Mencarious v R - [2008] NSWCCA 237

No judgment structure available for this case.

Reported Decision: 189 A Crim R 219

New South Wales

Court of Criminal Appeal

CITATION: Mencarious v R [2008] NSWCCA 237

HEARING DATE(S): 10 July 2008

JUDGMENT DATE:
14 October 2008

JUDGMENT OF: McClellan CJ at CL at 1; James J at 111; Fullerton J at 112

DECISION: 1. The appeal against conviction dismissed.
2. Gant leave to appeal the sentence but dismiss appeal.

CATCHWORDS: CRIMINAL LAW – Appeal against conviction – Murder – Whether necessary for trial judge to detail defence case in summing-up – Whether trial judge misstated evidence as to cause of death – Whether trial judge in error in not leaving self-defence and provocation to jury – Not necessary to direct on a particular issue unless raised by the evidence – Whether trial judge failed to properly direct the jury in relation to accident – Distinction between accident and relevant intention – Application of Rule 4 Criminal Appeal Rules – Application of Proviso - CRIMINAL LAW – Appeal against sentence – Whether sentencing judge erred in setting standard non-parole period

LEGISLATION CITED: Criminal Procedure Act 1986
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: Bingapore (1975) 11 SASR 469 at 480
Domican v The Queen (1992) 173 CLR 555
Douglass v R [2005] NSWCCA 419
Evans and Gardiner (No 2) [1976] VR 523
Fingleton v R [2005] HCA 34; (2005) 216 ALR 474; 79 ALJR 1250
Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106
Hallett (1969) SASR 141
Holmes v DPP (1946) AC 588 at 597
Kwaku Mensah v The King [1946] AC 83
Mancini v DPP [1942] AC 1
MLP v The Queen [2006] NSWCCA 271; (2006) 164 A Crim R 93
Moffatt v R [2000] NSWCCA 174; (2000) 112 A Crim R 201
Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193
Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301
Osland (1998) 159 ALR 170 at 174
Papakosmas v The Queen [1999] HCA 37, (1999) 196 CLR 297
Parker v The Queen (1964) 111 CLR 665 at 681-682
Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107
R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
R v B, MA [2007] SASC 384; (2007) 99 SASR 384
R v Dudko (2002) 132 A Crim R 371
R v Galea [2004] NSWCCA 227; (2004) 148 A Crim R 220
R v Gulliford (2004) 148 A Crim R 558
R v Park [2003] NSWCCA 203
R v Piazza (1997) 94 A Crim R 459
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
R v Zorad (1990) 19 NSWLR 91 at 105; 47 A Crim R 211 at 225
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Smith [1959] 2 QB 35; (195) 42 Cr App R 121
Stevens v R [2005] HCA 65; (2005) 227 CLR 319; (2005) 80 ALJR 91
Ugle v The Queen [2002] HCA 25; (2002) 211 CLR 171

PARTIES: Ashraf Mencarious (Appellant)
The Crown

FILE NUMBER(S): CCA 2006/4876

COUNSEL: A Francis (Appellant)
J A Girdham (Crown)

SOLICITORS: Legal Aid Commission of NSW (Appellant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2005/1090

LOWER COURT JUDICIAL OFFICER: Grove J

LOWER COURT DATE OF DECISION: 17 July 2006

2006/4876

McCLELLAN CJ at CL
JAMES J
FULLERTON J
TUESDAY 14 OCTOBER 2008

MENCARIOUS, Ashraf v R

Judgment

1 McCLELLAN CJ at CL: The appellant was convicted following a trial by jury of the murder of his wife Nevine Youseff. He was sentenced to a non-parole period of 20 years with a balance of term of 6 years and 8 months. He appeals his conviction and seeks leave to appeal the sentence which was imposed.

2 The trial occupied a total of 6 days. The appellant gave evidence on the fifth day. He was the first witness in the defence case, the only other witness for the defence being Associate Professor Hilton, a consultant in forensic medicine. Associate Professor Hilton’s evidence was short, it occupies 14 pages of transcript and was primarily concerned with the cause of Ms Youseff’s death. It will be necessary to return to the detail later.

3 Following Associate Professor’s Hilton’s evidence, the Crown Prosecutor addressed the jury. On the same day defence counsel commenced his address which he concluded on the morning of the following day. The trial judge concluded his summing up at 12.16 pm that day and the jury returned at 1.20 pm with a verdict of guilty of murder.

Relevant evidence

4 Although the appellant had inflicted significant other injuries on his wife the Crown case was that the appellant had killed her by asphyxiation.

5 The appellant and his wife were estranged. Because of the appellant’s previous treatment of her Ms Youseff had obtained an apprehended violence order (the AVO). There was one child of their union. Notwithstanding their difficulties and in breach of the AVO the appellant and his wife arranged to spend the evening of 14 December 2004 together in an hotel. At the time Ms Youseff was staying at a refuge and the appellant, concerned about the consequences of breaching the AVO, arranged to pick her up in his car at a bus stop. He had previously purchased some alcohol, including a bottle of Bourbon. They went to the hotel where they checked in. In their room they had some drinks, ordered and consumed pizza and watched some television. After a time they had intimate relations. There was also some talk between them about the possibility of a reconciliation in the future. However, the atmosphere changed when the discussion turned to the possibility of the appellant sponsoring Ms Youseff’s brother to come to Australia. This subject had been the cause of substantial friction in the past. The appellant apparently believed that Ms Youseff’s primary concern was for the welfare of her brother and this was the reason for her apparently affectionate response toward the appellant.

6 The appellant gave the following account of the relevant events:

Q: After the blows to the head the bottle had broken?

OBJECTION. QUESTION WITHDRAWN.

7 He was then asked:

8 When the appellant was cross-examined the following exchange occurred:

The cause of death

9 The forensic evidence confirmed significant physical injury to Ms Youseff. Dr Little, who carried out the autopsy, found the direct cause of death to be asphyxia. However, she also found that the injuries to Ms Youseff’s head could possibly have contributed to her death. Upon examination she found bruising to the face and nose, small lacerations to the lining of her lips, lacerations to the scalp and significant injuries to the head. There was also bruising of her body. Three ribs were fractured.

10 Associate Professor Hilton was called by the appellant. He did not examine Ms Youseff’s body. He was asked his opinion as to the cause of death and indicated that he was not as sure as Dr Little that asphyxiation was the direct cause. He said “I would not quite have put it in one word asphyxiation.” He believed that asphyxia combined with aspiration causing a spasm and concussion from the blows to the head may have in combination been responsible. However, of significance to the resolution of this appeal was his opinion that “I think there is enough indication that asphyxiation was a significant element, yes.” His disagreement with Dr Little was as to her conclusion that asphyxia was “the one and only cause of death.”

11 The prosecutor opened the case to the jury on the basis that the appellant had asphyxiated his wife by using a pillow to smother her. Because of the lack of supporting forensic evidence (there was nothing detected on the pillow to indicate that it had been used in this manner) this position changed by the end of the trial. However, the essential issue was whether the appellant had deliberately asphyxiated Ms Youseff, by whatever means, intending to cause her death or grievous bodily harm or whether her death was an accident. Although Associate Professor Hilton suggested that other injuries may have contributed to her death, the defence had to confront the fact that even he accepted a significant contribution from asphyxia.

Counsel’s addresses

12 At the close of the Crown case trial counsel for the appellant briefly opened. Nothing he said at that point would have assisted the jurors to understand the issue or issues which they would be required to resolve.

13 The Crown Prosecutor’s final address to the jury was relatively brief. He discussed the forensic evidence from Dr Little and Associate Professor Hilton. He argued that the jury would accept that all of the injuries occasioned to Ms Youseff were inflicted in a short space of time during the course of the struggle with the appellant. After acknowledging that the jury were entitled to reject the sequence of events as involving a pillow, he nevertheless submitted that they would find that asphyxiation was a substantial cause of death. He further submitted that the other injuries to Ms Youseff were consistent with the appellant having applied force to her head and face and other parts of her body. He said:

“What happened is I suggest something that can be inferred quite clearly from the medical evidence and the inference to be drawn from that is that all of the injuries that Ms Youseff suffered are explicable as the accused applying pressure to her face area. I suggest to you that the rib injuries are consistent with him also at the same time applying pressure to her rib, lung capacity area and that the combination of those two things basically led to her death.

It’s the Crown case that the mechanism he used, however you choose to interpret the evidence, that the mechanism was deliberate, that his intention was at the very least to inflict very serious injuries upon Ms Youseff but the Crown case is that his intention at the time was in fact to cause her death and that I suggest to you is the only rational inference to be drawn from the totality of the evidence and on that basis I suggest to you the single appropriate verdict in this case is one of guilty to the charge of murder.”

14 Counsel for the appellant commenced his address on the afternoon of the fifth day of the trial. It was completed the following morning. It contains some contradictions and reveals the difficulties which counsel had in identifying persuasive arguments supporting an acquittal. During the course of his address he said to the jury that by reason of the evidence of Dr Little and Associate Professor Hilton the jury could not find that the injuries occasioned by the bottle had caused Ms Youseff’s death. He said:

“Ladies and gentlemen of the jury, you may also think well how would he know it wasn’t the bottle that did kill her. We know from Dr Little she says no, the bottle was not the cause of death. I am paraphrasing but later on I’ll exactly read out what she said in that account. We know it wasn’t the bottle that killed her because that’s what Dr Little said. It’s unlikely says Professor Hilton.”

15 Counsel also said that the Crown cannot say there was “suffocation.” This was a mistake which he later acknowledged. He had intended to say that the Crown could not say there was “strangulation.” The latter statement was correct in that there was no evidence of physical injury to Ms Youseff’s neck, except for limited bruising.

16 At a later point in his address counsel sought to establish an explanation of the events consistent with innocence. Although lacking clarity it later became clear that counsel was endeavouring to persuade the jury that his client had acted without criminal intent and that Ms Youseff was asphyxiated when the appellant sought to remove his finger from her mouth. He said:

“What will be raised, and what has been raised, and what we will suggest, is that this incident occurred as a result of Mr Mencarious trying to get his finger out of her mouth.

Tomorrow I’ll draw your attention specifically to certain parts of the evidence you have heard, that will tend to corroborate the fact, and you may think will corroborate the fact, that after she was hit on those occasions with the bottle, that she was still conscious and still struggling. The cause of death: possibly asphyxia. We don’t know. But you, ladies and gentlemen, would have to determine that, based upon the evidence that has been presented.

The issue of self-defence being raised his Honour will give you directions in that regard as to what you can – that the onus of proof is on the Crown – his Honour will give you those legalities.

But, a defence to this type of indictment, ladies and gentlemen – and I remind you it is murder only that we are here to face – self-defence is a defence in certain circumstances.”

17 Counsel then made a reference to the cut to the appellant’s finger and said:

“That tends to corroborate what [the appellant] has been saying all along, that but for Nevine biting his finger none of this would have happened.”

18 The jury then retired for the day and the trial judge discussed the issues to be left with the jury with defence counsel. The judge indicated that notwithstanding counsel’s address he proposed to leave the alternative verdict of manslaughter. His Honour also raised his difficulty in understanding whether defence counsel was suggesting to the jury that Ms Youseff died because of “some form of accident.” His Honour also referred to the fact that counsel had referred to self-defence. His Honour reminded counsel that self-defence is available in the circumstance where a person forms an intention to kill or do grievous bodily harm by reason of their appreciation of the threat to their own safety. His Honour indicated that he did not understand the defence counsel to have accepted that his client had formed such an intention. The issues were not resolved that day.

19 When the trial resumed the following morning his Honour returned to these issues. Reference was made to the evidence as to the cause of death and his Honour asked counsel whether he was going to invite the jury to conclude that the death was caused by the appellant hitting Ms Youseff’s head. His Honour asked:

“Are you going to invite them to find that the death was caused by the blows to the head?”

20 Counsel answered “no” and later said:

“It is my intention to indicate to the jury that the act with respect to hitting the head with the bottle was a cause of defending oneself and, therefore, they can infer from that there was not that requisite intention to kill at that time.”

21 When the jury returned counsel resumed his address and said, inter alia:

“I also made mention (yesterday) that the Crown has to prove its case beyond a reasonable doubt. They must prove that the accused had that intention to kill and they said that he had that intention to kill because they claim that he suffocated her. The first submission I make to you is in relation to suffocation, because not only do we look at the evidence before you, but you may be assisted by looking at what evidence is not before you, and I will come to that in a minute.

I referred to self-defence yesterday and what I was intending to inform you was that the accused used the bottle to stop the victim from biting his finger. If you accept his finger was being bitten, and you accept in those circumstances that it was reasonable that the bottle was there and he grabbed it and could not stop it from happening, you may accept that he was trying to defend himself. If you accept that as the evidence, it follows you may think, if he was defending himself, he may not have had an intention to kill. But, that is a matter for you, ladies and gentlemen to determine.

In terms of intention to kill, if you look at the circumstances, he goes to a hotel that he has been there before, so he is well known. He signs his own hame and address – the registration. So, there is nothing to indicate a sinister motive for being there. It may be that you may be of the view that it was not pre-planned, premeditated, and you may infer that it was a domestic dispute that arise (sic) quite surprisingly, and as a result Nevine accidentally died. I say that in terms that he states on oath, that he never had an intention or desire to kill.

…

We also have the circumstance that we know he was on an AVO and there were orders. He has testified and indicated that she screamed in Arabic, ‘help, help.’ He said that he returned to her in an attempt to calm her down. Ladies and gentlemen you might ask yourself: how do you stop a person from yelling? You might have left the room, but faced with an AVO and somebody yelling, that would not be satisfactory. Another way was that he went back to calm her down and put his hand over her mouth to calm and subdue her. He was saying and this is unchallenged to her ‘I will go now and come back in the morning’.

…

Placing the hand over the mouth. Well, you might think that might be reasonable to calm somebody down who was screaming. Certainly we know his finger was bitten and we know it is a fresh bite because the Inspector, within moments of this incident, within an hour, one would assume, makes these observations. It was obvious to him it was a bite mark and blood had come from it.”

22 Counsel then turned attention to the cause of death and said:

“The Crown suggests there is some sort of asphyxiation in this case. There was suffocation and I will come to that in a moment. You might think it seemed elaborate, on the spur of the moment, to think ‘I will suffocate her and hit her with the bottle’. One would have thought that the bottle would have been sufficient if that was the intention. We know, from the medical evidence, that that did not cause her death.”

23 Counsel continued, raising for the jury’s consideration whether the appellant had intended to kill Ms Youseff. He discussed the forensic evidence and the initial suggestion that it was a pillow which had been used to asphyxiate Ms Youseff. He also discussed the possibility of a sheet being involved and the appellant using his hand, the latter suggestion being that the hand had closed the victim’s nose and mouth. Counsel then said:

“No pillow, no sheet, no hand. You may think what’s left. Well it may well be that Professor is right. It may well be that there are a number of combinations that could have caused her death, not just this act; that if you accept this act occurred, suffocation occurred, you may infer intent to kill. In the absence of any evidence it may well be that as a consequence of him using the bottle in that circumstance she could have died from other causes. It may well be but that we just don’t know.”

24 It is evident that counsel’s address lacked clarity. Each of the extracted portions have been carefully checked and faithfully reproduce the transcript. However, it is apparent from the extracts I have quoted and further parts of the transcript , that counsel was urging the jury to find that when Ms Youseff called out the appellant attempted to muffle her cries and a struggle followed during which she bit his finger, was hit on the head, fell to the ground and died. His thesis was that the sequence of events which led to her death, however that was caused, was an accident because the appellant did not have the intention to kill her. Towards the close of his address counsel said:

“It could be that you conclude that there was a momentary domestic dispute but the accused did not have the intent to murder anyone. It could be a tragic set of circumstances where one thing led to another and as a consequence for reasons we don’t know she died. Sure the head injuries could be a contributing factor, you can take from that in the evidence. There are other combinations of contributing factors that Professor Hilton says may well be the cause of death. He said it was very complex. You may well think it is complex.”

The judge and counsel discuss the issue

25 At the conclusion of counsel’s address the trial judge again discussed with counsel the basis upon which the case should be left the jury. They discussed the part, if any, which the striking of Ms Youseff with the bottle had in the case. His Honour raised the question as to its consequence, in particular whether the hitting of the head should be confined to being a “contributing force”. Counsel responded by suggesting that the jury take that “into account as an intent to kill – sorry – they can take as to whether there was an intent to kill.” (sic)

26 The Crown Prosecutor contributed to the discussion. His submission was that, as he understood the situation, all that could be asserted by the defence in the circumstances of this case was that the event was an accident. The prosecutor confirmed his understanding, which is borne out by the transcript, that until defence counsel’s address to the jury the issues were framed in terms of whether there was an offence in the circumstances that Ms Youseff died from asphyxiation. The prosecutor remarked that on the Crown case, which was that some act was done to asphyxiate the deceased, there was no room for any suggestion that her death was an accident. He questioned whether defence counsel was now saying that the striking of the deceased with the bottle was a cause of her death and that this was done by accident.

27 The matter was apparently resolved when his Honour pointed out that at its highest the evidence of Associate Professor Hilton would lead to the conclusion that the hitting on the head was a contributing factor to the death. Asphyxiation was accepted by both forensic experts as a substantial cause of death.

28 His Honour was sceptical whether any issue of self-defence could legitimately be raised. His Honour also expressed his doubts that a reasonable reaction to having your finger bitten was to hit the biter on the head five times with a full bottle of Bourbon. His Honour said to defence counsel:

“The question I am raising is whether beating on the head five times with a full bottle of Coke is capable of being a response to having the finger bitten.

KLARICA: Yes, and the response. There can be an inference drawn --

HIS HONOUR: But, do you wish to respond to what the Crown says that is the approach I should take, telling the jury simply that what was required was a proof by the Crown that however she died, it was not accidental, and that it was necessarily accompanied by an intent of a specific kind on the part of your client?

KLARICA: I am not comfortable with that your Honour. Sorry, could your Honour …

HIS HONOUR: Yes. First of all, whatever the act or acts of the accused which caused the death of the deceased, assuming they come to a conclusion as to what caused the death, that it was a deliberate act, in a sense that it was not accidental and, secondly, that whatever those acts or act, were they had to be accompanied at the time with an intention, harboured by your client, either to kill or to cause grievous bodily harm.

KLARCIA: If it was a deliberate act.

HIS HONOUR: Yes if they come to the view that it was an accident, they do not even get to the next question.

KLARICA: Yes, I am comfortable with that.”

29 The discussion concluded with the Crown Prosecutor submitting that self-defence was not available in this case because “the act causing death is not something (which) was done in self-defence, on any construction.” This was of course a reference again to the Crown case in which it was contended that death was caused by asphyxiation. If the jury found this to be the case, or found it to be a substantial cause of death, the suggestion of self-defence as an explanation for hitting the deceased was irrelevant. And, although it was not mentioned until this appeal, so also was any suggestion of provocation.

The summing up

30 The trial judge’s summing up was not lengthy. His Honour made plain to the jury that although the indictment contained one count of murder it carried an implied alternative charge of manslaughter. Following introductory remarks in the conventional form his Honour turned to consider the expert evidence. He reminded the jury that Dr Little’s opinion was that asphyxia was the sole cause of death. He also told them that Associate Professor Hilton preferred a more complex scenario although asphyxia was at least a substantial cause. His Honour said that Associate Professor Hilton:

“Thought it was asphyxia but, secondly, he thought there was some aspiration, that is, food brought up and causing a blockage to the breathing facility and faculties of the body as a result of a possible spasm. Third, a concussion which may have contributed to the death and some force that may have been applied to the mouth.”

31 His Honour reminded the jury that the Associate Professor had responded “no” to any suggestion that Ms Youseff may have died as a result of vomiting.

32 Shortly thereafter his Honour turned to consider the essential elements of the charge. He said:

“The next question obviously is: what are those ingredients? They are fairly simple, but to assist you I will have distributed to you a sheet of paper … what the Crown must prove beyond reasonable doubt is, first that it was a deliberate act, or acts, of the accused that caused the death of the deceased. Second thing that the Crown must prove that the act, or acts, of the accused which caused the death were accompanied at the time with an intention of the part of the accused either to kill or to cause grievous bodily harm. I put in brackets there that basically means really serious physical injury.”

33 His Honour then told the jury that they would need to determine the cause of death and that the Crown case was that it was caused by asphyxia. His Honour reminded the jury, as he had previously done, that Associate Professor Hilton was of the view that there may have been a combination of causes. His Honour said that the matter was for the jury. No doubt his Honour took this course because of the discussion he had with counsel. As I later explain I doubt that it was necessary. The Crown case was of death caused by asphyxiation. Having regard to the forensic evidence the defence could not legitimately argue that this was not at least a substantial cause.

34 His Honour reminded the jury that it was important that before the appellant could be convicted the jury must find that it was a deliberate act on the part of the appellant which caused Ms Youseff’s death. His Honour said:

“You have heard the submissions by Mr Klarica on behalf of the accused, saying that you may come to the conclusion, and invites the conclusion, that the death of the deceased may have been accidental. If you think that is possible, then the accused is entitled to an acquittal. It is incumbent on the Crown to prove that the act of the accused was deliberate.”

35 His Honour turned to the question of intention which he described as the second ingredient which the Crown had to prove. He said:

“The second ingredient that the Crown has to prove is that the act, or acts, which caused the death were accompanied by either the intention to kill or to do grievous bodily harm.

You are aware, from the prosecutor’s address, that it is the Crown case, and he does not shirk from it, that the Crown says that this accused intended to kill this woman when he caused her death. But, as a matter of law, it would suffice if you were satisfied beyond reasonable doubt that his intention was to cause her really serious physical injury.”

36 His Honour then reminded the jury of the possible alternative verdict of manslaughter and gave them the usual directions in relation to that issue. Shortly thereafter the court adjourned for the morning break. Upon resumption his Honour said:

“You would be aware from what I have said to you and what counsel have addressed you about that there are issues raised in this case for your deliberation concerning whether or not you are satisfied that the act or acts of the accused which caused the death such as you find causation to be and such as you find the act to be were deliberate.

An act is deliberate if you use will. An act is accidental if it is unwilling. In other words, it is not something which the person by an exercise of their will undertakes that is what an accident is. If you think it is possible that the deceased died as a result of an accident then, as I said to you earlier, the accused is entitled to an acquittal. On the other hand, if you are satisfied that it was a deliberate act on the part of the accused which caused the death of the deceased, and you are satisfied that it was accompanied by the requisite intention that I have defined for you, you would be looking at the crime of murder.”

37 Before concluding his summary the trial judge referred to the matter of self-defence. His Honour said:

“There is another matter that I should refer you to in passing, almost as it were, as I could explain to you in a few moments, my understanding of the raising of the defence of self-defence, is not to suggest that at any time the accused was exercising a lawful right to defend himself against attack but rather he was simply doing something in order to have the woman stop biting his finger. That is something which is … part of what I understand the accused’s case to be. When I use the expression ‘accused’s case’ I should emphasise to you that I am not in any way qualifying what I have said to you many times now, namely that the onus of proof is on the Crown.

…

As I understand it, the accused’s case is this. He draws your attention to the fact that there is no identified item which could be used for suffocation, depending on what you find is the cause of death you are invited to say that there is no evidence that any deliberate act or acts by the accused was that cause of death if you think that is possibly the situation then the accused must be entitled to be found not guilty (sic).

The alternative argument is put to you that in any event in relation to the count of murder, that you would not draw an inference beyond reasonable doubt either that the accused intended to kill or to do grievous bodily harm to Nevine Youseff it was in that context that I understand reference was made to his hitting her with the bottle in what was called self-defence.

As I have said a moment or two ago, that expression I understand was used not in the context of saying he is exercising a right to lawfully defend himself from attack but rather in the context that it was his intention not to kill her, to do grievous bodily harm to her but to get her to stop biting his finger.”

38 His Honour did not discuss with the jury the detail of the appellant’s account of the relevant events. However, that evidence had been given during the course of the previous afternoon and was immediately followed by the address of the prosecutor and defence counsel.

39 At the conclusion of his Honour’s summing up, defence counsel raised only one issue in relation to his Honour’s directions. Counsel said:

“Just one thing. Your Honour mentioned intention to cause really serious injury. Would your Honour consider giving the direction in terms of distinction between intention to cause really serious injury as opposed to intention to have a finger released.”

40 His Honour said:

“I think I told them if they are not satisfied that he had the requisite intention because all he wanted to do was to have her let go of his finger. I told them that.”

Grounds of appeal

41 The appellant submitted to this Court that the trial judge had erred by failing to adequately or fairly put the defence case to the jury, giving rise to a miscarriage of justice. The following issues were formally raised:

(a) His Honour did not take the jury to the content of any of the evidence of the appellant and thereby failed to identify for the jury those aspects of the appellant’s evidence which supported the defence case;

(b) His Honour misunderstood the evidence of Professor Hilton and misstated it to the jury in summarising the defence case;

(c) His Honour failed to leave or explain the relevance of self-defence;

(d) His Honour failed to properly direct the jury in relation to accident;

42 During the course of oral submissions to this Court counsel further submitted that his Honour should have also addressed the jury in relation to provocation.

43 It was accepted that apart from the issue of self-defence none of the matters now pressed by the appellant before this Court were raised by counsel at the trial and Rule 4 applies. Nevertheless it was submitted that a substantial miscarriage of justice has been occasioned and that this Court should intervene.

44 Although it was further submitted that the transcript reveals inadequacies in defence counsel’s understanding of the relevant law and his difficulties in articulating the appellant’s case to the jury, I do not understand it to be argued that the defence was so incompetent as to occasion a miscarriage of justice.

The issues at the trial

45 The forensic position taken by counsel at the trial was not without ambiguity. No doubt this was in part due to the difficulties which he faced in light of the evidence. Although the physical injuries to Ms Youseff were readily apparent and not minor, the forensic experts agreed that asphyxiation significantly contributed to her death. Because the asphyxiation was undeniably caused by the appellant, whatever the particular means, defence counsel was confined to a submission that this occurred accidentally in the sense that although the appellant was responsible he had not intended to kill or inflict grievous bodily harm. This is the essence of the exchange which I have recorded at [28] above. The trial judge and defence counsel agreed that the jury should determine the cause of death and then determine whether it was occasioned by accident or being deliberate was accompanied by the relevant intention.

46 In my opinion it was unnecessary to leave the issue of causation with the jury. As Wood CJ at CL confirmed in Moffatt v R [2000] NSWCCA 174; (2000) 112 A Crim R 201, the fact that the death of a victim may have been occasioned by more than one cause may not be relevant to the question of criminal responsibility for that death. A person may be criminally liable for the death of another if their actions make a substantial contribution towards the death. Provided the act of the person has more than a coincidental or insignificant effect criminal liability may exist: (Moffatt [71]; Smith [1959] 2 QB 35; (195) 42 Cr App R 121; Evans and Gardiner (No 2) [1976] VR 523; Bingapore (1975) 11 SASR 469 at 480; Hallett (1969) SASR 141; Osland (1998) 159 ALR 170 at 174).

47 In the present case the forensic evidence from both the Crown and defence witness confirmed that asphyxiation was at least a substantial cause of Ms Youseff’s death, if not the exclusive cause. That asphyxiation could only have been caused by the appellant and, there being no relevant evidence to the contrary, the jury was entitled to conclude that it was occasioned by a deliberate act done with the relevant intent.

48 Faced with these difficulties counsel sought an argument by which the jury might be persuaded to return a verdict of not guilty. At one point he said to the jury “if you accept this act occurred, suffocation occurred you may infer intent to kill.” This was no doubt a recognition that asphyxiation could not have occurred by accident. However, the danger in the submission was that, having regard to the forensic evidence, a finding that asphyxiation was a cause of death was inevitable.

49 Counsel sought to deflect the jury from a finding that the appellant intended to kill Ms Youseff by reminding the jury that the altercation was the product of a dysfunctional domestic relationship, a tragic set of circumstances where Ms Youseff was accidentally injured. It was in this context that counsel raised the issue of self-defence. Rather than suggesting that the killing of Ms Youseff was justified because of the threat which the appellant perceived, which on any view the evidence could not sustain, it was suggested that he responded to the biting of his finger and it was in order to free his finger that he attacked Ms Youseff. During the course of this struggle, and by accident, Ms Youseff died. The relevant passage from counsel’s address is included above at [21] and [22].

50 There are fundamental difficulties with this argument. Even if it could be accepted that by smashing the bourbon bottle on Ms Youseff’s head and otherwise causing her severe injury the appellant was seeking to protect his finger, which the evidence of the police indicated had suffered a superficial wound, it does not explain the asphyxiation. That could not have resulted from an attempt to release his finger but required some positive act of the appellant.

51 In written submissions, counsel for the appellant drew the Court’s attention to the exchange between defence counsel and the trial judge at the close of counsel’s address. In that exchange counsel said:

“HIS HONOUR: But if it’s a contributory force where do we go from there?

COUNSEL: They take that into account as an intent to kill – sorry, they can take as to whether there was an intent to kill. These are the facts your Honour. I can’t tailor the facts, they are the matters that were placed before the jury and it’s a matter of law your Honour. These are the issue that arise, I can’t change that.

HIS HONOUR: Nobody is asking you to change the facts.

COUNSEL: Thank you.”

52 The appellant’s counsel said of this exchange: “Irrespective of what this exchange meant, counsel was conveying that the evidence gave rise to the issue of self-defence, and whilst it is accepted that his Honour did not receive appropriate assistance in resolving the appropriate directions counsel did request directions in relation to self-defence.”

53 The difficulties with this submission are self evident. Counsel had already said to the jury that the evidence indicated that it was not “the bottle” which caused Ms Youseff’s death. Self-defence was only suggested by counsel as an explanation for the use of the bottle, not asphyxiation. And, as I have already indicated it was not suggested that it was an act of self-defence which justified the killing. As his Honour discerned, all that was suggested by counsel was that the appellant responded to his finger being bitten and without criminal intent attacked and killed the deceased.

Summing up

54 The obligations of a trial judge when summing up have been frequently stated. Section 161 of the Criminal Procedure Act 1986 provides that a judge need not summarise the evidence given in the trial if the judge is “of the opinion that, in all the circumstances of the trial, the summary is not necessary.” The impact of the predecessor of the section (s 405A of the Crimes Act 1900) was considered in R v Piazza (1997) 94 A Crim R 459 where Grove J (who was the trial judge in the present matter) said (at 462):

Domican v The Queen

55 Hunt CJ at CL also considered the issue in Piazza. His Honour stated that a trial judge is not obliged to summarise all of the evidence in the trial. The obligation is to ensure that the jury understands the issue or issues of fact which they have to determine “and to do so with such reference to the facts of the case as is necessary to assist them in that task” (at 460). In order to discharge the obligation a trial judge may need to provide a resumé of the evidence so that the jury understands how the relevant law may be applied to it (see R v Zorad (1990) 19 NSWLR 91 at 105; 47 A Crim R 211 at 225). However, this will depend upon the circumstances of the particular case, the issues which arise, the length of the trial and the complexity of the factual matrix relevant to the particular issue: Fingleton v R [2005] HCA 34; (2005) 216 ALR 474; 79 ALJR 1250.

56 In the present case the appellant submitted that his Honour had failed to discharge his obligation to direct the jury’s attention to the relevant evidence. It was submitted that his Honour should have repeated the appellant’s account of the critical events, including the calling out by the deceased, the finger biting, the struggle and the appellant hitting her on the head.

57 Although his Honour did not summarise the evidence for the jury I am satisfied that he gave appropriate directions. The jury could have been under no misunderstanding as to the evidence relevant to the matters they were required to resolve. There was no issue in the trial but that it was the appellant who inflicted the injuries on the deceased. Furthermore there was no controversy but that it was the appellant who was responsible for her asphyxiation. The only question which his Honour and counsel ultimately agreed required consideration was whether the appellant had intended that his actions should result in her death or serious injury or whether her death was the result of an accident. That issue was identified by his Honour and having regard to the confined factual matrix there was in my opinion no reason for his Honour to have again repeated the evidence for the jury.

58 Having referred the jury to the fact that the evidence was within a confined compass his Honour reminded the jury of the accused’s case. His Honour said:

“As I understand it, the accused’s case is that he draws your attention to the fact that there is no identified item which could be used for the suffocation, depending upon what you find as the cause of death you are invited to say that there is no evidence that any deliberate act or acts by the accused was that cause of death if you think that is possibly the situation then the accused would be entitled to be found not guilty.

The alternative argument is put to you that in any event that in relation to the count of murder, that you would not draw an inference beyond reasonable doubt either that the accused intended to kill or to do grievous bodily harm to Nevine Youseff, it was in that context that I understand reference was made to his hitting her with a bottle in what was called self-defence.

As I have said a moment or two ago that expression I understand it was used not in the context of saying he is exercising a right to lawfully defend himself from attack but rather in the context that it was his intention not to kill her, to do grievous bodily harm to her but to get her to stop biting his finger.

The accused invites you to consider these matters. If you consider on the whole of the evidence that those propositions are possible scenarios, if I could use that expression, then the Crown would not have proved its case. If your doubt relates to the proof of the inference that the accused’s intention was to kill or to inflict grievous bodily harm but you are satisfied that it was his deliberate act which caused the death then you would turn to the alternative count of manslaughter that I have put to you.”

59 The effect of his Honour’s remarks was to remind the jury that it was the Crown case that the appellant had suffocated Ms Youseff. Unless the jury was satisfied that this was occasioned by a deliberate act of the appellant they were told that the appellant was entitled to be found not guilty.

The “

Pemble

” submission

60 It is apparent from the authorities that there may be a tension between the adversarial nature of a criminal trial, which accepts that it is for the parties identify for themselves the issues to be tried and seek to advance the evidence relevant to those issues, and the obligation of the trial judge to ensure that the trial is fair. Counsel may, for perfectly acceptable forensic reasons, elect not to argue that the jury should make a particular finding or reason to a particular conclusion. However, the trial judge may nevertheless be required to raise that matter for the jury’s consideration.

61 The issue of provocation will sometimes present this dilemma as will self-defence. In a murder trial both issues depend upon a finding that an accused person committed the relevant act which may be denied by the accused. However, if the evidence could support such a finding and there is evidence the accused may have acted in self-defence or in response to provocation those issues must be dealt with in the judge’s directions, irrespective of the position taken by defence counsel. The problem can arise when counsel are incompetent (see Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301). However, it may also arise when counsel has made a deliberate forensic decision to eschew a particular course.

62 In Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106 McHugh and Hayne JJ said:

“It is true that criminal proceedings are not wholly adversarial in nature. One important exception to the adversarial nature of criminal proceedings is that a trial judge has a duty to direct the jury on any matter that could result in the acquittal of the accused even though the accused deliberately refuses to argue the point” (p 124).

63 The issue was considered in Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107. In that case Barwick CJ said, after referring to Mancini v DPP [1942] AC 1 and Kwaku Mensah v The King [1946] AC 83, that where the obligation on the trial judge to direct on provocation was identified even though it had not been raised by the defence, there was a duty on the trial judge to put to the jury “any matters on which the jury, upon the evidence, could find for the accused.” (p 118; see also Windeyer J at 139, Owen J at 141).

64 It may be necessary to leave provocation with the jury even though it has not been raised by the defence and even though the accused has not given evidence of actual loss of self control: Parker v The Queen (1964) 111 CLR 665 at 681-682. When deciding whether to leave the issue to the jury the court should adopt a view of the facts most favourable to the accused Holmes v DPP (1946) AC 588 at 597.

65 However, Pemble does not oblige a trial judge to give a direction in relation to any issue unless it is raised by the evidence. The duty of the trial judge is to ensure that the jury have sufficient understanding of the issues which arise on the evidence to determine the case according to law (see Domican v The Queen (1992) 173 CLR 555 (at 561); R v Dudko (2002) 132 A Crim R 371 at [30]. Furthermore, a trial judge is not bound to direct the jury in relation to an hypothesis unless it is reasonable having regard to the evidence: R v Park [2003] NSWCCA 203, referred to in R v Gulliford (2004) 148 A Crim R 558 at [136] (see also the discussion in R v B, MA [2007] SASC 384; (2007) 99 SASR 384; Fingleton v R; Douglass v R [2005] NSWCCA 419.

66 The fundamental objective of the law is to ensure that an accused person receives a fair trial according to law: RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620.

67 There was no mention at the trial of provocation. Trial counsel apparently concluded that the only means by which the appellant could resist conviction was to assert that Ms Youseff died by accident, the appellant lacking the intent required to make the killing unlawful. In my judgment, notwithstanding the overwhelming probability that the jury would reject that argument, it was all that was available.

68 For the reasons I discuss below in my opinion there was no obligation in the circumstances of the present case for the trial judge to have left either self-defence or provocation with the jury.

The evidence of Associate Professor Hilton

69 His Honour told the jury:

“You know that Professor Hilton has said that he disagrees with Dr Little, saying that ‘asphyxia is not the one and only cause of death. I think it is more complex in this instance; a potentially more complex scenario’ you remember yesterday, when he was giving evidence, he told you about matters that he thought contributed to the death. If I can just remind you, he thought it was asphyxia, but secondly, he thought there was some aspiration, that is food brought up and causing a blockage to the breathing faculties and faculties of the body as a result of possible spasms. Thirdly a concussion which may have contributed to the death and some force that may have been applied to the mouth.

He qualified that you might think, although the facts of the matter are for you, at least in relation to the aspiration when he was asked:

‘Q: Certainly this is not a case where this lady died at all from having vomited in some way?

A: No.”

70 It was submitted by the appellant that there was no evidence that the deceased had vomited and that Associate Professor Hilton did not suggest that vomiting was in any way connected with her death. It was submitted that his Honour’s reference to the Associate Professor’s evidence being qualified in the way that his Honour said was not correct and undermined the effect of the Associate Professor’s evidence.

71 I reject this submission. In his evidence Associate Professor Hilton was careful to indicate that in his view the deceased may have died from asphyxiation together with a contribution from other causes. In particular he was of the opinion that there may have been some aspiration – a reference to food being brought up and blocking the airways as a result of a spasm. The Associate Professor was also of the view that a concussion caused by the blows to the head may have contributed to her death. With respect to the possibility of a contribution from aspiration, Associate Professor Hilton accepted that Ms Youseff had not died from vomiting and any contribution from a blockage of her breathing by food matter was confined. The Associate Professor described the contribution as being possibly aspiration. All that the trial judge was doing in his reference to these matters was to identify, correctly, that the Associate Professor did not believe that Ms Youseff had vomited in a way which had contributed to her death. It must be remembered that Associate Professor Hilton gave evidence in which he indicated that he was not confident that there was evidence of aspiration. The Associate Professor said: “I am not confident there is incontrovertible evidence of aspiration.”

Accident and self-defence

72 I have already referred to the relevant part of his Honour’s summing up where he deals with the matter of self-defence. During the trial the appellant did not suggest that he had at any time an intention to kill or inflict serious harm on the deceased. His case as articulated by his counsel was that it was an accident.

73 However, during the course of defence counsel’s address a possible, although in my opinion false, issue arose. The jury were entitled to accept the evidence of Associate Professor Hilton that the striking of the deceased with the bourbon bottle had occasioned a concussion which may have contributed to her death. It was this act of striking that counsel suggested may have been done by the appellant in his defence. It was suggested that the appellant struck the deceased so as to cause her to release his finger from her mouth. However, the appellant disavowed any intention to kill or inflict serious harm. Further he could never and did not suggest that his response to having his finger bitten, hitting Ms Youseff over the head a number of times with the bourbon bottle, was a reasonable response to the bite to the finger. All that counsel was saying was that if the hitting with the bottle had contributed to her death this was an accident, there being no intention to cause the resulting harm. Of course it says nothing about the asphyxiation.

74 It is apparent that his Honour had difficulty in understanding how it was that this argument was to be put to the jury. I have already referred to the exchange between defence counsel and his Honour [18]. Ultimately, his Honour put to the jury what was said to be the “alternative argument.” That argument, confined to the hitting on the head, was that although not exercising a lawful right to defend himself against attack he was simply doing something in order to have the deceased stop biting his finger. In this sense he had no intention to kill or do grievous bodily harm.

75 Although this alternative argument was raised in my opinion it was irrelevant to the issues which were required to be determined by the jury. Because the evidence from both forensic scientists confirmed that a substantial contribution to Ms Youseff’s death was made by asphyxiation the jury need only have been concerned to identify whether that act was deliberate and done with the intention of killing her or inflicting serious harm upon her. Of course, the jury were required to look at the surrounding circumstances, including the hitting of the head with the bourbon bottle, in reaching its conclusion. However, they were not required to resolve whether the hitting over the head was done with the intention of killing or causing grievous harm.

76 The Crown case was that the act of asphyxiation was deliberate and that it occurred after the appellant had placed his hand across Ms Youseff’s mouth and she had bitten one of his fingers. The Crown case was that the bite was not a significant wound and was attended to by some antiseptic and a bandaid when the appellant surrendered to the police. The Crown submitted that there was a struggle in which the appellant inflicted significant injuries to the deceased’s body including breaking ribs and smashing her head a number of times with a bourbon bottle. The Crown emphasised the sequence of events including the use of the bottle to establish the appellant’s intention.

77 Defence counsel accepted that the issue at trial was whether the act or acts of the accused which caused the death were deliberate (see [28] above). Although my reading of the transcript causes me some hesitation it is conceivable that counsel came to this position because of a thoroughly considered analysis of the forensic options. The Crown did not ultimately seek to sustain the position that the asphyxiation was caused by a pillow. It must have been caused by something else capable of shutting off the deceased’s capacity to breath. It is difficult to envisage that this could occur by accident and the appellant did not suggest any mechanism by which accidental asphyxiation could have occurred.

78 Although a struggle took place the nature and extent of the deceased’s injuries was wholly disproportionate to any injury to the appellant’s finger. If the appellant contended that he acted in self-defence and accordingly was not guilty he would have had to confront two significant problems. Firstly, before self-defence could become an issue he would have to accept that he had intended the physical acts which caused her death and had intended to kill or inflict grievous bodily harm in so doing. This was in direct conflict with any suggestion that her death was an accident. Furthermore he would have had to confront the issue as to whether his response leading to the deceased’s death was a reasonable response to the injury to his finger.

79 In his summing up the trial judge dealt with the issue of how Ms Youseff’s death was caused and then reminded the jury that defence counsel submitted that her death may have been accidental. His Honour said:

“If you think that is possible, then the accused is entitled to an acquittal. It is incumbent upon the Crown to prove that the act of the accused was deliberate.”

80 His Honour then turned to the question of accident and said:

“An act is deliberate if you use will. An act is accidental if it is unwilling. In other words, it is not something which the person by an exercise of their will undertakes. That is what an accident is. If you think it is possible that the deceased died as a result of an accident then, as I said to you earlier, the accused is entitled to an acquittal. On the other hand if you are satisfied that it was a deliberate act on the part of the accused which caused the death of the deceased, and you are satisfied that it was accompanied by the requisite intention that I have defined for you, you would be looking at the crime of murder.”

81 It was submitted that this direction was wrong and in particular, that it tended to suggest that the death of the deceased was not accidental “if the acts of the appellant causing the death were deliberate.” Counsel referred to the decision of the High Court in Stevens v R [2005] HCA 65; (2005) 227 CLR 319; (2005) 80 ALJR 91.

82 Stevens was concerned with the relevant provisions of the Queensland Criminal Code (the Code) in particular s 23(1). That provision appears in the introductory chapter setting out the general principles of criminal responsibility which are made applicable to the substantive offences that follow. It has counterparts in Western Australia and Tasmania. As Justice Kirby observed in Stevens at [64] it is clear that the Code does not merely collect and restate the pre-existing common law.

83 The relevant provision is as follows:

“23(1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for -

84 In the present case the trial judge defined accident by reference to an unwilled act and directed the jury that if they thought it was possible that the deceased had died as a result of an accident, the appellant was entitled to an acquittal. This is the direction required by s 23(1)(a) of the Code. The appellant submitted that a further direction consistent with s 23(1)(b) of the code was also required. The direction sought raised the question of whether the death was an unforeseen and unforeseeable event. The submission was made on appeal, notwithstanding the fact that there was no issue at the trial as to whether the deceased’s death was an unintended and not reasonably foreseeable consequence of the appellant’s act. It was obvious that death was a foreseeable and likely consequence of the acts inflicting the multiple injuries suffered by the deceased.

85 The Code draws a distinction between an act and an event: Ugle v The Queen [2002] HCA 25; (2002) 211 CLR 171 at 178 [25]-[26]; Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193 at 208 [42]-[43]. In murder cases, the relevant “event” is the death of the deceased. Where death occurs as a result of the use of a weapon, such as a gun or a knife, any question of accident under s 23(1)(b) does not arise as it is obvious that death is a foreseeable consequence of a shooting or stabbing. The question which arises is whether the act of shooting or stabbing was voluntary. The same position exists when the alleged act is of sufficient violence or of sufficient force that it is plain that it may result in death.

86 In the present case, on the appellant’s version, all of the injuries were inflicted on the deceased when the appellant took hold of her and they struggled. The appellant’s account was that the injuries were inflicted by him by the use of force, including striking her on the head with a bottle. The appellant said that he did not intend to inflict serious injury, or any injury, but that does not raise any issue of accident, merely that the injuries were not intended. Only if it could be said that death was an unforeseen and unforeseeable consequence of inflicting multiple injuries to the face, nose, neck and upper body, ribs, striking the deceased’s head at least five times with a full bourbon bottle and the act of asphyxiation could any question of accident arise.

87 As Gummow and Hayne JJ said in Murray [53]-[55] where a person performs a series of deliberate acts the fact that some of them may have been performed unintentionally, without thinking, does not raise an issue of unwilled act or accident but of intention. “That is, the question was whether, in acting as he did, the appellant intended to kill or do grievous bodily harm, or had the prosecution not excluded the possibility that, as the appellant said, he had intended only to present the weapon in order to frighten the deceased” [55].

88 In the present case the appellant claimed that he took hold of the deceased and placed his hand over her mouth to stop her shouting and struck her on the head to stop her biting his finger. In these circumstances the issue is not unwilled act or accident but whether the prosecution had excluded the possibility that the appellant had acted only with the intention he claimed and did not intend to kill or inflict grievous bodily harm.

89 The reference to an accident was if anything misleading but favourable to the appellant. There could be no suggestion that the acts of the appellant which inflicted injury upon the deceased were themselves an accident. The question was the intention with which those acts were done. In these circumstances there was no occasion for the direction which the appellant now seeks but did not seek at his trial.

90 As mentioned above, [[72]] the issue of self-defence was discussed at the trial but ultimately not pursued. This was for good reason. As I have already indicated it required the appellant to accept a finding that he intended to cause the deceased’s death but in so doing was acting to defend himself. The threat to the deceased was the biting of his finger. There was simply no basis to suggest, and it was not suggested, that he reasonably believed that it was necessary in order to defend himself to inflict serious injuries on the deceased, ultimately asphyxiating her.

Provocation

91 Like self-defence, provocation lacked an evidentiary basis in the trial. Although it was open to the jury to accept the thesis of Associate Professor Hilton and find that the striking of the head and other injuries contributed to Ms Youseff’s death, the evidence required a finding that a significant contribution was made by asphyxiation. Even if in defending himself from being bitten on the finger the appellant had inflicted blows on Ms Youseff it was inconceivable that he thought it necessary to suffocate her. Provocation raised the same problem. Even if the biting of the finger was an occasion of provocation to which the appellant responded by hitting Ms Youseff it could not rationally be suggested that having a finger bitten in the circumstances would have induced an ordinary person to have lost self control and formed the requisite intention to kill or severely injure Ms Youseff.

Rule 4

92 The appellant recognises that, with one exception, all of the issues agitated on the appeal were not agitated before the trial judge. The exception is said to be the issue of self-defence. In relation to that matter although defence counsel adverted to the matter it was never suggested to his Honour that a defence formulated in accordance with s 418 of the Crimes Act was available. Furthermore, when his Honour had concluded his summing up no application was made for further or amended directions in relation to the issue.

93 In those circumstances Rule 4 applies. In Papakosmas v The Queen [1999] HCA 37, (1999) 196 CLR 297, McHugh J said (at [72]):

“There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of the evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant. Where the evidence was admissible, but the trial judge had a discretion to limit its use, the burden on the appellant is greater: the appeal can succeed only if the Court of Criminal Appeal is satisfied that the discretion would have been exercised in favour of the appellant and that, if it had, it is more likely than not that the appellant would have been acquitted. Any other view would mean that there was always a miscarriage of justice when the trial judge might have exercised a discretion in favour of the appellant.”

94 The significance of Rule 4 was discussed by Ipp JA in R v Galea [2004] NSWCCA 227; (2004) 148 A Crim R 220 at [21]ff.

95 It is apparent in this case that defence counsel was faced with a difficult forensic task. It was plain that the appellant had inflicted serious injuries on the deceased’s head and body and had asphyxiated her. As I have indicated neither self-defence nor provocation provided a plausible defence. Inherent in either issue was a jury finding of an intention to kill. A discussion in those terms would have seriously impacted upon the defence argument that Ms Youseff’s death was an accident.

96 As to the other complaints advanced by appellant counsel it is apparent that counsel at the trial did not perceive them to be an issue even requiring comment. In my opinion defence counsel was correct in adopting that view. His forensic endeavour, although doomed to fail, was to deflect attention from asphyxiation, complicate the matter with discussion about the finger biting and blows with the bottle and seek to persuade the jury that the death of the deceased was an accident.

97 In my judgment the appellant has failed to establish that on any issue raised he has an arguable case. I would refuse leave under Rule 4.

The proviso

98 Accepting the appellant’s version of the altercation with Ms Youseff he inflicted very considerable injuries upon her. There was no doubt that a verdict of murder or at least manslaughter was inevitable. The only question was whether the appellant inflicted the injuries with the intention of killing or inflicting grievous bodily harm.

99 There was considerable evidence to inform the jury’s decision with respect to the question of intention. The relationship between the appellant and his wife was dysfunctional. The evidence disclosed an occasion when he abandoned her and she was found crying and shaking in a rural area. They were in serious disagreement over the custody of their son and also over the appellant’s acting as a sponsor for Ms Youseff’s brother to come to Australia. The evidence established that when the police telephoned the appellant after Ms Youseff was found abandoned in the rural area he told them that his wife had to understand her place and respect him, and that he did not want her to come home. The appellant had withdrawn his sponsorship for her continued residence in Australia and he had himself reported her to police in relation to her conduct with respect to their child.

100 When the appellant had ceased inflicting injuries upon Ms Youseff he left the hotel. He did not call an ambulance or seek any assistance for her. Notwithstanding her obvious and extensive injuries it was more than an hour later before he reported to a police station. Any opportunity for her to have received any necessary medical care was by that time significantly compromised.

101 In these circumstances and having regard to the substantial injuries inflicted by the appellant, there could be no doubt that the appellant intended to inflict grievous bodily harm upon her. Once it was established that asphyxiation made a significant contribution to her death a conviction for murder was inevitable. Even if the trial judge erred as is now alleged I am satisfied the appellant did not lose any chance of acquittal.

Sentence

102 The appellant was sentenced to a non-parole period of 20 years with an additional term of 6 years and 8 months. His Honour found that the offence fell “at least within the middle range of objective seriousness for an offence of murder.” Having considered the appellant’s subjective case his Honour concluded that “this is not an appropriate case in which to depart from the standard non-parole period.”

103 The appellant contends that in approaching the matter in this way his Honour has fallen into error. It was suggested that his Honour commenced the sentencing process by finding that the offence was in the mid range, and without further consideration determined that the standard non-parole period applied. It was submitted that in making this finding his Honour confined his consideration to objective matters and only then considered whether subjective matters required or justified a different sentence.

104 The sentencing judge was required to apply s 54A and s 54B of the Crimes (Sentencing Procedure) Act 1999. They provide as follows:

54A What is the standard non-parole period?

(1) For the purposes of this Division, the standard non-parole period for an offence is the non-parole period set out opposite the offence in the Table to this Division.

(2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division.

54B Sentencing procedure

(1) This section applies when a court imposes a sentence of imprisonment for an offence set out in the Table to this Division.

(2) When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.

(3) The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in section 21A.

(4) The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account.

(5) The failure of a court to comply with this section does not invalidate the sentence.”

105 This Court comprehensively considered these provisions in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168. They were further considered in R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 and MLP v The Queen [2006] NSWCCA 271; (2006) 164 A Crim R 93. Kirby J summarised the relevant principles in MLP in the following terms (from [30]):

“30.

31. R v Way, in a passage quoted by his Honour, identified the issues which must be addressed in characterising whether the offence was one in the middle range of objective seriousness (at [118]):

32. Simpson J in R v AJP, provided a helpful distillation of the principles emerging from R v Way where she said this:

13 The following propositions emerge from Way and subsequent cases:

(i) while s 54B(2) requires, in sentencing in respect of an offence to which Division 1A applies, unless the sentencing court determines that there are reasons not to do so, that it set the standard non-parole period as the non-parole period for the offence, that obligation exists where the offence in question is an offence in the middle of the range of objective seriousness of offences of that kind; ...

(ii) the standard non-parole period was intended for a middle range case where the offender is convicted after trial: a plea of guilty might be in itself a reason for departure from the standard non-parole period (at [68]);

(iii) a sentencing judge will be required, in relation to any given case, to hypothesise what is an abstract offence in the middle of the range of objective seriousness in order to determine where the subject offence lies in relation to such an offence; such an exercise is, in reality, little different from the traditional sentencing exercise of evaluating objective seriousness of any offence, and should be approached intuitively and based upon the general experience of courts in sentencing for the particular offence (at [74]-[77]);

actus reus

mens rea

(v) that an offence is "typical" or "common" does not dictate that it is in the middle of the range of objective seriousness (at [101]);

(vi) the numerical frequency with which an offence of a particular kind is committed is not an indicator of the objective seriousness of any individual instance of that offence (at [101]-[102]);

(vii) where a court determines that there are reasons for departing from the standard non-parole period, the standard non-parole period nevertheless remains of relevance in the sentencing determination, as a reference point, benchmark, sounding board or guidepost (at [122]); see also R v Davies [2004] NSWCCA 319.

33. The non parole period is, of course, but one aspect of the sentence. In respect of an offence where there is a standard non parole period, the sentencing Judge must at some point address the following issues when imposing a custodial sentence:

‘First, what term of imprisonment is appropriate having regard to the offence and the circumstances of the offender? Guidance may be provided by the maximum penalty, statistics from the Judicial Commission and the collective wisdom emerging from a range of sentences involving similar conduct (cf R v Trevenna (2004) 149 A Crim R 505 per Barr J; R v George (2004) 149 A Crim R 38).

Secondly, should the offence be characterised as being in the mid-range of objective seriousness? That task should be approached in the manner suggested by Simpson J, intuitively evaluating the objective seriousness of the offence and looking to those matters in s 21A, aggravating or mitigating, that relate to the offence (including the offender's state of mind). Matters in s 21A which form part of what is usually termed "the subjective case" of the offender are not relevant to the issue of whether the offence falls within the mid-range. If the offence falls within the mid-range, the standard non parole period should apply, subject to the remaining issues.

Thirdly, are there other reasons in the matters identified in s 21A (relating to the offender) for departing from the standard non parole period? The subjective case of the offender (issues such as youth or prospects of rehabilitation (s 21A(3)(h)) may furnish reasons for departing from the standard non parole period. It should be noted that s 21A(1) provides that the matters specifically identified in the subparagraphs of s 21A are in addition to any other matter that the Court is required or permitted to take into account under any Act or rule of law. The fact that the offender may need to serve his sentence in protection, for instance, although not mentioned in s 21A(3), may be taken into account in determining whether there should be a departure from the standard non parole period.

Fourthly, there is the issue of special circumstances. Ordinarily, the non parole period bears a relationship to the term of the sentence defined by s 44(2) of the Crimes (Sentencing Procedure) Act, that is, the non parole period must not be less than three quarters of the term, unless there are special circumstances. The sentencing Judge is therefore required to address that issue. If there is to be an adjustment, then it must not so deplete the non parole period that it is reduced below the minimum term which justice requires the offender to serve (Power v The Queen (1974) 131 CLR 623 at 628; Bugmy v The Queen (1990) 169 CLR 525; 47 A Crim R 433).

‘The desirability of a judge adopting the practice of standing back after reaching a provisional sentence, and of reviewing it so as to be sure that it is appropriate for the offence at hand (see the observations made in R v McGourty [2002] NSWCCA 335 at [45]) cannot be understated, and the existence of a standard non-parole period is likely to be of assistance in this respect.’ ”

106 The appellant acknowledged through his counsel that his Honour did not approach the sentencing task by determining to apply the standard non-parole period and then oscillating about that point by reference to aggravating and mitigating factors. As I understand the complaint it is that his Honour may have confined his consideration of subjective matters to the question of whether there should be a departure from the standard non-parole period which his Honour had otherwise determined was appropriate.

107 I am not persuaded that his Honour has made any error. His Honour carefully examined the circumstances of the offence and made relevant factual findings. Although accepting that the striking of Ms Youseff with a bottle “occurred during an explosion of passion” his Honour determined that the act of killing by asphyxiation “fell well outside the category of low objective seriousness.” However, before determining the non-parole period which should be applied, his Honour gave consideration to subjective matters including the submission that the offence was out of character for the appellant.

108 His Honour also considered the submissions of counsel in relation to aggravating and mitigating factors, made a finding of an absence of genuine remorse and considered a submission with respect to the assistance given to authorities. His Honour also considered the fact that the appellant had been confined in protective custody and a medical report which indicated that the appellant had suffered depression since his wife’s death. Ultimately, having considered all relevant objective and subjective matters, his Honour concluded that it was not an appropriate case in which to depart from the standard non-parole period. In my view there is no error in this approach.

109 Furthermore, I am satisfied that the sentence which his Honour imposed was appropriate. The appellant submitted that having regard to the fact that he had no relevant criminal history, it was his first time in custody, there were no criminalising tendencies such as drug problems, the offence was not planned and there were good prospects of rehabilitation, the sentence was excessive. I reject that submission. The legislature has provided a significant indication of the penalty which a court should impose for an offence of this nature. I am entirely satisfied that even after consideration is given to the mitigating factors identified by his Honour, the appellant’s brutal treatment of his wife resulting in her death justified the sentence which his Honour imposed.

Order

110 In my opinion the appeal against conviction should be dismissed. Although I would grant leave to appeal the sentence that appeal should also be dismissed.

111 JAMES J: I agree with McClellan CJ at CL.

112 FULLERTON J: I agree with McClellan CJ at CL.

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Citations

Mencarious v R [2008] NSWCCA 237

Most Recent Citation

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CITATION:	Mencarious v R [2008] NSWCCA 237
HEARING DATE(S):	10 July 2008
JUDGMENT DATE:	14 October 2008
JUDGMENT OF:	McClellan CJ at CL at 1; James J at 111; Fullerton J at 112
DECISION:	1. The appeal against conviction dismissed. 2. Gant leave to appeal the sentence but dismiss appeal.
CATCHWORDS:	CRIMINAL LAW – Appeal against conviction – Murder – Whether necessary for trial judge to detail defence case in summing-up – Whether trial judge misstated evidence as to cause of death – Whether trial judge in error in not leaving self-defence and provocation to jury – Not necessary to direct on a particular issue unless raised by the evidence – Whether trial judge failed to properly direct the jury in relation to accident – Distinction between accident and relevant intention – Application of Rule 4 Criminal Appeal Rules – Application of Proviso - CRIMINAL LAW – Appeal against sentence – Whether sentencing judge erred in setting standard non-parole period
LEGISLATION CITED:	Criminal Procedure Act 1986 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	Bingapore (1975) 11 SASR 469 at 480 Domican v The Queen (1992) 173 CLR 555 Douglass v R [2005] NSWCCA 419 Evans and Gardiner (No 2) [1976] VR 523 Fingleton v R [2005] HCA 34; (2005) 216 ALR 474; 79 ALJR 1250 Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106 Hallett (1969) SASR 141 Holmes v DPP (1946) AC 588 at 597 Kwaku Mensah v The King [1946] AC 83 Mancini v DPP [1942] AC 1 MLP v The Queen [2006] NSWCCA 271; (2006) 164 A Crim R 93 Moffatt v R [2000] NSWCCA 174; (2000) 112 A Crim R 201 Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193 Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301 Osland (1998) 159 ALR 170 at 174 Papakosmas v The Queen [1999] HCA 37, (1999) 196 CLR 297 Parker v The Queen (1964) 111 CLR 665 at 681-682 Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107 R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 R v B, MA [2007] SASC 384; (2007) 99 SASR 384 R v Dudko (2002) 132 A Crim R 371 R v Galea [2004] NSWCCA 227; (2004) 148 A Crim R 220 R v Gulliford (2004) 148 A Crim R 558 R v Park [2003] NSWCCA 203 R v Piazza (1997) 94 A Crim R 459 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 R v Zorad (1990) 19 NSWLR 91 at 105; 47 A Crim R 211 at 225 RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 Smith [1959] 2 QB 35; (195) 42 Cr App R 121 Stevens v R [2005] HCA 65; (2005) 227 CLR 319; (2005) 80 ALJR 91 Ugle v The Queen [2002] HCA 25; (2002) 211 CLR 171
PARTIES:	Ashraf Mencarious (Appellant) The Crown
FILE NUMBER(S):	CCA 2006/4876
COUNSEL:	A Francis (Appellant) J A Girdham (Crown)
SOLICITORS:	Legal Aid Commission of NSW (Appellant) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	2005/1090
LOWER COURT JUDICIAL OFFICER:	Grove J
LOWER COURT DATE OF DECISION:	17 July 2006