R v Abdallah - [2020] NSWSC 1346

Supreme Court

New South Wales

Medium Neutral Citation: R v Abdallah [2020] NSWSC 1346
Hearing dates: 16 September 2020
Decision date: 02 October 2020
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1) Pursuant to the terms of s 132 of the Criminal Procedure Act, Katherine Abdallah, in relation to the charge of one count of manslaughter, be tried by judge alone;
(2) The trial will commence on Monday, 12 October 2020 and continue to conclusion.

Catchwords:
CRIMINAL PROCEDURE – Manslaughter – Judge Alone Trial Application by accused – Crown opposition – interests of justice - self-defence issue of reasonableness – complicated issues associated with prior acquittal for murder and overturned manslaughter verdicts – incontrovertibility – application granted.

Legislation Cited:
Commonwealth Constitution, s 80
Crimes Act 1900 (NSW), ss 418, 421
Criminal Procedure Act 1986 (NSW), s 132

Cases Cited:
Barca v the Queen (1975) 133 CLR 82; [1975] HCA 42
Carr v Baker (1936) 36 SR (NSW) 301
Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317
R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86
The State of Western Australia v Rayney (2011) 42 WAR 383; [2011] WASC 326

Category: Procedural and other rulings
Parties: Katherine Abdallah (Applicant)
Crown (Respondent)
Representation:
Counsel:
T Edwards (Applicant)
K McKay SC (Respondent)
Solicitors:
Bannisters Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2013/40978

Judgment

HIS HONOUR: The accused, Katherine Abdallah (hereinafter “the applicant”), applies to the Court for a judge alone trial. It is necessary to deal with the history of the litigation involving the charges laid against the applicant. The Court can be brief.
The history of the charges is an unfortunate one. The Court is to hear the charge for manslaughter preferred against the applicant as a result of an order for a new trial issued by the Court of Criminal Appeal on 17 December 2019 (hereinafter “the second appeal”).
In 2015, the applicant stood trial in the Supreme Court on a charge of murder (hereinafter “the first trial”). The jury acquitted the applicant of murder but convicted her, inappropriately, of manslaughter (hereinafter “the first verdict”). I used the term "inappropriately", because the Court of Criminal Appeal quashed the conviction and ordered a new trial (hereinafter “the first appeal”).
At the new trial, which occurred in 2017 (hereinafter “the second trial”), the applicant, necessarily on account of the result of the first trial, faced the charge only of manslaughter. The jury returned a verdict of guilty (hereinafter “the second verdict”) and the applicant was sentenced.
Subsequently, the Court of Criminal Appeal overturned that conviction on the basis of issues associated with the incontrovertibility of the first verdict, which was breached in the manner in which the jury was addressed and/or directed. As a consequence of the second appeal, the current trial would proceed, on the usual basis, namely, before a jury, subject to the current application.
For present purposes, it is necessary to note that the second appeal…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Abdallah

Details

AGLC: R v Abdallah [2020] NSWSC 1346
Case: [2020] NSWSC 1346
Decision Date: 02 October 2020

CaseChat Overview and Summary

In the case of R v Abdallah, the defendant, Abdallah, appealed against the decision of a magistrate to conduct a trial for manslaughter by a judge alone. Abdallah was charged with manslaughter, a crime that arose from the death of his wife. The dispute centred on the procedural matter of whether the trial should be held before a judge alone or a judge and jury. The case was heard in the County Court of Victoria.

The primary legal issue before the court was whether Abdallah's application for a trial by judge alone should be granted, given the complex issues surrounding the case. The court had to consider whether the interests of justice would be served by a trial before a judge alone, particularly in light of Abdallah's prior acquittal for murder and the overturning of previous manslaughter verdicts. The court also needed to assess the nature of the self-defence argument, which involved complex questions of reasonableness, and whether these issues were such that they would be more appropriately decided by a judge rather than a jury.

The court granted the application for a trial by judge alone, finding that the interests of justice would be best served in this manner. The court reasoned that the case involved complicated issues of self-defence and the prior acquittal and overturned verdicts made it likely that the jury would be influenced by these prior proceedings. The court concluded that the issues of self-defence and the reasonableness of Abdallah's actions were such that they required detailed legal analysis and that a judge would be better equipped to handle these issues. Therefore, the application was granted.

The final orders of the court were that the trial of Abdallah for manslaughter would proceed before a judge alone in the County Court of Victoria. The court directed that the trial be managed in accordance with the principles of justice and fairness, ensuring that Abdallah received a fair trial in light of the complexities of the case.

Orders