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Court of Criminal Appeal 18 November 2005

Regina v Khalouf

[2005] NSWCCA 395

Homicide
CRIMINAL LAW APPEAL AGAINST CONVICTION MURDER

Citation: Regina v Khalouf [2005] NSWCCA 395
Court: NSW Court of Criminal Appeal
Date: 18 November 2005
Judge(s): McClellan CJ at CL; Hislop J; Rothman J

Background

The appellant was convicted at retrial of the murder of a woman with whom he had conducted an affair. The two had met through his tailoring business and had maintained a relationship over approximately a year before her death in February 2000. Evidence at trial established that the deceased had been attempting to withdraw from the relationship in the months before she died, and that she had expressed fear for her life to at least one acquaintance.

The admitted facts included that the appellant purchased a knife from a department store the afternoon before the deceased's death, and that the two spent the evening together at a hotel before she was fatally stabbed. The sole issue at trial was whether the appellant had acted under provocation, which would have reduced the offence from murder to manslaughter.

This was the appellant's second conviction for the same offence. An earlier conviction was quashed and a new trial ordered by the Court of Criminal Appeal in 2003. Following the retrial, the appellant was sentenced to 20 years' imprisonment with a non-parole period of 13.5 years.

  • Whether the trial judge misdirected the jury on the partial defence of provocation under s 23(2)(b) of the Crimes Act 1900, by incorrectly identifying what matters the jury could consider
  • Whether the trial judge directed the jury in a manner contrary to s 23(3)(a) of the Crimes Act 1900, which provides that a lack of reasonable proportionality between the provocation and the response does not automatically defeat the defence
  • Whether the trial judge erred by failing to direct the jury on the proper use of the appellant's accounts and any inconsistencies within them, including whether the jury could treat inconsistencies as evidence of consciousness of guilt

Decision

On the provocation grounds, the Court examined the trial judge's directions under s 23 of the Crimes Act 1900. The appellant argued that the jury had been misdirected about what conduct could constitute provocation under s 23(2)(b) and that the directions conflated the question of proportionality with the availability of the defence in a way that contradicted s 23(3)(a). The Court rejected these contentions, finding that the directions, read as a whole, adequately conveyed the relevant legal tests to the jury.

On the consciousness of guilt ground, the appellant complained that the trial judge had not directed the jury on how to use evidence of inconsistencies in the appellant's various accounts, particularly whether those inconsistencies could be used as evidence of a guilty mind. The Court noted that senior trial counsel had not sought such directions at the time and found this to be a deliberate tactical decision rather than an oversight.

The Court reasoned that any further attention drawn to the appellant's inconsistent accounts would likely have been damaging rather than beneficial. In particular, the appellant's explanation for withholding details of the alleged provocation from police, said to be out of concern for the deceased's reputation, was described by the Court as hardly credible. Directing the jury on consciousness of guilt would have risked reinforcing adverse impressions already available from the evidence.

The Court declined to grant leave on the consciousness of guilt ground under the applicable rule, finding legitimate tactical reasons for the absence of a direction request at trial. The Crown's alternative submission, that the proviso under s 6(1) of the Criminal Appeal Act 1912 applied because no substantial miscarriage of justice had occurred, was noted but not ultimately required to be determined. The Court described the Crown case as strong.

Orders Made

  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that jury directions on provocation must be assessed as a whole, rather than by isolating individual passages, when determining whether a misdirection occurred.
  • Under s 23(3)(a) of the Crimes Act 1900, a lack of reasonable proportionality between the provocative act and the accused's response does not, on its own, defeat the partial defence of provocation, and directions to the jury must reflect this.
  • Where trial counsel makes a deliberate tactical decision not to seek particular jury directions, an appellate court may treat that decision as a legitimate forensic choice and decline leave to raise the absence of those directions on appeal.
  • Consciousness of guilt directions, though available where a jury might use lies or inconsistencies as evidence of guilt, carry risks as well as benefits, and their absence at trial is not automatically an error warranting appellate intervention.
  • The Crown's submission that the proviso under s 6(1) of the Criminal Appeal Act 1912 applied was left unresolved, the Court finding it unnecessary to determine the point after concluding that the appeal grounds were not made out.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 23
- Evidence Act 1995 (NSW), s 184(a)
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases:
- R v Kalouf [2003] NSWCCA 179
- Green v The Queen (1996-1997) 191 CLR 334
- Edwards v The Queen (1993) 178 CLR 193
- Papakosmas v The Queen (1999) 196 CLR 297
- Broadhurst v The Queen [1964] AC 441
- Patterson v Regina (Cth) [2001] NSWCCA 316
- R v Hodge [2002] NSWCCA 10
- R v Sievers [2004] NSWCCA 463
- R v Villa [2005] NSWCCA 4
- R v Wilson [2005] NSWCCA 20