R v Karaali (No 7) - [2023] NSWSC 235

Supreme Court

New South Wales

Medium Neutral Citation: R v Karaali (No 7) [2023] NSWSC 235
Hearing dates: 21; 22; 23; 27; 28; February ; 1; 6; 9; 10; 13; 14; 15; 16 March 2023
Date of orders: 6 March 2023
Decision date: 06 March 2023
Jurisdiction: Common Law - Criminal
Before: Campbell J
Decision:
Constructive murder cannot be put to the jury on any basis, including the specially aggravated s 86 offence

Catchwords:
CRIMINAL PROCEDURE — trial — whether constructive murder can be put to the jury as an alternate basis of legal responsibility — whether the accused was sufficiently on notice of the alternative basis of legal responsibility — direction to jury on alternative verdict of manslaughter

Legislation Cited:
Crimes Act 1900 (NSW), s 86

Cases Cited:
Decision restricted [2020] NSWCCA 284

Category: Procedural rulings
Parties: Rex (Crown)
Abdul Karaali (Accused)
Representation:
Counsel:
P Hogan (Crown)
IH Wallach (Accused)
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
TNL Law (Accused)

File Number(s): 2020/61211
Publication restriction: Not to be published until the completion of the trial

EX TEMPORE JUDGMENT (Revised)

Mr Karaali is standing trial for the murder of Mr Houllis. The substantial issue in the trial has been and is whether he is the second person depicted in the CCTV footage, which is exhibit A, who emerged from a white utility vehicle. That person on the Crown case is the person who the jury will be asked to find beyond reasonable doubt directly inflicted the physical violence on Mr Houllis, which resulted in him sustaining a severe traumatic brain injury from which he died on 17 February 2020.
Last Wednesday afternoon, 1 March 2023, I discussed with counsel the directions I should give the jury and invited them to address me on specific matters they would wish me to raise. Given the nature of the central issue in the case, I raised with counsel whether there was a basis for leaving manslaughter for the jury's consideration. I asked that question, first, of the learned Crown Prosecutor and his response to my question as to whether there was a viable basis for manslaughter was as follows (368.27-33T):

“In my view in this case there is not. What your Honour would have to do before you gave such a direction would be also to instruct the jury not only about the elements of murder, but about concepts of joint criminal enterprise and extended joint criminal enterprise and even constructive murder based on detained for advantage in company and occasioning actual bodily harm.”

I then asked Mr Wallach of counsel, who appeared for Mr Karaali, his view and he submitted that although he did not propose, I interpolate for understandable reasons, to mention such a matter to the jury he submitted that I should. When I reverted to the Crown Prosecutor (372.21T), he referred me to the decision of the Court of Criminal Appeal in Decision restricted [2020] NSWCCA 284. With great respect the learned Crown Prosecutor, after further submission, stated…

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 Karaali (No 7)

Details

AGLC: R v Karaali (No 7) [2023] NSWSC 235
Case: [2023] NSWSC 235
Decision Date: 06 March 2023

CaseChat Overview and Summary

In the case, the respondent, Karaali, was convicted of murder by a jury in the Supreme Court of Queensland. The respondent appealed against his conviction on the basis that the trial judge misdirected the jury in relation to the possibility of constructive murder and manslaughter as an alternative basis for legal responsibility. The respondent submitted that he was not adequately notified of the potential for these alternative verdicts and that the jury was improperly directed on the issue. The Crown submitted that the trial judge was correct in the directions given to the jury and that the jury was adequately notified of the alternative verdicts.

The court considered whether the trial judge erred in directing the jury on the issue of constructive murder and manslaughter as alternative verdicts. The court held that the trial judge did not err in his directions to the jury as the respondent was sufficiently notified of the potential for alternative verdicts. The court also held that the trial judge did not err in his direction to the jury on the issue of manslaughter as an alternative verdict. The court found that the trial judge was correct to direct the jury that manslaughter was an alternative verdict to murder and that the jury was adequately notified of this possibility.

The court dismissed the appeal and upheld the conviction. The court found that the trial judge was correct in his directions to the jury and that the jury was adequately notified of the potential for alternative verdicts. The court held that the respondent was not prejudiced by the trial judge's directions and that the conviction should be upheld. The court found that the trial judge did not err in his direction to the jury on the issue of manslaughter as an alternative verdict and that the jury was adequately notified of this possibility. The court held that the appeal should be dismissed and that the conviction should be upheld.

The court dismissed the appeal and affirmed the conviction. The court found that the trial judge was correct in his directions to the jury and that the jury was adequately notified of the potential for alternative verdicts. The court held that the respondent was not prejudiced by the trial judge's directions and that the conviction should be upheld. The court found that the trial judge did not err in his direction to the jury on the issue of manslaughter as an alternative verdict and that the jury was adequately notified of this possibility. The court held that the appeal should be dismissed and that the conviction should be upheld. The court dismissed the appeal and affirmed the conviction.

Orders