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Court of Criminal Appeal 6 April 2016

Tabalbag v R

[2016] NSWCCA 48

Also reported as (2016) 258 A Crim R 240
Homicide
CRIMINAL LAW CONVICTION APPEAL S 55F(2)(B) NOT COMPLIED WITH NEW TRIAL ORDERED.

Citation: Tabalbag v R [2016] NSWCCA 48
Court: Court of Criminal Appeal, New South Wales
Date: 6 April 2016
Judge(s): Hoeben CJ at CL, Harrison J, Davies J

Background

The appellant was convicted of murder following a jury trial presided over by Adams J in June 2015. The jury returned a majority verdict of ten to one after deliberations. The appellant had pleaded not guilty to murder but guilty to manslaughter, with the central issue at trial being provocation under the law as it stood before 2014 amendments to s 23 of the Crimes Act 1900 (NSW).

The facts of the underlying offending were not in substantial dispute. The appellant returned to the apartment he shared with his long-term partner and found her engaged in sexual intercourse with the deceased. He obtained a knife and stabbed the deceased fifteen times. He then left the scene and surrendered himself to police shortly afterwards, making admissions.

The Crown argued the killing was not a loss of self-control but the product of some prior planning, pointing to the appellant's installation of tracking software, his use of the stairs rather than the lift, and the focused nature of the attack. The defence maintained provocation. Following conviction, Adams J sentenced the appellant to a non-parole period of twelve years. Both the appellant (against conviction) and the Crown (against the adequacy of sentence) appealed.

  • Whether s 55F(2)(b) of the Jury Act 1977 (NSW) was complied with before the trial judge took the majority verdict, specifically whether the court could have been satisfied that the jurors were unlikely to reach a unanimous verdict after further deliberation.
  • Whether the trial judge erred in directing the jury at approximately 12.40pm and 4.20pm on 12 June 2015 that they could return a majority verdict if unable to reach unanimity.
  • Whether the trial judge erred in supplementary directions concerning the objective element of the provocation defence.
  • Whether the trial judge failed to address the requirements of s 53C of the Jury Act 1977 (NSW).
  • Whether the Crown appeal against the adequacy of sentence should be determined.

Decision

The Court upheld grounds 1 and 2 of the conviction appeal, finding that s 55F(2)(b) of the Jury Act 1977 (NSW) had not been complied with before the majority verdict was taken. Section 55F(2)(b) requires that the court be satisfied, after examining a juror on oath, that it is unlikely the jurors would reach a unanimous verdict after further deliberation. The Court found the requisite procedural steps had not been taken at the point in the trial when the majority verdict was accepted, meaning the appellant had not been tried according to law.

Because the majority verdict procedure was fundamentally flawed, the conviction could not stand. The Court quashed the conviction and ordered a new trial. The procedural deficiency went to the integrity of the verdict itself, rendering it necessary to start afresh.

On ground 3, concerning alleged errors in the trial judge's supplementary directions on the objective limb of provocation, the Court declined to grant leave. Even if there was error, the directions were found to have operated in the appellant's favour, not against him.

The Court declined to address grounds 4 and the Crown's sentence appeal. Given the inevitability of a retrial, dealing with those matters would amount to providing an advisory opinion, which the Court of Criminal Appeal declined to do.

Orders Made

  • Grounds 1 and 2 of the conviction appeal upheld; appeal allowed.
  • Leave to rely on ground 3 of the conviction appeal refused.
  • Ground 4 of the conviction appeal not considered.
  • Crown appeal against sentence not considered.
  • Conviction for murder quashed.
  • New trial ordered.

Key Takeaways

  • A majority verdict in a NSW criminal trial is only lawfully taken once the conditions in s 55F(2)(b) of the Jury Act 1977 (NSW) have been met, including examination of a juror on oath and judicial satisfaction that unanimity is unlikely after further deliberation. Failure to comply with that procedure is fatal to the conviction.
  • The Court of Criminal Appeal confirmed that non-compliance with the majority verdict mechanism means the accused has not been tried according to law, regardless of the strength of the underlying evidence.
  • Where a ground of appeal concerns alleged misdirections that, on analysis, operated in the appellant's favour rather than to the appellant's detriment, leave to rely on that ground will be refused.
  • In declining to consider both ground 4 and the Crown's sentence appeal, the Court reinforced its established practice of not issuing advisory opinions when a retrial is the necessary outcome and those questions may arise differently in the fresh proceedings.
  • Under s 55F(2)(b), the statutory preconditions for taking a majority verdict are not merely procedural formalities. The Court of Criminal Appeal treated them as substantive requirements going to the lawfulness of the verdict itself.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 23
- Jury Act 1977 (NSW), ss 53C, 55F(2)(b)
- Criminal Appeal Rules (NSW)

Cases:
- AGW v Regina [2008] NSWCCA 81
- BG v R [2012] NSWCCA 139
- Black v The Queen [1993] HCA 71; 179 CLR 44
- BR v R [2014] NSWCCA 46; 86 NSWLR 456
- Cheatle v The Queen [1993] HCA 44; 177 CLR 541
- Green v The Queen [1997] HCA 50; 191 CLR 334
- Hunt v Regina [2011] NSWCCA 152; 81 NSWLR 181
- Le v R [2012] NSWCCA 202
- Masciatonio v The Queen [1995] HCA 67; 183 CLR 58
- Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
- Pasoski v R [2014] NSWCCA 309
- RJS v Regina [2007] NSWCCA 241; 173 A Crim R 100
- Wu v The Queen [1999] HCA 52; 199 CLR 99