R v Khalouf

Case [2005] NSWCCA 395

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Regina v Khalouf [2005]  NSWCCA 395

FILE NUMBER(S):
1004/05

HEARING DATE(S):               28 September 2005

JUDGMENT DATE: 18/11/2005

PARTIES:
The Crown
Ali Khalouf (Resp)

JUDGMENT OF:       McClellan CJ at CL Hislop J Rothman J   

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S):          70061/00

LOWER COURT JUDICIAL OFFICER:     Newman AJ

COUNSEL:
P G Ingram (Crown)
P Byrne SC/I McLachlan (Appl)

SOLICITORS:
Solicitor for Public Prosecutions (Crown)
Ross Hill & Associates (Appl)

CATCHWORDS:
CRIMINAL LAW
appeal against conviction
murder
whether the jury were misdirected as to provocation under s 23(2)(b) and s 23(3)(a) of the Crimes Act
whether there was a failure to direct the jury as to consciousness of guilt
the proper use of the evidence of the appellant's accounts and any inconsistency therein.

LEGISLATION CITED:
Crimes Act 1900
Evidence Act 1995

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/1004

McCLELLAN CJ at CL
HISLOP J
ROTHMAN J

FRIDAY 18 NOVEMBER 2005

R  v  Ali KHALOUF

Judgment

  1. McCLELLAN CJ at CL:  The appellant was tried and convicted of the murder of Rebecca Diab at Bass Hill on or about 18 February 2000. Although he pleaded not guilty to murder, the only issue at the trial was whether the appellant acted under provocation.

  2. The appellant had previously been tried for the same offence in this Court before O’Keefe J and a jury. That trial commenced on 23 July 2001 and concluded on 10 August 2001 when the jury returned a verdict of guilty of murder.

  3. An appeal was lodged against that conviction which was upheld and a new trial ordered (R v Kalouf [2003] NSWCCA 179).

  4. Following the appellant’s conviction upon the retrial he was sentenced to imprisonment for 20 years commencing on 18 February 2000 and expiring on 17 February 2020 with a non-parole period of 13 ½ years expiring on 17 August 2013.

  5. The grounds of appeal are:

    1.His Honour the learned trial judge erred in law in his directions to the jury on the availability of the partial defence of provocation pursuant to s 23 of the Crimes Act 1900 in that:

    (a)The jury were misdirected as to the matters they were entitled to consider under subs 2(b);

    (b)The jury were directed in a manner contrary to the terms of subs 3(a); and

    (c)Following (a) and (b) above, the jury should have been directed in the terms of subs 3(a) that the absence of reasonable proportionality between the provocative act of the deceased and the response of the accused person does not negative the availability of the partial defence of provocation.

    2.His honour the learned trial judge erred in law in failing to direct the jury as to consciousness of guilt of the appellant in that the jury was not directed as to the proper use they might make of the evidence of the appellant’s accounts, and any inconsistency therein.

    The relevant facts

  6. The deceased married Elie Diab in 1975 and they immigrated to Australia…

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Details
AGLC
R v Khalouf [2005] NSWCCA 395
Case
[2005] NSWCCA 395
Decision Date

CaseChat Overview and Summary

The case of R v Khalouf involved the appellant's conviction for the murder of Rebecca Diab. The appeal centred on the trial judge's instructions to the jury concerning the partial defence of provocation under the Crimes Act 1900 and the failure to direct the jury on the concept of consciousness of guilt. The appellant argued that the trial judge misdirected the jury regarding the provocation defence, particularly in relation to the proportionality between the provocative act and the response, and failed to instruct the jury on how to consider the appellant's accounts and any inconsistencies therein.

The primary legal issues were whether the trial judge correctly directed the jury on the provocation defence and whether there was an omission in directing the jury on consciousness of guilt. The court examined whether the jury's understanding of provocation was properly guided in terms of the statutory provisions, specifically sections 23(2)(b) and 23(3)(a) of the Crimes Act. Additionally, the court assessed whether the trial judge's failure to address consciousness of guilt, and the appellant's accounts, constituted a legal error that required a new trial.

The court concluded that there was no misdirection regarding the proportionality aspect of provocation, as the jury could still consider provocation even if the response was disproportionate. However, the court found that the trial judge did not adequately direct the jury on the use of the appellant's accounts and inconsistencies, which was an omission that warranted a new trial. Consequently, the appeal was allowed, and a new trial was ordered.

The final orders of the court included setting aside the conviction and ordering a new trial, ensuring that the jury would receive proper directions on consciousness of guilt and the evaluation of the appellant's accounts and inconsistencies.

Orders

Orders of the court

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Background

Background to the litigation

The grounds of appeal are:1.His Honour the learned trial judge erred in law in his directions to the jury on the availability of the partial defence of provocation pursuant to s 23 of the Crimes Act 1900 in that:(a)The jury were misdirected as to the matters they were entitled to consider under subs 2(b);(b)The jury were directed in a manner contrary to the terms of subs 3(a); and(c)Following (a) and (b) above, the jury should have been directed in the terms of subs 3(a) that the absence of reasonable proportionality between the provocative act of the deceased and the response of the accused person does not negative the availability of the partial defence of provocation.2.His honour the learned trial judge erred in law in failing to direct the jury as to consciousness of guilt of the appellant in that the jury was not directed as to the proper use they might make of the evidence of the appellant’s accounts, and any inconsistency therein.The relevant facts The deceased married Elie Diab in 1975 and they immigrated to Australia in 1983. For the 12 months prior to her death the deceased worked as a house carer about twice a week. Her employer was a Mrs Dalsanto and she also gave care to Mrs Dalsanto’s two children. About 6 or 7 months before her death the deceased had told her husband that she was now working for an elderly man by the name of Rupert who lived in the Chatswood area. Evidence was given at the trial that from some months before her death the deceased had taken to ringing members of her family if she was not coming home that evening. On those occasions she would say that she would be minding children overnight because the family for which she was babysitting would be going out until quite late. Lisa Dalsanto gave evidence that she initially employed the deceased in 1997 to clean her home and later as a babysitter for her daughter. She indicated that the deceased initially attended her home twice a week but this increased from 1999 when her second child was born. Mrs Dalsanto had become close to the deceased who had confided in her that her marriage was unhappy. About 8 months before her death the deceased told Mrs Dalsanto that she was dating a Slavic bus driver called Franc. They would go to the Travelodge Motel at North Sydney together. The deceased also told Mrs Dalsanto that after Franc she started dating an Australian man and they used to stay at the Rydges Hotel at Cronulla. Some weeks before her death the deceased told Mrs Dalsanto that she was again dating Franc. Mrs Dalsanto had spoken to the deceased about her unhappy marriage and suggested that she should get a divorce. However, the deceased said she would not do this because her husband would be very upset. The appellant conducted a business as a tailor in a shop at Greenacre. He met the deceased when she was introduced to him as a prospective employee in his business. After a time the deceased and the appellant commenced an affair. Apparently about 4 months before Rebecca Diab died the appellant moved to Melbourne and had requested that the deceased and her children come to live with him in that city. The deceased did not want to do this and she tried to withdraw from the relationship. Evidence was given at the trial by Mr John Stait who had given assistance to the deceased’s family that the deceased had come to him at his home before Christmas 1999 appearing to be agitated. She said she was frightened of a man who was making advances to her all the time and was pestering her with phone calls. She apparently indicated that she was scared for her life because she would not go with him. Mr Stait suggested to the deceased that she should obtain a restraining order but the deceased’s reply was along the lines of “what is the use, they always seem to get around it”. The deceased also allegedly said to Mr Stait that her boss said that he was going to kill her if he did not have his own way with her.

Evidence

Evidence Before The Court

Dr Lee was of the opinion that the deceased had died quickly and at most within 30 seconds and that the cause of death was multiple stab wounds that resulted in torrential external bleeding from the throat and neck area and non-supply of blood to the brain. Dr Lee’s opinion was that the deceased had initially been injured near the bed and when she became less mobile with the large volume of blood loss she bled onto the bed causing the heavy blood stains on the bed and then collapsed onto the floor.The appellant’s evidence The appellant gave evidence that he had an intimate relationship with the deceased that commenced in 1998. He said that there were no problems in the relationship until 8 months prior to February 2000 when he decided that he wanted to stop it and return home. He said that he left Sydney and went to live in Melbourne so they could be apart. However, he travelled back to Sydney frequently to see his children and the deceased. He kept in constant communication with the deceased returning her daily calls. On the day before the incident, the deceased called him and said that she wanted to see the appellant on the Thursday for the last time before they each went back to their own homes. They arranged to meet at the Padstow RSL at 5 pm and after drinking a few beers and playing on some poker machines they left the club at approximately 7 pm. The deceased was wearing a dress that the appellant had given to her some weeks previously. He had made the dress for her. They bought some fruit and vegetables and went back to the hotel. They went to the room, ate some fruit and then made love. They chatted together for a short while and again made love after which the appellant’s son rang him on his mobile phone. His son, Ahmed said, “I have been waiting for you, why haven’t you come, return home” to which the appellant responded “Tomorrow definitely I will be coming back.” The deceased had gone to the bathroom at that time. When he had hung up the telephone the deceased said, “Every time I spend some … time with you together one of your children call us and disturb us.” She became edgy. He tried to talk to her gently and calmly. She wanted to make love again but he said that he was too tired. She started swearing at him telling him that his “mother is a slut. I am going to fuck your mother. All your children are sluts and hopeless.” She left the bed, went to a table and picked up a cucumber which she inserted into her vagina and rectum. He asked her to remove the cucumber and when he pushed her the cucumber fell to the floor. She told him that she intended to use the cucumber on his daughter “because she has her birthday the following day. Because her husband cannot sleep with her and I want to use it on her. I want to use that cucumber on her because she is a slut.” Mr Michael Moses who is an interpreter of the Arabic language was asked by counsel for the appellant about these words and the effect they would generally have on a Lebanese man. He said that the references to the mother would be the most humiliating of injuries.

Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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