failing to find beyond a reasonable doubt that the applicant was guilty of the manslaughter of the deceased on the basis of the critical finding. When read in the context of the judgment as a whole, the sentencing judge made the critical finding beyond reasonable doubt: [254]-[256] (Bathurst CJ); [287] (Johnson J); [288] (Price J).

R v Olbrich (1999) 199 CLR 270; [1999] HCA 54; R v Isaacs (1997) 41 NSWLR 374, referred to.

Whether open to make critical finding beyond reasonable doubt

(ii)   It was open to the sentencing judge to find beyond a reasonable doubt that the applicant was guilty of the manslaughter of the deceased on the basis of the critical finding. The sentencing judge was entitled to reject the version of events put forward by the applicant in light of the other evidence led by the prosecution at trial: [261]-[272] (Bathurst CJ); [287] (Johnson J); [288] (Price J).

Whether sentence was manifestly excessive

(iii)   The sentence imposed was not manifestly excessive. The applicant had not demonstrated that the sentence was “unreasonable or plainly unjust”. Neither the sentencing table nor the cases relied upon by the applicant were of assistance in determining whether the sentence was manifestly excessive in the circumstances of this case: [279]-[283] (Bathurst CJ); [287] (Johnson J); [288] (Price J).

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45; R v Pham (2015) 256 CLR 550; [2015] HCA 39, referred to.

(iv)   In domestic violence offences of this nature, general deterrence, community protection and denunciation are important in sentencing. Courts must make clear that such domestic violence will warrant severe punishment: [284] (Bathurst CJ); [287] (Johnson J); [288] (Price J).

Judgment

1. BATHURST CJ: Yassir Ibrahim Mohamed Hassan (the applicant) was charged for the murder of his wife Mariam Henery Yousif (the deceased) on 17 April 2012. On 6 December 2013, following a trial before a jury, he was found not guilty of murder of the deceased, but guilty of manslaughter. On 21 March 2014, the applicant was sentenced by the sentencing judge to a total term of imprisonment of 12 years with a non-parole period of 9 years: R v Hassan [2014] NSWSC 280.

2. In sentencing the applicant, the sentencing judge proceeded upon the basis that the manslaughter of the deceased occurred as a result of what he described at [55] as a “low level verbal provocation which was shortly thereafter followed by an excessively violent and brutal attack”.

3. The applicant has sought leave to appeal against his sentence. The principal proposed grounds of appeal were that the sentencing judge failed to make the finding to which I have referred to at [2] above beyond reasonable doubt, or alternatively, that the finding was not open to be made beyond reasonable doubt.

4. Having regard to the proposed grounds of appeal and the submissions made by the parties, it is necessary to consider the evidence led at the trial in some detail. It is convenient to do so by reference to the evidence of the critical witnesses in the order in which they gave evidence at the trial.

The Crown case

(a)   Senior Constable Jane Josephs

5. Senior Constable Josephs was a “crime scene officer” who first examined the scene of the offence at a unit on Alice Street, South Wiley Park (the unit) on 18 April 2012. She stated that, on her arrival at 1:30am, she saw the deceased on the floor of the main bedroom, “lying between the dresser and the mattress”.

6. Senior Constable Josephs said that the deceased was “lying on the left side of her back facing north with her right leg behind the door and her face against the side of the lower mattress”. She said that the deceased was “only wearing a pair of underpants which were bloodstained and a blue bloodstained pyjama top was over her left arm and shoulder”. She said that there were bloodstains on “most of her body”, including her face. She said that she saw that there were no bloodstains on the sole of her right foot. She described a wound to the left thoracic area, one on her right breast, one below her right breast and one under her right arm. When the deceased was rolled onto her front, she observed a “long cut” along the right side of her back.

7. Senior Constable Josephs said that the floor of the bedroom was carpeted with “a light brown carpet and a mustard and green floral floor mat”. She said that the carpet and the mat had numerous blood stains on them and that she saw a “partial bare right footprint in blood on the carpet facing the hallway”. She said that the room was “crowded” and that two double-bed mattresses were “stacked on top of each other against the western wall”. She said that she saw “patches of blood staining on the edge of the lower mattress”. She said that the bed was unmade and had a “black and white and pink floral frilled quilt cover”. She said that she could see some areas of blood staining on the frilled edge. She said that a “pink and fawn floral patterned blanket and a red and pink floral patterned blanket were bundled together on the south-eastern corner of the bed closest to the door”. She said that she saw a “red stain” on the pink and fawn blanket.

8. Senior Constable Josephs said that, behind the bedroom door, she saw “three pieces of red coloured tissue stuck to the lower half of the door”. She said that she also saw an area of bloodstains “near to the bottom hinge side of the door”. She said that, on the wall on the south-eastern corner of the room, she saw another area of bloodstains.

9. On 24 April 2012, Senior Constable Josephs said that she undertook an examination of the bedding and the blankets from the bedroom. In relation to the pink and red blanket, she saw that it was stained and there were “three holes through the blanket in the bottom right-hand corner”. She said that there was a “red stain” adjacent to the first hole which testing “indicated positive for the possible presence of blood”. She also said that there was no stain beside the second hole, while a red stain beside the third hole also “indicated positive for the possible presence of blood” after testing. She also said that she then examined the pink and fawn blanket which she said had “many areas of red staining on both sides”. Once the blanket had been laid out, she identified “16 holes of varying lengths in the fabric”.

10. On 25 April 2012, Senior Constable Josephs said that she examined a white and blue jacket taken from the unit. She said that she saw a number of areas of red staining on the front of the jacket with the majority being on the front left side. She said that there were “smaller red spots” on the front right and also some “diluted” stains. She said that the front side of the left arm had red stains on “the white area from the elbow to the cuff and on the blue section of the arm, around the cuff and inner seam”. She also saw some “dark coloured” stains on the blue material around the armpit area. She said that tests of the stains indicated “positive for the presence of human blood”. She said that she took blood swabs from the areas and that the DNA recovered had the same profile as the applicant. She agreed that the jacket was not “in any way damaged”.

11. Senior Constable Josephs then said that she conducted an examination of a pair of black jeans. She said that she examined the outside of the jeans for the presence of blood and saw “nothing of interest”. However, when she turned the jeans inside out, she saw an area of red staining which ultimately tested “positive for the presence of human blood”. She said that she then turned the jeans over to examine the rear inside surface and saw a red stain on the rear pocket area of the right leg and a second stain just above the rear pocket of the left leg. The first stain tested “positive for the presence of human blood” and she then collected a swab. She said that testing of the DNA recovered showed that the major component had the same profile as the deceased while the minor component had the same profile as the applicant.

12. Senior Constable Josephs next examined a pair of grey boxer underwear which she understood was the underwear that the applicant was wearing when he was arrested on 17 April 2012. She said that she saw two areas of red stains on the front right of the underwear and two “small red stains” on the bottom hem of the left leg. She also said that she saw three red stains on the upper right side of the rear of the underwear. These stains tested “positive for the presence of human blood”.

13. On 10 May 2012, Senior Constable Josephs conducted a further examination at the unit. She said that she examined the northern wall of the hallway and saw a pale red blood stain which tested “positive for the presence of human blood”. She said that she collected a swab from the stain and that testing of the DNA recovered revealed that the major component had the same profile as the applicant and the minor component the same profile as the deceased.

14. Senior Constable Josephs then conducted and examination of the bedroom in which the deceased was found and saw that the double bed mattresses had been placed back down on the floor. She said that she observed a brown coat and a pair of black cargo pants on the corner of the bed nearest the door. Senior Constable Josephs then said that she examined the top surface of the mattress and saw no damage but did see “a long area of damage on the edge”, which she stated “did not appear to be a recent occurrence”. She said that she saw a number of small pale red coloured stains, a single red stain nearest to the south side of the mattress and two further stains. Tests indicated that the latter two stains were blood stains. She said that she collected a blood swab from each of those stains and that testing of the DNA recovered had the same profile as the deceased.

15. Senior Constable Josephs then examined the dresser in the bedroom. She said that she saw the top drawer on the eastern side had a red stain which tested “positive for the presence of human blood”. She collected a swab from the stain. She also saw a blood stain on the eastern end of the dresser which also tested “positive for the presence of human blood”. She took a swab from this stain. The major component of the DNA recovered from both stains had the same profile as that of the deceased, with other DNA from at least one other individual being present.

16. On 12 May 2012, Senior Constable Josephs gave evidence that she examined a pair of black underpants collected at the post mortem of the deceased on 18 April 2012. She noted that they were “very heavily bloodstained with the greatest amount on the front and rear right sides”. She observed that no areas of damage were cut in the underpants.

17. She then said that she examined a bloodstained pyjama top collected at the post mortem of the deceased. She saw that it was “very heavily bloodstained with congealed blood on the inside surfaces”. She said that she saw a “cut from the lower right hem up the centre to the neck line and across to the hem”. However, she said that this was “typical of cuts made by ambulance officers in rendering medical aid”. She said that she also saw 17 holes in the front of the top. On the same day, she said that she examined some clothes she found in the washing machine at the unit, namely, a pair of black coloured jeans. She stated that they had tested negative for the presence of blood.

18. On 24 July 2012, Senior Constable Josephs examined the floral doona cover from the bedroom in which the deceased was found. She said that she first examined what she identified as “side A”. She said that she saw “visible bloodstains on the frill on the right side and from there across the cover in patches to the third row of flowers”. She said that the stains ran “nearly the entire length of the doona cover from top to bottom on the left side”. She also noted a “small frayed tear in the right side frill approximately in the middle of the largest bloodstain”. She said that she also saw an “L-shaped frayed tear on the right side frill towards the bottom of the cover”.

19. She then examined the other side of the doona cover and saw bloodstains on the frill corresponding to those noted on the first side, although they were “smaller in size”. She said that she only saw one blood stain on the cover itself, but that it corresponded with the stain on the other side of the cover. A test of the stain indicated “positive for the presence of human blood” and she collected a blood swab. She referred to the blood on the frill of the doona cover, and by reference to a photograph, agreed that the body of the deceased was lying immediately below it.

20. On the same day, Senior Constable Josephs conducted a further examination of the two blankets which she had first examined on 24 April 2012, as I have noted at [9] above. She said that, on the pink and red blanket, she saw three areas of dark staining. The first stain tested “positive for the presence of human blood” and she collected a swab. The others tested negative. She said that she then examined the other side of the blanket and observed two dark stains in “close proximity” to each other. She tested one of these, and the test indicated “positive for the presence of human blood”. She said that she saw another dark stain in the bottom left hand corner of the blanket, which also tested “positive for the presence of human blood”. She collected a swab from each of these stains. She said that testing showed that the DNA recovered from the stains on the first side of the blanket she examined originated from two individuals, with the major component containing the same profile of the deceased. Of the swab taken on the other side, the major component had the same profile as the applicant.

21. Senior Constable Josephs said that she then conducted further examination for blood on the pink and fawn blanket. She said she saw the blanket had “many areas of dark staining on the tips of the fibres in the blanket”, adjacent to the holes she had identified in the blanket which I have noted at [9] above. She said that she saw a larger area of staining on the lower left edge of one side “near where the trim had been pulled away”. She performed a test for blood and it indicated “positive for the presence of human blood”. She said that she also saw a second area of staining on the tips of the blanket fibres on the top left hand corner of that side of the blanket. The test indicated “positive for the presence of human blood”. She collected a blood swab from both areas of staining.

22. Senior Constable Josephs then said that she examined the other side of the blanket and saw “numerous dark stains” on the left side adjacent to holes she had identified in the blanket. She said that they all appeared to be “smears across the fibres of the blanket”. In the bottom left-hand corner, she said that she saw a “small area with three small round dark stains” which looked “different in shape” to the other stains. She said that they tested “positive for the presence of human blood so she collected a blood swab. She said that the swabs taken from both sides of the blanket had the same profile as that of the deceased.

23. Senior Constable Josephs was shown a report obtained on behalf of the applicant from Ms Helen Roebuck, a forensic biologist consultant, in which Ms Roebuck was asked to examine both blankets, amongst other things. It was put to Senior Constable Josephs that the report stated that Ms Roebuck’s examination for the staining on the blankets was done without conducting any forensic testing, but rather, it was just a physical examination. She said that she agreed with that statement. She also agreed that Ms Roebuck’s examination was done “only recently in the last few weeks”. She also agreed with Ms Roebuck’s statement in the report that none of the stains on the blanket had a “saturated” appearance.

5. In cross-examination, Senior Constable Josephs agreed that she examined the applicant’s jacket and underwear and that the DNA recovered from each of those items was his and that none of her investigations revealed any blood of the deceased on either the jacket or the underwear.

(b)   Senior Constable Lauren Jarman

25. Senior Constable Jarman gave evidence that, at about 11:20pm on 17 April 2012, she attended the unit. She said that she saw the applicant at the front door and, after entering the house, asked what had happened. The applicant said, “I have problems with my wife.” Senior Constable Jarman said that she asked, “Where is your wife?” to which the applicant replied “Here, here” and took her to the bedroom in which the deceased was found.

26. Senior Constable Jarman said that she observed blood on the applicant’s jacket as he took them to the bedroom. She said that, after she had reached the bedroom, she took a step inside the room and saw a female lying on the ground. She said that the female was next to “a double bed which was a mattress on top of an ensemble”. She said that the female was lying on her stomach with her left arm underneath her chest. Her legs were together and “facing behind the bedroom door”. She said that the female was wearing a pair of underpants and a blue t-shirt.

27. Senior Constable Jarman said the female was not breathing and not responding to her. She said that she observed numerous stab wounds to her body, “specifically on the back of her upper right leg, her back, and what looked like defensive wounds on her forearms”.

28. Senior Constable Jarman said that she had a conversation with the applicant. She said that she asked him “Did you do this to her?”, and the applicant responded “Yes”. She said that she then asked him “What with? What with?” and the applicant said “A knife”. She said that she asked him “Where is the knife?”, and the applicant said “In the safe”. Senior Constable Jarman said that she walked back into the bedroom and again attempted to roll the female over. She said she could see a large pool of blood underneath the female and, when she was moving her, observed further stab wounds to her stomach. She also observed a “tissue substance” protruding from a stab wound on her stomach.

(c)   Senior Constable Steven Watson

29. Senior Constable Watson attended the unit at about 11:30pm on 17 April 2012. He was informed the applicant had been arrested and that he had been cautioned. He said that he had a short conversation with him in the following terms.

30. Senior Constable Watson said that he asked the applicant “What happened between you and your wife?”. He said that the applicant said “I have very big problems with my wife, long big problems. I have so much stress”. Senior Constable Watson asked him “Did you attack your wife?”. He said that the applicant said “We had a big fight”.

31. Senior Constable Watson said he made a “cursory search” of the kitchen drawers. He said that he could not locate any bloodstained knife, although he noted that there was a “large clean kitchen knife” on the drying rack next to the sink.

(d)   Constable Sasha Cuffe

32. Constable Cuffe gave evidence that, at 12:50am on the morning of 18 April 2012, the applicant was taken by ambulance to Canterbury Hospital. She said that she drove a police car behind the ambulance. She said that she saw the applicant being treated by a doctor, Dr Rose Sacca, and that, when Dr Sacca took off a bandage from the applicant’s left arm, she saw a laceration.

33. She said that Dr Sacca left the applicant and the ward and returned with a Canterbury Hospital security guard, Mr Hayder Dayoub, who spoke Arabic. Dr Sacca asked the applicant, using the security guard as an interpreter, how he got the cut. The interpreter translated the applicant’s response as “My wife did it”. Constable Cuffe said that the applicant subsequently stated, through the interpreter, that “his wife was trying to stab herself with the knife and he had gone to grab the knife and had got a cut on his left arm”.

34. Constable Cuffe acknowledged in cross-examination that none of this conversation took place in English.

(e)   Dr Rose Sacca

35. Dr Sacca gave evidence that she was the Senior Resident Medical Officer at Canterbury Hospital. She said that she saw the applicant in the Emergency Department on the morning of 18 April 2012.

36. Dr Sacca described the applicant as having a “superficial laceration” to his left forearm. She said that it was “about 10 centimetres” in length, and was “approximately halfway under the forearm”. She said that it was “crossed the surface of the forearm in an open, diagonal fashion with the left side”, the “outer surface of the arm being further away from the end of the arm” and the “edge of the side that was on the inside of the forearm being closer to the hand”.

37. Dr Sacca said that the laceration “appeared to consistent [sic] of three different depths, although still being superficial”. She said that “the side on the outer edge of the forearm was the deepest and the edges were quite gaping”. She said that they required stitches. She said that “the part in the middle of the laceration was, whilst still continuous, very superficial like a deep scratch”. She said that, finally, “the last part of the wound, was again a little bit deeper than a scratch, but not as deep as the first part and that required some sticky plasters or small little bandages”.

38. Dr Sacca said that she asked the applicant through an interpreter, a security guard working at the hospital, how he sustained the injury. She said that she had recorded on her notes that the applicant had said, through translation, that “left arm injured when his wife, who was trying to kill herself with a knife, then attacked him”.

(f)   Hayder Dayoub

39. Mr Dayoub was the security guard used by Dr Sacca as an interpreter on the morning of 18 April 2012. In the Emergency Department, he said that he saw a man on the bed who had an injury to his arm. He described the injury as “about 2 centimetres high” on the left arm before stopping, and then “another 2 centimetres” before stopping again, and then “another 2 centimetres”, like “a broken line”. He said that the first section was “very deep”, about 1.5 cm. He said that the second one was “deep, same thing” and that the last one was “a bit shallow”.

40. Mr Dayoub said that Dr Sacca asked him to ask the man what had happened, and the man replied “my wife tried to kill herself with a kitchen knife and I tried to take the knife; she slashed my left arm” or “my arm”.

(g)   Dr Rianie Janse Van Vuuren

41. Dr Van Vuuren was a forensic pathologist. On 18 April 2012, she said that she went to the unit to examine the deceased and on the same day carried out an autopsy on the deceased. In her autopsy report of 19 September 2012, she recorded the cause of death as “multiple stab wounds”. Dr Van Vuuren made the following observations in that report.

42. Dr Van Vuuren said that the post-mortem examination showed a stab wound on the back with the track of the wound extending in between the ribs of the back into the lung, the diaphragm, the liver, the inferior vena cava, which she described as “the big blood vessel that transports the blood from your legs back to your heart” and the kidney.

43. Dr Van Vuuren said that this wound was “quite significant because it went through the inferior vena cava”, which she described as “a really big blood vessel”. She said “you would bleed from it, although slowly” and that it could cause death. She stated that the bleeding she described would be internal bleeding.

44. Dr Van Vuuren also described a stab wound on the right side of the chest with the track of the wound extending in between the ribs of the back into the right lung. She said that a stab wound was also present at the top of the stomach area extending through the right lower lung, the diaphragm and into the liver. She also described a stab wound extending through the right breast tissue and two stab wounds present on the left chest extending into the cavity surrounding the lungs.

45. She also said that a stab wound was present on the left side of the upper stomach extending into the liver, the stomach and in between the stomach and the spleen. She described two more stab wounds present on the left shoulder and right leg with “superficial tracks”. She said that multiple stab wounds were also present on the left upper leg and hip which extended superficially through muscles and other soft tissues.

46. Dr Van Vuuren also observed what she described as “self-defence injuries” on the hands and “on the dorsal aspect” of the left arm. She said that self-defence injuries “are very superficial and are in places that you would expect people [to be injured] when they … defend themselves”.

47. Dr Van Vuuren also noted that there was a stab wound on the right chest with a track extending underneath the right nipple to the top of it. She also referred in the autopsy report to a stab wound on the left upper shoulder which she described as a “superficial” stab wound.

48. Dr Van Vuuren described another stab wound as one underneath the left armpit extending to the front and a small stab in the space between the ribs, and also identified a stab wound on the left side of the chest and one underneath the left breast. The track of the latter wound extended through the ribs, into the left lung, into the sac containing the heart, and then into the left ventricle of the heart. She said that this was the wound which “probably” killed the deceased.

49. Dr Van Vuuren described a number of other stab wounds in her autopsy report and she said that her evidence had summarised the more significant ones that she had noted. She said that, at a minimum, there were at least 14 stab wounds, but that there “could be more if you count the hands and arm injuries” as well. She also agreed that, when someone is stabbed multiple times, it is “common to find a lot of blood inside the body”.

50. Dr Van Vuuren later described what she saw on the hands of the deceased. She identified four wounds: one on the right hand and three on the left hand. She said that they were “superficial cuts to the hands” which could occur “when the person tried to grab the knife or tried to protect the hands from the stab wounds”.

51. Dr Van Vuuren was then asked to consider two scenarios by the prosecutor. In that context, she gave this evidence:

“Q. Doctor, I want to put to you two scenarios and ask your opinion about them. Firstly, the first scenario is if the deceased was stabbed through those blankets with a knife with a 15-centimetre blade and it occurred at a time when the deceased was not unconscious the entire time she was stabbed. In other words, she was not unconscious while all the stab wounds occurred, but rather she has either woken up, awake and struggling with the stabber until such time as she has overcome from the wounds falling on to the floor. But the first scenario, doctor, I want you to understand it’s a circumstance where the deceased is stabbed through the blanket, do you understand that?

A. Yes.

Q. The second scenario is a situation where the deceased is again stabbed with a knife with a 15-centimetre blade, but she’s stabbed directly and not through the blankets, do you understand that?

A. Yes.

Q. In the second scenario she is stabbed until such time as she falls down and comes to be on the floor and she is then covered with the blankets, do you understand that?

A. Yes.

Q. You having visited the scene on the morning of the 18th, you can recall, can’t you doctor, where the deceased was found on the floor in the bedroom in the unit?

A. Yes.

…

Q. Ms Roebuck in her report has offered the opinion that she would have expected the blanket to have been saturated if the blanket had been in contact with a person who has a freely bleeding injury. Do you understand that is what Ms Roebuck said?

A. Yes

Q. When you consider those two scenarios what if any factors would you expect to affect the amount of blood that would come on to the blankets, firstly in scenario one where a person, such as the deceased, is stabbed through the blanket?

A. First of all I am not a blood spatter analyst expert. But what I would expect is if the blanket was on top of the body and the deceased moved and you can’t say how long the blanket was in contact with the body, so it could be that the deceased was stabbed a few times quickly and before she really started bleeding the blanket was removed. So you can’t expect any blood on there. Or it could be that even if the deceased was stabbed a few times and she moved and she got up and then the blanket would fall off, that would not be in direct contact with the body as well.”

52. Dr Van Vuuren then elaborated on those answers. She agreed that the “position of the deceased and her movements” could affect how much blood came to be on the blankets. She said that, if the blanket was on top of the body, then “you would expect less bleeding than on the back, because of gravity” and, if the blanket was folded, then “some areas would contain more blood than others”. She agreed that this would also occur if “the deceased was not just lying down”, but when she was “getting up, or standing up at the time the blanket is between her and the stabber”. She then gave the following evidence:

“Q. You have given evidence that there were a minimum of 14 stab wounds?

A. Yes

Q. Over what period of time would they have occurred?

A. They have would probably occurred in a very short time. So, like I said previously, not necessarily – she would not necessarily bleed very quickly when all the stab wounds were stabbed. So, if it is a short time, it is not necessary that the blanket was in contact with the body at the time; the whole time.

Q. Is that a third factor; the time that the deceased was in contact with the blanket during which she was stabbed in scenario one?

A. Yes.

Q. In scenario two, that is the scenario where the deceased was stabbed, not though the blanket, and was on the floor and the blanket was placed on her. What factors would there be to explain how much blood would come to be on the blanket that was on top of her body?

A. Thinking back to the crime scene, or the scene, there was more blood underneath the body. So, like I said previously, gravity would have pulled the blood down. So that is probably why there was not much blood on the body. Even if the blankets were placed on the body, after she was dead, even if the blanket was placed on the body after she was dead, even if the blanket was underneath her, you would expect more blood than if the blanket was on top of the body.

Q. Was there anything about the wounds that the deceased sustained that may also affect the blood that came out of her body when she was on the ground?

A. I think most of the wounds caused more internal haemorrhage than it would have caused external haemorrhage.”

53. In cross-examination, Dr Van Vuuren agreed that, if blood vessels in the body had been broken by the use of an implement inserted into the body, there would be blood on the implement while it was within the body and, once withdrawn, an amount of blood would be on the implement. She also agreed that some of the blood would remain on the implement after it was withdrawn from the body.

54. In cross-examination, Dr Van Vuuren was also shown photographs of the hands of the applicant and agreed that the location of two lesions on his hands was “characteristic of where you might find defensive wounds”. However, in re-examination, she said that the wounds that were shown “don’t really look like incisions”, but that they “look more like abrasions”. She said that, even if the position of the injuries was consistent with self-defence injuries, it did not mean that “abrasions always are self-defence, because you can get these injuries during normal day-to-day activities”. She said that an abrasion is basically “an injury to the superficial layers of the skin”. She described it as “basically the same thing as a scratch”. She said that the incisions that were described on the deceased were cuts which were “totally different from an abrasion”. She said that it was possible to get abrasions during self-defence injuries, but that the applicant had a knife. She said that the deceased had stab wounds that were “probably inflicted by a sharp instrument, like a knife”. She was then asked the following question by the sentencing judge and gave the following answer:

“Q. I was wondering; is there any particular part of the arm that is relevant in your consideration as to whether the wounds are defensive wounds?

A. Yes, usually if you defend yourself, first of all with the hands, (Indicated), you would try to grab the knife or you would try to protect yourself, (Indicated). That is why you would expect injuries on the hand. Also, when you get attacked, most people are trying to protect themselves in this way, (Indicated). So this is the area on the inside of the arm that is most likely that will be injured in the defence injuries, (Indicated), and this is where the incisions were. So if you protect yourself in this way, or this way, (Indicated), and were stabbed in that direction, (Indicated), you will see incisions in one area. Like I said, with the hands as well, if you try to grab the knife, you will get more incisions on the inside of the hand, but if you protect your face, like this, (Indicated), you will get injuries on the outside as well.”

(h)   Anna Zoe Wood

55. Ms Wood, who described her occupation as a “crime scene officer”, stated that, on 14 May 2012, she was handed a knife which had been collected from the crime scene. She said that she took a swab of blood from a rubber groove on the knife handle and a swab for trace DNA on that handle. She did a test for blood on the rubber groove of the knife handle and it came back “positive for the possible presence of blood”. She said that an analysis showed that the DNA recovered “appears to originate from two individuals”, who were the applicant and the deceased.

56. Ms Wood said that no blood was detected from the other swab on the knife handle which she took, but that the DNA recovered again “appears to originate from two individuals”, who were the applicant and the deceased.

(i)   Senior Constable Heath Woods

57. Senior Constable Woods gave evidence that he attended the unit on 17 April 2012 and searched the applicant. He said that, during the search, he rolled him to his right side and saw “a number of red smeared stains on the front of the white tracksuit jacket he was wearing”. He said that, as he rolled the applicant to his left side, he saw a laceration which he described “as being about 7 centimetres long and 3 millimetres wide”. He said that the laceration “appeared to run along the inside of the male’s forearm”. He noticed that the laceration was not bleeding.

(j)   Catherine Yousif

58. Ms Yousif was the deceased’s younger sister. At the time when she gave evidence, she was 15 years old.

59. Ms Yousif gave evidence that the deceased returned from “the Sudan” in 2008 and came to live in Australia with the applicant. She said that, at the time, she was living in Melbourne with her mother and father and that the deceased came to stay with them as well as her two children and the applicant. She said that the deceased stayed there “for a couple of months” before the applicant moved to Sydney. She said that the deceased and her children moved to Sydney “a couple of months” thereafter.

60. Ms Yousif said that, between 2008 and 2011, she visited her sister in Sydney “once or twice a year”. In December 2009, she said that the deceased came back to Melbourne to give birth to her third child and that she stayed with her and her mother “for a couple of weeks” before returning to Sydney. She said that she continued to have contact with the deceased by phone. She said that she would speak to her “every day, usually after she put the kids to sleep at night”.

61. Ms Yousif gave evidence concerning phone conversations in February and March 2012. She said that the deceased told her that “she had to always get permission from [the applicant] to leave the house” and that she “would have to call him on his lunch break, just during the day” and “every time she would go out”. Ms Yousif said that the deceased told her the applicant would beat her if she did not phone him during the day.

58. On 17 April 2012, Ms Yousif said that she went to school and she spoke to the deceased at about 8:00pm. She said that the deceased told her that “she had found a recording device under the master bedroom pillow”. She said that the deceased told her that she had broken the device. She said that the deceased sounded “very, very angry” and told her that this was the “third time” that it had happened. Ms Yousif said that she told the deceased to “calm down” and “ask her husband” about it. She said that the deceased responded that “she had spoken to him and that he denied it”.

59. Ms Yousif gave evidence of a further conversation around 10:00pm. She said that the deceased sounded “nervous” when she answered the phone and also “really upset”. She said that the deceased told her that the applicant had got home and was in his room and had not talked to her. She then said that the deceased told her she thought the applicant “would kill her”. She said that the deceased started crying and sounded “really, really upset”. She said that the deceased told her she wanted to come back to Melbourne with her kids and that she had “had enough of [the applicant] being jealous and rude”. She said that the deceased told her that she hated the applicant and could not “be with him any more because of what he was doing to her”.

60. Ms Yousif said that she had a later conversation with the deceased that night. In that conversation, she said that the deceased told her that she wanted her mother to call the applicant on his phone.

61. In cross-examination, Ms Yousif agreed that, after the deceased moved to Sydney, she came to visit her mother in Melbourne at times with her children without her husband and she would stay “for a weekend or a week” at her mother’s home.

62. Ms Yousif agreed that the deceased came to Melbourne for the birth of her third child and that she came without her husband. She also agreed that she and her mother would also travel to Sydney to visit the deceased and would stay at the deceased and the applicant’s unit in Alice Street. She agreed that the applicant was “always polite” to her when she was at the unit.

63. It was suggested to Ms Yousif that she spoke to the deceased after school on 17 April 2012 at around 3:30pm. She said that she could not remember that happening, but agreed that, if she did speak to the deceased, “nothing unusual” was said.

64. Ms Yousif was then asked about the first phone call at about 8:00pm on the evening of 17 April 2012. She agreed that it would be right that she described the deceased as being “very pissed off”. She was then asked about the later phone call at about 10:00pm, and she repeated that the deceased told her that she thought the applicant was “going to kill her”. Ms Yousif agreed that she said to the deceased that “he’s probably joking around, he isn’t going to do it”. At one point, it was put to Ms Yousif that the deceased did not tell her that the applicant had said that he was going to kill her and she agreed. However, immediately after, she said that the deceased did say that the applicant had said that to her.

65. Ms Yousif was then asked about a statement she made to the police and agreed that it was “about two weeks” after the deceased died and that matters were “fresh” in her memory. She agreed that, at the time when she made her statement, the fact that the deceased told her that the applicant said that he was going to kill her was something that was “stuck in [her] mind” and “was important”. It was put to her that there was nothing in the statement to the police to that effect nor was there anything to the effect that the deceased had “had enough of [the applicant] being jealous”.

66. It was put to Ms Yousif that, in her statement to the police, she had said “Cathy, I hate him. He is making me not want to love him any more. I don’t want anything to do with him after this. And I want to come back to Melbourne”. She agreed that this was what she told the police and that the deceased was “screaming” when she said it.

67. Ms Yousif was asked about her final conversation with the deceased and agreed that, in her statement to the police, she had said that she told the deceased that her mum was at the shops. She said that the telephone conversation between her and the deceased took “about 10, 20 minutes”. In cross-examination on this conversation, she said that the deceased told her again that she was “upset” and that the applicant would kill her, although she subsequently said that she could not recall her saying that in this conversation and that she could not remember what else was discussed in this conversation.

68. It was put to Ms Yousif that her phone records showed that she had a conversation with the deceased at 3:30pm for 11 minutes and 37 seconds. She said that she could not remember that phone conversation. It was also put to her that she had a telephone conversation at around 9:21pm which lasted for 17 to 18 minutes. She said that she could not recall that conversation.

69. Ms Yousif agreed that she was “very, very close” to the deceased. It was put to her, at the end of her cross-examination, that the deceased never said to her that the applicant had “threatened to kill her”. She said that she did not remember.

(k)   Hannan Zaki

74. Mrs Zaki was the deceased’s mother. She gave evidence that arrangements were made for the applicant, the deceased and their family to come to Australia in October 2008. She said that, when they first arrived in Melbourne, they lived with her, with the deceased staying with her for two months and the applicant for one month.

75. Mrs Zaki said that the applicant did not want her to get involved with the children when they were staying at her house in Melbourne. She said that she did not like the way that the applicant was “dealing with” her daughter and her children.

76. Mrs Zaki said that, after the deceased moved to Sydney, the deceased would visit her in Melbourne twice a year. She said that she would only come with the children and not the applicant. She said that the deceased also returned to Melbourne in December 2009 to give birth to a child.

77. In October 2011, Mrs Zaki said that the deceased returned to Melbourne with her three children. She said that the deceased told her that her husband had divorced her and that she was to go back to her mother. Mrs Zaki said that the deceased was “relieved” about being divorced because she felt that she was “always controlled” and “not happy”.

78. Mrs Zaki gave evidence that the deceased told her that she had found a “USB or MP3 recorder”. The deceased had told her that she listened to a recording and found that her and her mother were recorded talking over the phone. The deceased had told her that she found the recorder under her pillow.

79. Mrs Zaki said that the deceased left Melbourne to return to Sydney with the applicant after the applicant rang her and said, "Because I divorce you when I was upset so this one is not counted". Mrs Zaki said that the deceased did not particularly like it, but wanted to go back to live with him for the sake of the children.

80. In November or December 2011, Mrs Zaki said that she talked to the applicant about what the deceased had told her about her conversations being recorded. She said that she told the applicant that there was “no man that does that” and that he told her to “mind her own business”.

81. On about 14 or 15 April 2012, Mrs Zaki said that the deceased spoke to her and told her that the applicant “took the lock out of the door” of the main bedroom. Mrs Zaki said that the deceased told her that, when she asked applicant why he did that, he said that it was “because of the kids”. She said that she was “scared” because the bedroom was the room she went into when she was “scared or upset”. The deceased told her that she would “go inside and lock herself with the keys inside the room”.

82. On 16 April 2012, Mrs Zaki said that she spoke to the deceased on the phone and the deceased told her that she found another recorder and that she had broken it. The deceased again said that she had found the recorder under her pillow.

83. On the morning of 17 April 2012, Mrs Zaki said that she spoke to the deceased. She said that the deceased told her that she wanted to use the food processor and that she had found that the cord was cut. She said that the deceased told her that she thought that the applicant cut the cord “so when he record her, the sound of the processor would be recorded as well”. Mrs Zaki said that the deceased sounded “upset” because the applicant was still recording her.

84. Mrs Zaki then referred to a telephone conversation with the deceased which he said took place at 9:45pm on 17 April 2012. She said that the deceased rang, her other daughter Catherine picked up the phone, and that the deceased told her, “I want to speak to mum, quick”. Mrs Zaki said that she spoke to the deceased, who was “very upset”. She said that the deceased told her that her husband was “very upset” with her and that she thought that he “would kill her”. The deceased told her that her husband was in the bedroom near the bathroom at the time of the conversation. She said that the deceased told her that she was “afraid and scared” and wanted her mother to call the applicant and talk to him. Mrs Zaki said that she responded “Rubbish, go to your bedroom. He can’t do that”, but she said that the deceased kept insisting that her mother talk to the applicant on the phone. Mrs Zaki said that she told the deceased that she would ring the applicant but that she did not do so.

85. Mrs Zaki said that she was also told by the deceased that “she was getting money the next day from Centrelink and wanted to buy tickets to come back to her house in Melbourne” because she had “had enough” and was “very scared”.

86. Mrs Zaki was cross-examined on a statement that she had made on 20 May 2012. It was suggested to her that she was told that, if the applicant, the deceased and their family moved to Australia, she knew that it was “on the condition” that they would live in Sydney. She agreed that she thought that this condition was imposed by the applicant. She also agreed that, during the time that the applicant stayed with her in Melbourne, she had problems with him, mainly about dealing with the children. She said that the applicant would tell her to “mind your own business”.

87. It was suggested to Mrs Zaki in cross-examination that she spoke to the deceased on a number of occasions on 17 April 2012. She said the conversation concerning the food processor took place around 11:00am that day. She said that all she could remember of that conversation was that the deceased told her that the applicant “cut the cord of this food processor because she thinks he was recording her again”.

88. Mrs Zaki was shown a document entitled “Calls to and from the deceased’s mobile phone on 7 April 2012”, which showed a telephone call between her and the deceased at 10:06am which lasted for 6 minutes and 10 seconds and a call at 10:57am lasting 10 minutes and 58 seconds. She said that she could only recall the one conversation.

89. Mrs Zaki was asked about paragraph 31 of her statement of 20 May 2012. It was put to her that she made a statement at a time when the matters were “fresh” in her memory. However, she said that, after the shock that she had with her daughter, she did not think her memory was “accurate”.

90. Mrs Zaki was then asked about the fact that, in her statement of 20 May 2012, she said “Mariam called my phone”. It was put to her that she did not say that it could have been her phone or her daughter Catherine’s phone. She said that she remembered that it was her phone.

91. In cross-examination, Mrs Zaki was referred to her evidence-in-chief that the deceased had told her that the applicant said “I’m going to kill you” to her. She was then referred to her statement that she made on 1 May 2012, in which she said the following at paragraph 32:

“I said, ‘Why are you scared?’. Mariam said ‘He’s going to kill me’. I said ‘Rubbish, he can't do that’. Mariam said ‘Tomorrow I have my Centrelink payments coming, I will buy the tickets and come to Melbourne. Can you call him?’.”

92. It was put to her that, in that statement, she did not say that the deceased had told her that the applicant had said to her that he was going to kill her. After some inconclusive cross-examination, it was put to her that the first time she said that the deceased had told her that the applicant had said that he was going to kill her was shortly before she gave evidence. She responded that she had said that in her statement of 1 May 2012. It was ultimately put to her that the entire conversation with the deceased at about 9:45pmdid not happen and she denied this.

(l)   Dr Arafa Yehia

93. Dr Yehia stated that she was a general practitioner who looked after the deceased, the applicant and their three children. Referring to her records, she said that, in December 2011, she saw the applicant and the deceased and the applicant mentioned that the deceased was “nervous or edgy” around him, but was “fine with other people”. She said that she had a subsequent consultation with the deceased alone on 24 January 2012 and that the deceased told her that she was “still in a depressed mood”, so Dr Yehia said that she referred her to a psychologist. She said the deceased mentioned to her that the applicant was “recording her conversation at home”.

94. Dr Yehia said that she spoke to the applicant about this and the applicant had told her that he had been recording the deceased’s conversations, but that he did not give any reason why he did it.

(m)   Connie Corie Aldabra

95. Ms Aldabra gave evidence that she was a “scientific officer” with the New South Wales Police Force. She conducted what she described as “textile damage analysis” in relation to the two blankets. She was also provided with a knife for this purpose. There was no issue that it was the knife that was used in the stabbing.

96. Ms Aldabra said that the purpose of the examination was to determine “the nature of the damage in the blankets and if the knife created the damage”. She gave evidence that her examination of the pink and red blanket revealed four holes ranging in length from 10 mm to 47 mm, varying in shape from “an L-shape, curved, to relatively straight”.

97. Ms Aldabra said her examination of the pink and fawn blanket revealed 17 holes ranging in length from 12 mm to 32 mm, varying in shape from “a broad V or an L-shaped slightly curved, curved, relatively straight to straight”. She said the knife she was given was capable of putting holes “consistent with” the holes she saw in the two blankets. She stated that, in her opinion, the damage on the blankets was caused by the knife which she had been provided or by “a similar sharp implement”.

(n)   Karla Kiprovich

98. Ms Kiprovich gave evidence that she was a “scientific officer” with the New South Wales Forensic and Analytical Science Service. She gave evidence that she was provided with the pink and red blanket and the pink and fawn blanket and examined them for the purpose of comparing fibres recovered from a blade of a knife to fibres on those two blankets.

99. She gave evidence concerning her analysis and expressed the view that the results strongly supported the proposition that the “pink acrylic fibres recovered from the knife blade could have come from the [pink and red blanket]”, although she noted blankets are “mass produced”.

(o)   Clinton Mark Cochrane

100. Mr Cochrane gave evidence that he was a “senior forensic biologist” at the Division of Analytical Laboratories in Lidcombe. He gave evidence that the knife which he had been given was tested in 11 different areas.

101. Mr Cochrane said that the first test was on a “logo/label on the handle”. He said that there was a “positive screening test for blood” and that the DNA recovered was a mixture that appeared to originate from two individuals and that the applicant and the deceased “cannot be excluded as contributors”. He gave similar evidence in respect of a sample taken from the “bottom of the handle guard” of the knife.

102. Mr Cochrane also gave evidence of a sample taken from the “right side of the blade at bottom of the handle/blade edge”. He said that the only DNA that was recovered was the DNA that had the same profile as the deceased. He said that the same result came from a sample on the “right side of the blade at the top of the handle/blade edge”.

103. Mr Cochrane also said that a swab taken from the “right side of the blade” gave a “positive screening test for blood”, and that the DNA recovered had the same profile as the deceased. A similar result was obtained from a swab taken on the “left side of the blade”.

104. In relation to the “end of the handle on the knife”, Mr Cochrane said that the DNA recovered was a mixture that originated from at least two individuals. He said that the major component had the same profile as the applicant and that the minor component had the same profile as the deceased. The same result was obtained from a swab on the “right side of the handle”.

(p)   Detective Senior Constable Bronwyn Clarke

105. Detective Clarke said she was the “officer-in-charge” of the case. She gave evidence that she was the person who took the statement of 1 May 2012 from Mrs Zaki. In cross-examination, she acknowledged that the statement did not say that the deceased told Mrs Zaki that the applicant had said to the deceased “I will kill you”. She said that she did not recall Mrs Zaki using those words but rather that the deceased had said “He is going to kill me”.

The ERISP

106. Detective Clarke conducted an ERISP with the applicant on 18 April 2012. The ERISP and a transcript were tendered by the Crown at the trial. The copy of the transcript tendered at the trial was an amended copy of an earlier transcript with revised translations of some of the applicant’s responses. These revisions were set out in bold and were underlined.

107. I have set out the questions and answers from the transcript which are relevant to the present proceedings below:

“Q39   O.K. Yassir, can you tell me what happened tonight?

A (Int):   Basically, my wife and I always had arguments. She makes something out of nothing. She treats the children a harsh treatment.

...

Q73   What time did you come home?

A (Int):   Approximately 4 o’clock.

Q74   And what happened when you got home?

A (Int):   She had some things, electrical things and they got wrecked from her. She has accused me of wrecking those electrical, those things.

Q75   Yeah. What else happened?

A (Int):   She always takes out her problems on the children. Always, any problem between me and herself, she takes out on the children. She grabbed my son and hit him. My older son, Salih, and hit him.

…

Q77   Yes. And then what happened?

A (Int):   I started talking to her, talking over and over. She started yelling and talking ---

Q78   Yep.

A (Int):   I was talking to her and started swearing at me.

Q79   Yep. Then what happened?

A (Int):   And she said, ‘I’m going to commit suicide.’

Q80   Yeah.

A (Int):   So she took, she went and took a knife ---

Q81   Yes.

A (Int):   --- and I was sitting in the room so she went and hit me on, showing left arm. So she done it a few times, she took a knife out and she threatened me with it.

Q82   Yes?

A (Int):   So I took the knife off her.

Q83   Yes?

A (Int):   So she started hitting me. I could not um, um, put up with that so I hit her with the knife.

Q84   Yes? Anything else happened?

A (Int):   And then I rang the ambulance and I rang the police.

…

Q106   O.K. So what were you arguing about when you came home at 4 o’clock this afternoon?

A (Int):   Prior, prior to me arriving home she is by the phone.

Q107   And what was she start, what was she saying?

A (Int):   It’s, it’s Salih is the one who has actually cut the, the wire for the, and I said, ‘Salih is the one who done that, not, not me.’

Q108   Is that cut the wire on the mixer?

A   Oh, yeah.

A (Int):   Yes.

Q109   Is that what she rang you about?

A (Int):   Yes. She’s got a problem in her head. She wants to start trouble, she wants to instigate a problem.

…

Q129   O.K. So she’s rung you and talking to you on the phone about the electrical mixer that’s been broken?

A   (NO AUDIBLE REPLY) nodded

Q130   [04:32] And then you got home?

A   (NO AUDIBLE REPLY) nodded

Q131   And did you continue arguing?

A (Int):   I mean, I came, basically, I had colon, large intestine problem. She knew I came tired. I have blood pressure. I came and lied down. I told her ‘I don’t want to talk.’

…

Q153   O.K. How long were you, was your wife arguing with you for? When you got home.

A (Int):   From yesterday I told her the way in doing things it’s not good. We’re trying to raise up, raise the children. And um, she said, ‘From now on’ so that’s on, on Monday. So I sat down with her and we had a, I had a talk with her and she said, ‘We had an agreement, that’s not going to happen.’

…

Q155   Ah hmm. And what about when you got home?

A (Int):   So when I got home I went to my bedroom and she came to my room and she wanted to start um, a dispute or a problem. And she said, ‘O.K., I want to take the, the children and I go.’ I said, ‘O.K.’

Q156   And what time was that?

A (Int):   Now, first when I went, I went to the room around, between 4.30 something like that. Today, this evening, after 4 o’clock, she goes for a bit and comes back. She goes like that and comes back and again goes and comes back. I told her ‘I can’t’. Goes and comes back for me. It took her around one hour and she came back for me again. She want to start a problem again. She goes again and again. She wants to start a problem. I did not go out of the room myself.

…

Q197   O.K. So the first time a knife was produced it was about 11 o’clock. Is that right?

A (Int):   But before that she produced the knife but I did nothing, she was going to do anything.

Q198   What time was that?

A (Int):   About, maybe, about a month ago or so.

Q199   Oh, O.K., so not earlier on tonight?

A   Oh, yeah.

Q200   [04:55]    And what happened when she produced the knife a month ago?

A (Int):   She wanted to stab me. And while she was holding the knife she hit me on my arm and she was swearing at me, abusing me.

Q201   Did she cut your arm a month ago?

A (Int):   No, no. I took the knife off her.

Q202   Did you call the police?

A   Yeah.

A(Int):   Yes.

Q203   So a month ago?

A   No, no, no.

Q204   Why, why not?

A (Int):   I did not inform the police.

…

Q210   [04:58] You said earlier that your wife took a knife and she came at you with that knife. Is that correct?

A (Int):   Yes.

Q211   What time was that?

A (Int):   Approximately, about a month ago, maybe it was –

Q212   No, no, no, just tonight, just tonight

A (Int):   11 o’clock

Q236   And do you remember what things she was arguing about with you tonight?

A (Int):   As we agreed the day before yesterday that she would change and I pointed out to her and spoke with her ‘your way of dealing like that is not a good way of dealing with others’. Let us raise our children and make a future for them.

…

Q253   And then what happened?

A (Int):    So then she was hurting me with her words and raising her voice. She started yelling and raising her voice and shouting. And then I was not able to … enough, I am very tired. And, and I took the pillow and put it over my head and, so I put the pillow on my, on my face. She got up and went out and then the next thing when I was lying down in bed, I saw her carrying the knife.

Q254   Yes?

A (Int):    I forgot to say something, she was talking with her sister but I don’t know what she was talking about.

Q255   Where was her sister?

A (Int):   In Melbourne

…

Q260   [5:15] O.K. Was she talking to you, her sister before she came into the bedroom with the knife?

A (Int):   No, no, sometimes during the day between 9 and something … look, the time issue, I’m not sure. So some, sometime before she started, before she done what she’s done. So from after 9 o’clock but …

Q261    Between 9.00 and 11.00-ish?

A (Int):   Approximately, yes.

Q262   O.K. So you see your wife come into the bedroom with the knife. Was the knife in her right hand or her left hand?

A (Int):   In her right hand.

Q263   How was she holding the knife?

A (Int):   As he was, yeah, she was holding it like this as he was pointing. It was towards her. Meanwhile the door was closed and the light was off but the children’s room had a bit of light.

Q264   So was the blade pointing towards you, was it point to the ceiling, was it pointing towards her or was it pointing to the ground?

A (Int):   So it was that the, the door was opened a little bit and there was a bit of the light coming from the children’s room. Was slightly opened a bit.

Q265   So which direction was the knife pointing?

A (Int):    Down, downward.

Q266   Towards the floor?

A (Int):   It was downward but I was, she was there and I was here. I wasn’t sure if she was going to come towards me to hit me or if she wants to hit…

Q267   How far away was she from you?

A (Int):   It was only when I saw her I paid attention, I was not aware of that, only when I saw her I paid attention, he’s saying it was too close, it was close.

Q268   So close, like, here or how many metres do you think? You know metres?

A (Int):   As between us - - -

Q269    O.K.

A (Int):   - - - and close. I was lying down in bed and she was standing.

Q270   Was she standing over you?

A (Int):    Yes, she was above me.

Q271:   What did the knife look like?

A (Int):   The handle of it was black.

…

Q277   What do you use the knife for?

A (Int):   The knife, basically, at work I find things at Aussie Skips including the mixer, so I pick up these things. As for knives, sometimes she doesn’t have knives or the knives at home become blunt or things at home breakdown so I pick up these things and I bring them home. So this particular knife, I brought home from work, but she took it and put it aside. I collect these things. I realised that this knife has disappeared. I asked her ‘Where did the knife go?’ She said ‘I don’t know.’

Q278   What did the, is it a kitchen knife, is it a, a fishing knife, what sort of knife is it?

A (Int):   Maybe close to a fishing. So I did not buy it, I, I found it in, in the rubbish.

…

Q287   So I’ll just show the video the drawing of the knife which [the applicant] has drawn. O.K. So your wife is standing above you with this knife in her right hand. What happens then?

A (Int):   So when I saw the knife straightaway I, I got up towards her straightaway so in order not to hit me or to hit herself.

Q288   Told her that, did you tell her that?

A (Int):    No, I did not say. But I’ve seen somebody holding a knife. So as I was getting up, so the knife has gone like that.

Q289   The, the knife cut your left arm?

A   Yep

A (Int):   Yes.

Q290   [5:27] Yes. An then what’s happened?

A (Int):   When, after she, after she hit me with the knife she started um, swearing at me.

Q291   And what was she saying?

A (Int):   With abusive names and say, ‘You’re not a man.’

Q292   What were the abusive names?

A (Int):   Saying ’You are not a man and you are an idiot.’

Q293   What were the swear words? Don’t worry, I hear everything.

A (Int):   She swore at me and I couldn’t take it. You can see here that I’m injured and despite all of that … she does not appreciate this or that.

Q294    What was she saying, what were the swear words?

A (Int):   I swear by God the great, it reaches a point … enough, that’s it. I swear by the God … some words I recall which she told me “these are not your children.” And I lived with her for eight years.

Q295   O.K. So you couldn’t bear it?

A (Int):   Yes. I couldn’t bear it, that’s enough.

Q296   And what happened?

A (Int):    I found myself hitting her with the knife.

Q297   Do you recall how you got the knife off her?

A (Int):   I took it with my right hand. But when I was blocking her attack, I blocked it with my left arm.

Q298   And why were you defending yourself with you left arm?

A   I was more or less leaning on the side like this.

Q299   On the bed?

A   Yeah.

A (Int):   Yes.

Q300   [05:31] Were you under the covers?

A (Int):   There was a blanket but I wasn’t completely covered.

Q301   So where were the covers up to?

A (Int):   Halfway roughly.

Q302   So you grabbed the knife out of her hand with your right hand. And what did you do then with the knife?

A (Int):   She was still swearing and I saw myself bleeding and she was still swearing and I took the knife off her and she was saying bad words.

Q303   You were saying bad words?

A (Int):   She, as she was saying bad words.

Q304   What bad words?

A (Int):   And these are the words I just told you before - - -

Q305   O.K.

A (Int):   - - - “Do you think these, those are your children?”

Q306   O.K. And then what’s happened?

A (Int):   And then I hit her with the knife.

Q307   Where did you hit her with the knife?

A (Int):   I don’t remember but I, I hit her.

Q308   How many times?

Oh, three, two, I’m not sure, I am not sure.

A (Int):   I am not sure.

Q309   What happened when you’ve hit her with the knife?

A (Int):   Then when I hit her with the knife then I rang the police and the ambulance.

Q310    [05:33] What did your wife do when you started hitting her with the knife?

A (Int):   She was screaming.

Q311   What was she yelling?

A (Int):   That means screaming.

Q312   Shouting out for help, shouting at, swearing at you still, what was she shouting?

A (Int):   That means out of pain.

…

Q323   Why did you hit your, hit her with the knife?

A (Int):   So I did not know initially whether she was going to hit herself with the knife or hit me with the knife.

Q324   Why did you think she was going to hit herself with the knife?

A (Int):   Because she, prior to that she, she said that. Once she said ‘I’ll kill you.’ That’s why sometimes I am scared for myself.

Q325   Prior to that she was, you said before she was going to try, commit suicide. Is that correct?

A (Int):   Yes.

Q326   Was that the same night, last night?

A (Int):   On the same night she’s said that.

Q327   That was last night?

A (Int):   Not last night. Yeah, because, no, it was a different day, yeah, yeah - - -

Q328   Yeah, so - - -

A (Int):   - - - so it was last night, yes.

Q329   Where, before this happened - - -

A (Int):   Yeah, yeah.

Q329   - - - just before this happened?

Yeah.

Q330   [05:38] O.K. If you thought she was going to hurt herself or you why did you just not take the knife off her and leave the room with the knife?

A (Int):   And I told you when I saw the, the blood that I was hit and she kept going on and on and on. So I became like a pump, you know, I filled up and filled up and then - - -

Q331   Why did you stab your wife?

A (Int):   The first thing, it was possible that she could have stabbed me … she brought this specific knife. The first time she tried to stab me and I took the knife off her. And in the day, that was in the daytime before that.

Q332   A month ago?

A (Int):   Yes

Q333   But tonight, why did you stab her tonight?

A (Int):   Because the knife, she is, she is the one who brought the knife and I initially, and she was, and that knife has, has disappeared prior to that.

…

Q336   You had a hold of the knife?

A    (NO AUDIBLE REPLY)

Q337   Yes, are you, like, yes?

A (Int):   Yes, I held the knife.

Q338   How did you think she would hit you again?

A (Int):   I said I know I already said I took the knife off her but she kept on swearing and she hit me already there. And he’s got about five or six stitches. I don’t know.

Q339   What did you think would happen when you were hitting her with the knife?

A (Int):   After that I was not thinking about that or anything

…

Q413   Yeah, I just want to clarify because you said you, the first time you showed you got up like this but as soon as you saw her you said, ‘I got up and the knife cut me.’ And then, then you say that you were lying down. So which one was it?

A (Int):    I was on my side and I stood up. She was closer and quick to this arm. So I was leaning on the edge of the bed. Yeah.

Q414    Then and - - -

A   Yeah.

Q414   - - - and did you put your arm up?

A   Yeah.

Q415   Is that correct?

A (Int):   This one was closer.

Q416   Mmm. What motion was, was his wife doing with the knife? Was she just standing there with the knife holding it or was she lunging forward, what was she doing?

A (Int):   I don’t know. Because prior to that she told me ‘I’m, I’m going to hit you’ and then another time she said, ‘I’m going to commit suicide.’

…

Q419   Very close. And how long before he started to hit her with the knife?

A (Int):   She was, kept on swearing at me and swearing at me, abusing me, maybe all seconds or minutes. Not a long time.

Q420   [06:14] Not a long time. O.K. What was she wearing?

A (Int):   I cannot, and I was bleeding, I was bleeding. She kept going on and that caused me to explode.

…

Q456   - - - if the police and, were knocking on the door?

A (Int):   I’m confused myself, that’s why. Yeah, there’s a possibility as when just prior to the police arrive I’ve seen her on the floor and I’ve covered her with something.

…

Q462   Yassir, is there anything further you wish to say about this matter?

A (Int):   Even if I remember, my brain now is as more or less closed up and I can’t - - -”

The defence case

Defence counsel’s opening

108. Immediately prior to the applicant giving evidence, defence counsel made the following statement to the jury:

“You will hear that in fact the accused did record what was going on in the house, that he did use recording devices. I ask you, members of the jury, to listen very carefully to the reason for that. Far from the suggestion of the Crown that it was because he was controlling and domineering, the evidence will establish that it was done because of a concern for his children.

As for the night in question, you’ve already heard what the accused said, that this was really a crescendo of what happened, that the deceased, Mariam Yousif, came at him after fights, prodding earlier in the night, and came at him with a knife. Not only did she come at him with a knife but she actually tried to stab him, and he attempted to defend himself.

You’ve heard much about blankets in this case, members of the jury, and you will hear more about blankets. You will hear, I anticipate, that Mr Hassan used the blankets to defend himself. It was as a result of Mariam Yousif attacking him whilst he was on the bed that the blanket was damaged over and over again. And when the accused attempted to take the knife from his wife it was then that she sliced him, she stabbed him, cut his arm. He will tell you again what he was thinking about what Mariam Yousif was saying while this was happening. That far from letting up once he had taken the knife off her, she continued both verbally and physically. She wouldn’t stop. And that’s the context, members of the jury, in which you will ultimately be asked to consider the evidence, and that is the evidence you will be hearing now.”

The applicant’s evidence

109. The applicant gave the following evidence through an interpreter.

110. The applicant said he moved to Australia because he “wanted to come and have a better life”. He said that the deceased wanted to come because her family was here.

111. The applicant said that, before he moved to Australia, he intended to live in Melbourne. He said that, when he, the deceased and their children arrived in Melbourne, they lived with Mrs Hannan Zaki, but he said that they moved to the deceased’s sister’s house after three weeks because there were “problems” between the deceased and her brother and because Mrs Zaki “was not dealing with me in a good way from the beginning”. He said that Mrs Zaki was “always treating me in a provocative way” and, while he declined to go into the details, he said that, when he was talking to his children, Mrs Zaki “would like the thing to happen the way she wants it to happen without asking me”.

112. The applicant said that, when he came to Sydney, he stayed with a friend initially but then rented a house because he was “thinking to bring my family and my children to live with me”. He said that it took three months for the deceased to come to Sydney and that he never returned to Melbourne to see the deceased’s family, although he said that the deceased went back on many occasions.

113. The applicant was shown a picture of his son, Salih, and had his attention drawn to what appeared to be a mark on his chin, which the applicant indicated was a “hit from his mother” which had been stitched. The applicant said that he raised this with the deceased and that she said “Sorry, I was just annoyed” and he said “Okay”. The applicant said that he took his son to the doctor to be treated. He said that the deceased apologised and admitted that she had done it. He said that he did not report the matter to the police.

114. The applicant was then asked some questions concerning the unit. He indicated that he and his wife slept in the main bedroom while the children slept in the second bedroom.

115. The applicant was then asked about recording the deceased’s conversations. He admitted that he was recording his wife, but he said that he was not recording “because of her”, but “because of the children”. He said that the children complained about the deceased and said that she hit them and locked them in the room. He said that the deceased denied doing this and said that the children were lying.

116. The applicant admitted that he removed the lock from the outside door of the second bedroom so that a person could not find a way to lock it from the outside, although he said that a person who was inside would still have control over whether they wanted to go in or out. He said that he did it because he found that the children were locked inside when the deceased was not home.

117. The applicant also acknowledged that he put an object on the frame of the bedroom door so that it “would not be able to be locked by someone”. He said that he did it because, on the occasion when he found the children locked inside the room when the deceased was not home, the children had been playing with fire and the place inside got burnt. He said that he installed the object in addition to removing the lock because his son was scared.

118. The applicant was asked what he meant by “fire”, and he said that the children “were locked inside the room and they had the lighter on and they were playing with that lighter and they burnt the edge of the bed and it went on fire inside the room”. He said that it was after this incident that he removed the lock and installed the object. He was then shown a photograph of a mattress with circles on it and his attention was directed to what appeared to be a hole in the mattress, exposing the springs inside. He explained that this damage occurred while the children were inside the room playing with the lighter. He said that the deceased was not at home when he found the children and that she had locked them inside. He said that he had come from work and heard the children screaming and found them inside the room.

119. The applicant said that he told the deceased why he removed the lock and that she apologised. He said that, after a while, the deceased said that “maybe she just remembered she went to the groceries to buy some things”. The applicant said that he told her not to lock the children in again.

120. The applicant said that most of the problems between him and the deceased were “because of the treatment of the children”. He said that sometimes he raised his voice because his son was “always” complaining about the deceased. He said that the deceased raised her voice also. The applicant said that, when there were problems between him and the deceased, he would go to a hotel. He said that he went to a hotel which he described as the “Formula 1” hotel “three or four times … sometimes three days, sometimes two days” and, on one occasion, he stayed for one week.

121. On 27 April 2012, the applicant said that he was working at a business called “Aussie Skips”. He referred to timesheets which showed him arriving at 7:13am, leaving for lunch at 1:51pm, returning to work at 2:20pm, and leaving the premises at 4:34pm. He described his work as “categorising” and “classifying” the contents of rubbish bins.

230. Counsel for the applicant submitted the fact that the sentencing judge did not determine the matter beyond reasonable doubt was demonstrated by the fact that he did not take into account that “the DNA of the deceased was located on the handle of the knife” while the deceased’s blood was not. She submitted that the inference which should have been drawn was that “the deceased must have held the knife at some time”, which she submitted was evidence that the applicant was “provoked either by the deceased approaching him with the knife or having acted in self-defence as a result of the deceased approaching him with a knife”.

231. In his written submissions, the applicant submitted that the evidence as to “the distribution of the wounds, their number and or their depth, did not establish beyond reasonable doubt that the attack upon the deceased occurred whilst she was in the bed”. Counsel for the applicant submitted that “the expert evidence was not definitive as to where the deceased had been stabbed”.

232. It was also submitted by the applicant that the sentencing judge “failed to refer to the expert evidence of the lack of blood on the blanket at the incision points” and “the location on the right hand side of the blanket of the majority of the incision points”. Counsel for the applicant referred to the evidence of Dr Van Vuuren that it would be expected there would be blood on the blanket “at the point where the knife was removed from [it]”, but submitted that the incision marks on the blanket did not coincide with the staining marks Dr Van Vuuren would have expected had the deceased been stabbed through the blanket. She submitted that this was consistent with the applicant’s evidence that “the deceased stabbed the blanket before he disarmed her and stabbed her before she ended up wrapped in the blanket”.

233. Counsel for the applicant also referred to the fact that “the blood on the doona was located on the side of the doona” which he submitted was “not consistent with the applicant having stabbed the deceased as she lay in bed”, but rather, was consistent with “a struggle where the deceased came to rest on the floor leaning against the bed”. She submitted that this also was consistent with the evidence given by the applicant at the trial.

234. The applicant also submitted that the sentencing judge failed to have regard to what was described as the “defensive wound” to the applicant’s forearm. In his written submissions, the applicant complained that there was no reference to “the expert evidence that the laceration to the applicant’s forearm was consistent with a defensive wound from a knife attack”.

235. At the hearing, counsel for the applicant referred to statement in the Crown’s written submissions about the applicant’s injury that “it is far from clear that it was sustained as defensively”. She pointed to the fact that the question was whether there was “reasonable doubt that the injury was not sustained defensively”.

236. Counsel for the applicant submitted that the failure of the sentencing judge to take these matters into account demonstrated that the findings made by him were not made beyond reasonable doubt. She submitted that, in these circumstances, the finding that “the provocation was verbal” was in fact based “on probabilities”. She submitted that, if there was a doubt as to what occurred, that doubt should have gone in favour of the applicant.

237. The applicant submitted that, while there was no requirement for the offender to be sentenced on “the most favourable view of the facts that are consistent with the verdict”… any matters in which there is a reasonable doubt must be resolved in favour of the accused”. He submitted that it was not open to the sentencing judge to “make the critical finding beyond reasonable doubt given the acknowledged paucity of evidence as to what occurred immediately prior to the stabbing”.

238. The Crown pointed to the fact that manslaughter was left to the jury on the basis of either excessive self-defence or provocation. She pointed out the task of the sentencing judge was “to make his own findings of fact consistently with the verdict”. She pointed out that, in dealing with the facts, the sentencing judge reminded himself of the principles to be applied.

239. The Crown submitted that it was “important to understand the respective strength of the evidence in relation to self-defence and provocation”. She noted that, although the applicant gave evidence that the deceased attacked him with a knife while he was lying in bed and that the injury to his arm occurred while he was defending himself, his evidence as to his state of mind was “equivocal”. She referred to the evidence to which I have referred at [182] above and submitted that, even if the applicant’s response after the interpreter sought clarification was “ambiguous”, it did not evidence that he remained “scared” of the deceased so as to support a belief that “his subsequent conduct was necessary to defend himself”. She said that this evidence was “more consistent with other evidence that the applicant gave to the effect that he lost self-control after [the deceased] hit him with the knife (on his account), after which he could not recall what happened”.

240. The Crown referred to the findings of the sentencing judge to which I have referred at [207]-[211] above, in particular, the finding that she was “upset and scared”, and submitted this was supported by the evidence of Ms Yousif and her mother.

241. The Crown also submitted that the reference by the sentencing judge at [46], to which I have referred at [211] above, where he referred to his findings “according with the probabilities”, did not involve making a finding as to the level of provocation on the balance of probabilities rather than beyond reasonable doubt. She also submitted that his description of what occurred as being “the only rational explanation” did not involve a reversal of the onus of proof.

242. The Crown submitted there was sufficient evidence for the sentencing judge to be satisfied beyond reasonable doubt that the deceased was “cowering under at least one [of the blankets] at the time of the attack”. She referred to the fact that the evidence established that there was a series of incision marks in the blankets, with 6 in the pink and red blanket and 17 in the red and fawn blanket. In relation to the red and fawn blanket, she pointed out that there were “many areas of red staining on both sides of the blanket”, and on side A, there were “many areas of staining on the tips of the fibres of the blanket adjacent to holes 1 to 16”, a “larger area of staining on the lower left edge of the blanket” on that side and “an area of staining on the tips of the blanket fibres in the top left corner”. She also pointed to the evidence that, on side B, there were “numerous dark stains adjacent to holes 1 to 15”. She noted the evidence of Ms Aldaba that the holes were made by a knife or “similar sharp implement”, which I have set out at [95]-[97] above, and the evidence of Ms Kiprovich that the pink acrylic fibres collected from the knife could have come from the pink and red blanket, which I have set out at [98]-[99] above.

243. At the hearing, the Crown referred to the observation of Senior Constable Josephs to the effect there were not only “visible bloodstains on the frill” of the doona, but also that the stains extended around “the entire length of the doona cover from the top to the bottom at the left hand side”, which I have set out at [19] above.

244. The Crown said that the submission that the injury to the applicant’s arm was a defensive wound was not supported by the evidence. She submitted that the evidence of Dr Van Vuuren was that the lacerations on the applicant’s hands were not defensive wounds and that the wound on the arm was not “typical” of a defensive wound. In written submissions, she referred to the description of the wound given by Dr Sacca to which I have referred at [36] above and the evidence of Dr Van Vuuren to which I have referred at [54] above and submitted that, in light of that evidence, it was “well open” to the sentencing judge to conclude that the injuries the applicant sustained were not defensive in nature. She submitted that the sentencing judge’s findings to which I have referred at [213]-[214] above were consistent with that evidence.

245. So far as the submission by the applicant that the fact that “the two blankets were not saturated with [the deceased’s] blood” supported his contentions that he was holding the blankets and that she was stabbing him through them, the Crown referred to the two scenarios put to Dr Van Vuuren to which I have referred at [51]-[52] above, and in particular, her conclusion that the wounds caused more internal haemorrhaging than external haemorrhaging. She submitted that it was open to reject the evidence of Ms Roebuck due to the absence of information which underpinned her conclusion.

246. The Crown also submitted that the sentencing judge was entitled to reject the applicant’s evidence. She pointed to the fact that, during his interview with the police, he said “nothing about defending himself with the blankets”. She pointed to his answers to questions 78-84 in the ERISP, which she described as his “first account” of the events of the evening of 17 April 2012. She then referred to the different accounts given in his answers to questions 253–271 and his answers to questions 287–296. She pointed out that it was only in his answer to question 300 that he mentioned the blankets, and he said that “there was a blanket but I wasn’t completely covered”.

247. The Crown also pointed to the answers given by the applicant to questions 301, 302, 306, 336, 338 and 418–419, which she submitted showed that, during the ERISP, the applicant had given a number of accounts of what had happened, but none in the same form as the evidence he gave at trial as to “the blankets being held up by him while [the deceased] was stabbing through it”.

248. The Crown submitted that it was open to the sentencing judge to conclude that the fact that the DNA of the deceased and the applicant was found on the knife handle while no blood was found there was “not sufficient to support the alternative inference for which the applicant contended when viewed with all of the other evidence”. She noted that there was evidence from the applicant’s ERISP that the deceased handled the knife prior to the assault and that there was no evidence of the time at which the DNA came to be on the knife or the age of the DNA.

Consideration

Ground 1 – The critical finding was not made beyond reasonable doubt

250. Ground 1 can be dealt with shortly. It is well-established that sentencing judges “may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27], quoting R v Storey [1998] 1 VR 359 at 369.

251. In R v Isaacs (1997) 41 NSWLR 374 at 378, a case in which there was a question about whether the jury had convicted the appellant of manslaughter resulting from provocation rather than a dangerous and unlawful act, it was pointed out that two primary constraints on a judge in finding facts for the purpose of sentencing were first, that “the view of the facts adopted by the judge for the purposes of sentencing must be consistent with the verdict of the jury” and second, that findings of fact, to the extent they are adverse to the accused, “must be arrived at beyond reasonable doubt”: see also Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [5], [9], [14]. It was not suggested in the present case that the sentencing judge should have inquired of the jury of the basis for the verdict: see Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37 at [33]-[45].

252. The sentencing judge, towards the commencement of his judgment, correctly directed himself as to the two constraints on a sentencing judge. I have referred to this direction at [199] above.

253. The applicant submitted that the sentencing judge departed from this standard for two principal reasons: in finding that the provocation must have consisted of words said by the deceased, the sentencing judge first said that “the most likely account” of the words used by the deceased was that given by the applicant, and second, that this “accords with the probabilities of what occurred” and provided “the only rational explanation” for the applicant’s loss of control, as I have set out at [211] above.

254. I do not think the sentencing judge erred in his approach to the correct standard of proof in that paragraph. First, in saying that “the most likely account” was that the deceased used the words attributed to her by the applicant during the course of the dispute which led to the killing, he was in fact accepting the evidence of the applicant about what the deceased said. This did not involve any finding against the applicant which had to be proved beyond reasonable doubt.

255. Nor do I think that he was applying an incorrect standard in making the remark that the fact that the provocation occurred in that fashion “accords with the probabilities of what occurred” and provided “the only rational explanation” of the applicant’s loss of control. The sentencing judge’s remarks in that paragraph must be considered in the context of his earlier remarks at [44] that he was “persuaded” that the applicant’s loss of self-control was caused by the words used by the deceased, and his finding at [49], expressly made beyond reasonable doubt, that the applicant attacked the deceased while she was on the bed, and his finding at [52]-[53], also expressly made beyond reasonable doubt, that, as a consequence of the abuse from the deceased, the applicant lost his self-control and stabbed the deceased to death.

256. It seems to me that, in those circumstances, the sentencing judge’s reference to “the probabilities” and the verbal abuse being “the only rational explanation” of the cause of the applicant’s loss of control did not involve a finding on the balance of probabilities that the attack was caused by a verbal provocation as distinct from a provocation resulting from a stabbing attack with a knife or self-defence. His reference to “the probabilities” and the words attributed to the deceased by the applicant being “the only rational explanation” were directed to the nature of the verbal provocation in circumstances where the primary judge was satisfied beyond reasonable doubt that the only alternative causes of either self-defence or provocation as a result of being attacked with the knife were not made out.

257. The second basis on which it was submitted that the sentencing judge had not made his findings beyond reasonable doubt was that he did not take into account expert evidence, particularly the fact that, while the deceased’s DNA was found on the handle of the knife, her blood was not. While that evidence may be relevant to the question of whether it was open to the sentencing judge to conclude beyond reasonable doubt that the assault resulted from verbal provocation, it does not follow that, in reaching his conclusion, he applied the wrong test. Whether he was in error in reaching this conclusion is the subject of ground 2.

258. It follows that ground 1 of the grounds of appeal has not been made out.

Ground 2 – It was not open to make the critical finding beyond reasonable doubt

259. Although the Court did not have the sentencing judge’s summing-up to the jury, it is apparent from the opening statement made to the jury on behalf of the applicant, which I have set out at [108] above, that he was seeking to persuade the jury that “Not only did [the deceased] come at him with a knife but she actually tried to stab him, and he attempted to defend himself” and that “Far from letting up once he had taken the knife off her, she continued [to attack him] both verbally and physically”.

260. Thus, it was critical to the defence case that not only was there verbal provocation, but that the deceased was originally in possession of the knife and in fact attempted to stab the applicant with it.

261. It was, in my opinion, open to the sentencing judge to be satisfied beyond reasonable doubt that that was not what in fact occurred. The sentencing judge, in my opinion, was entitled to reject the evidence of the applicant on this issue.

262. The first account given by the applicant as to what occurred was given in answer to a question from Senior Constable Jarman, who asked him “Did you do this to her?”, to which he responded “Yes” and told her that he used a knife. He also stated to Senior Constable Watson “I have very big problems with my wife, long big problems. I have so much stress”. There was no mention of the deceased attacking him with a knife.

263. The first suggestion from the applicant that the deceased had attacked him came in what he told Dr Sacca, as recorded in her notes: “Patient states left arm injured when his wife, who was trying to kill herself with a knife, then attacked him”. However, by the time of the ERISP later in the morning of 18 April 2012, the applicant provided a number of different accounts. First, he criticised the deceased for her treatment of their children, which was not supported by any other evidence. He claimed that the deceased grabbed their son and started to hit him. He said that he started to talk to her. He then said that she said that “I’m going to commit suicide” and took the knife. He then said that “I was sitting in the room so she went and hit me” on his left arm. He said that she started hitting him and he could not “put up with that”, so he hit her with the knife: see ERISP Q73-Q83).

264. Later in the ERISP, the applicant referred to an argument about the wire to the mixer being cut saying the argument took place originally by telephone in the afternoon. He said that the argument continued. He claimed that the deceased had agreed the day before she would change her ways, but said that, on the night in question, she was “hurting me with her words and raising her voice”. He said that he said “enough, I am very tired”, and claimed that he put a pillow over his head. He said that the next thing was “I was lying down in bed, I saw her carrying the knife”, and said that she was standing above him. He said that he got up towards her straight away in order “not to hit me or to hit herself”. He said that she then hit him with the knife and started swearing at him. He said that he “couldn’t take it”, saying that “You can see here that I‘m injured and despite all of that … she does not appreciate this or that”: see ERISP Q106-Q109, Q129, Q236, Q253-Q296.

265. He next said that he was leaning on the bed under the covers, which were halfway up. He said that she was still swearing, he saw himself bleeding, he took the knife off her, and she was saying “bad words”: see ERISP Q300-Q302. At that stage in the ERISP, the applicant said that the deceased did not threaten to commit suicide that night, but that she had previously threatened to do so: see ERISP Q325-Q329. The applicant also said, towards the end of the interview, that he thought that the deceased could have stabbed him because “she brought this specific knife”, and that she had tried to stab him a month before: see ERISP Q331-Q332.

266. It can be seen there were a number of internal inconsistencies in the applicant’s account of what occurred. He first said that the deceased threatened to commit suicide. Second, he initially said that he was “sitting in the room” when he was hit by the deceased in the left arm. Subsequently, he said that he was lying in bed, that she was standing above him, and that he got up straight away. Finally, he said that he was on the bed under the covers, which were halfway up. His last version was that, as the deceased started hitting him, he was leaning on the edge of the bed. Significantly, in none of these versions was there any suggestion that the deceased attempted to stab him multiple times through the blanket.

259. I have set out the evidence of the deceased in chief at the trial at [137]-[142] above. This version was quite different to his earlier versions, particularly in relation to his claim that he was covering himself with blankets and that she was hitting the two blankets with the knife.

260. There are a number of other difficulties with the applicant’s evidence. First, the allegation of the mistreatment of the children was not supported by any other evidence. The suggestion that he and the deceased were moving to Perth must be considered in light of the fact that, in her conversations with her mother and sister on 17 April 2012, the deceased apparently made no mention of this fact. Further, the applicant made no mention in the ERISP of the fact that, when he arrived home on 17 April 2012, the children complained that she was hitting them, as distinct from the comment that she grabbed his son and hit him. Nor did he mention that the deceased had threatened to leave with the children the following day. The sentencing judge was also entitled to accept the evidence of Ms Yousif and Mrs Zaki which established at least that the applicant was a controlling individual of whom the deceased was afraid.

261. Having regard to these matters, it is my opinion that it was open to the sentencing judge to reject the applicant’s version of events. His suggestion that the deceased repeatedly stabbed at him through the blankets while he tried to protect himself was only raised at the trial and was quite different from his earlier versions, which themselves were inconsistent. Further, a version of events which involves the deceased stabbing at the applicant some 20 times through the blanket without inflicting any injury apart from that on his forearm, with the applicant then losing self-control, taking the knife from her, and repeatedly stabbing her, is totally improbable. Even leaving aside the other difficulties with his evidence to which I have referred, the sentencing judge, who had the advantage of seeing the applicant give evidence, was entitled to reject his versions of events.

262. In these circumstances, the sentencing judge was entitled to be satisfied beyond reasonable doubt that the deceased did not attack the applicant with a knife, but rather, was stabbed when she was under at least one of the blankets either on or alongside the bed. The deceased, by the time of the attack, had changed into her pyjamas, by contrast to the applicant, who was in “street clothes”. Further, the only explanation for the incisions on the blanket was that they were caused by stabbing through it with a sharp implement. As the Crown pointed out, there were in fact many stains on the blanket, a number of which were adjacent to the holes. The absence of “saturated” bloodstains was explained by Dr Van Vuuren in the evidence which I have set out at [51]-[52] above. The primary judge was entitled to accept her evidence in preference to the evidence of Ms Roebuck, particularly having regard to the paucity of material on which Ms Roebuck based her opinion, and the fact that she was not a medical practitioner.

263. The applicant placed particular reliance on two matters. The first was the assertion that the wound to the applicant’s left arm was a “defensive wound”. Having regard to the evidence of Dr Van Vuuren to which I have referred at [54] above, the sentencing judge was entitled to conclude to the contrary.

264. The other matter relied on by the applicant was that, while the deceased’s DNA was on the knife handle, traces of her blood were not. However, the applicant had said both in the ERISP and in evidence at trial that the deceased had previously handled the knife. In these circumstances, it was open to the sentencing judge to arrive at the conclusion he reached beyond reasonable doubt, notwithstanding this evidence.

265. It follows that this ground of appeal has not been made out.

Ground 3 – The sentence was manifestly excessive

The submissions

274. The applicant noted that the sentence imposed was arrived at after allowing a 25% discount for the offer to plead guilty to manslaughter. He observed that the sentencing judge’s starting point was therefore 16 years with a non-parole period of 12 years.

275. The applicant referred to the “Public Defender’s Sentencing Table” for manslaughter domestic stabbings, which he submitted demonstrated that the sentence was “at the very top of the range” for a manslaughter domestic stabbing. Counsel for the applicant pointed out at the hearing that there were only two cases where a higher total sentence was imposed and only one where there was a higher non-parole period. She accepted that one of the two cases was irrelevant, but submitted that the other case, R v Anderson [2016] NSWSC 399, was relevant to a consideration of this issue. It should be noted that an appeal from that decision was allowed: Anderson v The Queen [2018] NSWCCA 49.

276. Counsel for the applicant submitted that the effect of what the deceased said, which was that she had been “unfaithful during the course of marriage”, and the shock of finding out the children were not his, meant that the case was one akin to where the victim was found “in flagrante”. She also relied on the fact that the appellant reported the killing, while accepting that he did not do so immediately.

277. The Crown pointed out that the sentencing judge found the offence was a “most serious” example of manslaughter. She referred to Biddle v The Queen [2017] NSWCCA 128 at [105], where Hoeben CJ at CL observed that, in respect of offences committed in the context of a domestic relationship, “general deterrence, community protection and denunciation in sentencing for domestic violence are considerations which are of considerable importance in the community at the present time”.

Consideration

278. For a sentence to be manifestly excessive, it must be shown to be “unreasonable or plainly unjust”: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], [22]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]-[59] (Hili v The Queen).

279. As I have noted, the applicant referred to a table, which he described as the “Public Defender’s Sentencing Table” for manslaughter domestic stabbings. The table provides little assistance. As has been repeatedly pointed out, a range of sentences so disclosed is not necessarily the correct range or otherwise determinative of the upper or lower limits of the sentencing discretion: Hili v The Queen at [54], citing Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]-[305]; R v Pham (2015) 256 CLR 550; [2015] HCA 39 at [26]-[27].

280. Ultimately, the only case that the appellant relied on as comparable to the present case was R v Anderson [2016] NSWSC 399. In that case, a plea of guilty on the basis of excessive self-defence was accepted. The facts on which the sentencing judge sentenced the offender were that, following a struggle between the deceased and the offender, the offender grabbed the knife from the deceased, and the circumstances were such as to no longer justify him stabbing her. After a discount of 20% for his guilty plea, the sentencing judge sentenced the offender to a term of imprisonment of 12 years and 9 months with a non-parole period of 9 years and 6 months.

281. On the appeal in Anderson v The Queen [2018] NSWCCA 49 (Anderson v The Queen), it was found that the sentencing judge erred in holding that the struggle between the offender and the deceased had ceased once the offender regained possession of the knife, and thus, that the justification for the stabbing had passed. The Court stated at [42] that this was contrary to the agreed facts and the other material available, which showed that there had been a struggle for possession of the knife and that the struggle continued after the applicant got possession of it, in the course of which he stabbed the deceased in the chest. The Court resentenced the applicant to a sentence of 12 years with a non-parole period of 9 years, the same sentence imposed in the present case, albeit with a discount of 20% for a guilty plea, compared with 25% in the present case.

282. That case does not provide any basis for concluding that the sentence in the present case was manifestly excessive. The offender in Anderson v The Queen was sentenced on the basis of manslaughter by excessive self-defence in the context of an ongoing struggle involving the use of a knife, by contrast to the present case.

283. The offence in the present case was a most serious one. On the findings by the sentencing judge, which were open to him, the deceased, who was defenceless, was subject to a violent and sustained attack resulting from a “low level” verbal provocation. The sentencing judge found that, although the applicant was previously a person of good character, and there was little likelihood of further offending, he showed no remorse or regret for what occurred, as I have noted at [222] above.

284. The Crown was correct in pointing out that, in domestic violence offences of this nature, general deterrence, community protection and denunciation are important in sentencing. It must be made clear by the courts that such domestic violence will warrant severe punishment.

285. In these circumstances, the sentence was not manifestly excessive.

Conclusion

286. In the result, the following orders should be made:

1. Grant the applicant leave to appeal.

2. Dismiss the appeal.

287. JOHNSON J: I agree with the reasons and proposed orders of Bathurst CJ.

288. PRICE J: I agree with the reasons of the Chief Justice and the orders that the Chief Justice proposes.

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Decision last updated: 03 October 2018