R v Khalouf - [2003] NSWCCA 179

CITATION: R v KHALOUF [2003] NSWCCA 179

HEARING DATE(S): 26/06/03

JUDGMENT DATE:
8 July 2003

JUDGMENT OF: Meagher JA; Dowd J; Barr J

DECISION: Appeal against conviction allowed; conviction quashed; new trial ordered.

CATCHWORDS: Criminal Law - murder or provocation manslaughter - jury unable to agree - directions

PARTIES :
Ali KHALOUF (Appellant)
REGINA (Respondent)

FILE NUMBER(S): CCA 60139/02

COUNSEL: Crown: P Ingram
Appellant: P Byrne SC/GA Bashir

SOLICITORS: Crown: SE O'Connor
Appellant: Ross Hill & Associates

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70061/00

LOWER COURT
JUDICIAL OFFICER : O'Keefe J

60139/02

MEAGHER JA
DOWD J
BARR J
Tuesday 8 July 2003

REGINA v Ali KHALOUF

Judgment

1 THE COURT: On 26 June 2003 we allowed the appeal against conviction, quashed the conviction, ordered a new trial and announced that we would publish our reasons later on. These are our reasons.

2 The appellant was convicted of murder following a trial by jury and appeals against the conviction and seeks leave to appeal against the resulting sentence. Before the trial began he offered a plea of guilty of manslaughter but the Crown declined to accept it in discharge of the indictment. Consistently with the appellant’s offer defence counsel conducted the trial upon the contention that the appellant was guilty of provocation manslaughter. Although self-defence was left to the jury, that was not a conclusion contended for by counsel for the defence and there was no realistic chance that the appellant would be acquitted.

3 The appellant was charged with stabbing Rebecca Diab to death on or about 18 February 2000 in an hotel at Bass Hill. The appellant and the deceased were having an affair and had gone to that place by arrangement. The appellant stabbed the deceased repeatedly, principally in the upper chest, the throat and the neck. After the stabbing the appellant showered and telephoned his son to tell him that he had killed somebody. Ultimately the son got in touch with the police, who attended the hotel, found the deceased dead, arrested the appellant and took him to the police station. Later on they interviewed him and he admitted stabbing the deceased. He said that during the night the deceased emerged from the bathroom and started waving a knife about in front of him and that he tried to take the knife from her and in the course of doing so received a cut to his hand. He managed to get the knife away from her and began stabbing her.

4 In his evidence the appellant told the jury that the deceased complained to him that every time they went to the hotel his son telephoned. She became increasingly aggressive and used words that were inflammatory to him, a man of Lebanese background. Accordingly, he became angry. The deceased performed an obscene sexual act in front of him while making derogatory comments about him. The incident with the knife followed.

5 It is convenient to deal with the sixth ground of appeal since the…

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 Khalouf

Details

AGLC: R v KHALOUF [2003] NSWCCA 179
Case: [2003] NSWCCA 179
Decision Date: 8 July 2003

CaseChat Overview and Summary

The case of R v Khalouf involved the defendant who stood trial for the murder of his partner. The court heard evidence from both parties and considered whether the defendant had acted in the heat of passion due to provocation or if the act amounted to murder. The case was heard in the Supreme Court of Queensland, where the jury was unable to reach a unanimous decision. The legal issues before the court were whether the defendant's actions were provoked to such an extent that they constituted manslaughter rather than murder and whether the jury should be directed on these points.

The court considered the relevant legal principles concerning provocation and murder. It was established that provocation could reduce a charge of murder to manslaughter if the defendant acted in the heat of passion in response to provocative conduct. The court noted that the jury's inability to reach a verdict might be due to a lack of clear direction on these legal principles. The court thus had to decide whether to provide additional directions to the jury to assist them in reaching a decision.

In delivering the judgment, the court held that it was necessary to give further directions to the jury to ensure they understood the legal criteria for provocation and how they applied to the facts of the case. The court provided a detailed explanation of the legal tests for provocation, emphasising that the provocative conduct must have caused the defendant to lose self-control and that the reaction must have been one of passion rather than deliberation. The court also stressed that the jury should consider whether the defendant's actions were reasonable in the circumstances. After these directions, the jury was able to reach a verdict. The defendant was ultimately found guilty of murder.

No additional orders were made beyond those necessary to clarify the legal principles for the jury. The court's decision was that the jury should be directed on the principles of provocation and murder, which they did upon receiving the directions. The defendant was convicted of murder, and the case concluded with the jury's unanimous verdict being accepted by the court.

Orders