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Court of Criminal Appeal 2 December 2016

Abdallah v R

[2016] NSWCCA 275

Homicide
CONVICTION APPEAL MANSLAUGHTER DEFENCE WHETHER VERDICT UNREASONABLE CONVICTION APPEAL ALLOWED

Citation: Abdallah v R [2016] NSWCCA 275
Court: Court of Criminal Appeal, NSW
Date: 2 December 2016
Judge(s): Hoeben CJ at CL; Campbell J; Button J

Background

The appellant was charged with the murder of her cousin, with whom she shared a townhouse at Brighton-le-Sands. On 9 February 2013, following a physical altercation captured on CCTV, the appellant stabbed the deceased once in the chest with a kitchen knife, causing a fatal wound. The deceased also had blunt force head injuries and cocaine in her system, both contributing causes of death.

The jury acquitted the appellant of murder but returned a verdict of guilty of manslaughter. The trial judge sentenced her to 11 years' imprisonment with a non-parole period of 8 years and 3 months. The sentencing proceeded on the basis that the appellant had the requisite intent for murder but that her act was an unreasonable response to the circumstances as she perceived them, placing the offending in the category of excessive self-defence.

The appellant appealed against both conviction and sentence. The principal ground of the conviction appeal was that the jury had been given a materially defective written direction concerning manslaughter by excessive self-defence.

  • Whether the trial judge gave the jury a proper and complete direction on manslaughter by excessive self-defence under ss 418, 419 and 421 of the Crimes Act 1900 (NSW)
  • Whether any error in the directions caused a miscarriage of justice, or whether the proviso (no substantial miscarriage) could be applied to preserve the conviction
  • Whether the jury received adequate directions on lies and consciousness of guilt
  • Whether the verdict of manslaughter was unreasonable
  • Whether, if a retrial was ordered, any limitation should be placed on how the Crown could present its manslaughter case

Decision

The central issue on appeal was the adequacy of the written directions provided to the jury on excessive self-defence. Under the relevant provisions of the Crimes Act, excessive self-defence applies where the accused believed their conduct was necessary for self-defence but the act was not a reasonable response in the circumstances as they perceived them. A conviction in those circumstances is manslaughter, not murder. The Court of Criminal Appeal found that the written direction given to the jury on this topic was fundamentally defective: it failed to present the excessive self-defence pathway to manslaughter as an integrated, coherent whole, leaving the jury without a proper framework for applying that legal concept.

The Crown argued that any error was cured by the proviso, that is, that no substantial miscarriage of justice actually occurred because the evidence of manslaughter was strong. The Court rejected that argument. Hoeben CJ at CL held that it was quite possible the jury had followed an invalid path to its guilty verdict, driven by the erroneous written direction, which addressed the central issue in the trial. In those circumstances, the conviction could not stand.

The Court also considered whether Criminal Appeal Rule 4 (which can prevent a ground of appeal being raised if it was not properly raised at trial) should operate to dismiss the appeal. Although trial counsel had made a general submission on self-defence, the Court found that submission did not raise the specific and refined point advanced on appeal, and declined to apply r 4, given the fundamental nature of the misdirection.

On the question of any retrial, the Court declined to limit how the Crown could present its case at the new trial. The Court did not accept that a jury verdict, which had been set aside on account of a fundamental misdirection, could give rise to binding incontrovertibility constraining the Crown's approach at a subsequent trial.

Orders Made

  • The appeal against conviction is upheld.
  • The conviction for manslaughter is quashed.
  • A new trial on a count of manslaughter is ordered.

Key Takeaways

  • A direction on manslaughter by excessive self-defence must present the relevant statutory elements as an integrated conceptual whole; a direction that fragments or obscures that framework may constitute a fundamental misdirection.
  • Where a jury direction misdirects on a matter fundamental to the central issue at trial, the proviso (that no substantial miscarriage of justice occurred) will not readily be applied to preserve the conviction, even where the evidence of guilt is otherwise strong.
  • The Court of Criminal Appeal confirmed that Criminal Appeal Rule 4 will not automatically bar an appeal ground not squarely raised at trial when the misdirection goes to a fundamental aspect of the verdict.
  • A jury verdict set aside on the basis of a fundamental misdirection does not give rise to any binding incontrovertibility that would limit the Crown's conduct of a subsequent retrial.
  • Sufficient evidence of manslaughter, standing alone, does not guarantee that a conviction will be upheld on appeal where the route by which the jury reached that verdict may have been legally flawed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(a), 24, 418, 419, 421
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 21A(2)(j)
- Criminal Appeal Act 1912 (NSW), ss 5, 6(1)
- Criminal Appeal Rules (NSW), r 4

Cases:
- Filippou v The Queen [2015] HCA 29; 256 CLR 47
- Sio v The Queen [2016] HCA 32; 90 ALJR 963
- Weiss v The Queen (2005) 224 CLR 300
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Doggett v The Queen [2001] HCA 46; 208 CLR 343
- Baiada Poultry Pty Ltd v the Queen (2012) 246 CLR 92; [2012] HCA 14
- Makarian v The Queen [2005] HCA 25; 228 CLR 357
- Moore v R [2016] NSWCCA 185
- Vo v The Queen [2013] VSCA 225; 39 VR 543
- Grant v R [2014] NSWCCA 67
- Yousif v R [2014] NSWCCA 180
- Smith v R [2015] NSWCCA 193
- Justins v The Queen [2010] NSWCCA 242; 79 NSWLR 544