Citation: R v Katherine Abdallah (No 5) [2017] NSWSC 1672
Court: Supreme Court of New South Wales
Date: 22 November 2017
Judge(s): Lonergan J
Background
The accused stood trial for manslaughter by dangerous and unlawful act, arising from a stabbing that occurred on 6 February 2013. The fatal injury was inflicted during an altercation captured on CCTV footage, which was in evidence before the jury. Self-defence was the central issue at trial.
On the eleventh day of the trial, the Crown delivered its closing address. During that address, counsel for the accused made an oral application to discharge the jury, arguing that parts of the Crown's submissions had gone beyond what was appropriate for a manslaughter trial.
Legal Issues
- Whether the Crown's use of the words "aimed directly and deliberately" in its closing address, in the context of a manslaughter charge, improperly introduced concepts more appropriate to a murder allegation
- Whether the Crown's characterisation of the stabbing as intentional and purposeful was fairly open on the evidence, particularly the CCTV footage
- Whether the degree of prejudice arising from the Crown's address was sufficient to satisfy the high threshold for discharging a jury under the test in Crofts v The Queen
Decision
Lonergan J identified the applicable test as that stated by the High Court in Crofts v The Queen (1996) 186 CLR 427: before discharging a jury, the trial judge must be satisfied there is a high degree of necessity to do so. Relevant considerations include the seriousness of the event in context, the stage at which it occurred, the deliberateness of the conduct complained of, and whether a judicial direction could adequately address the problem.
Her Honour accepted that the Crown's closing address was directed to legitimate issues in the trial. For manslaughter by unlawful and dangerous act where self-defence is raised, the Crown must disprove self-defence beyond reasonable doubt. To do that, the Crown was entitled to address the jury on what the CCTV footage showed about the accused's actions and state of mind at the time of the stabbing. Those matters went to both voluntariness (an element of manslaughter) and to whether the accused genuinely and reasonably believed her actions were necessary for self-defence.
Lonergan J rejected the argument that the Crown's language was equivalent to asserting murder. The words "intent", "specific intent" or "premeditation" did not appear in the impugned passage, and they did not necessarily arise from the Crown's characterisation of the footage. The submission that the accused "armed herself" to "win the fight" was not, in her Honour's view, a submission directed to an intention to kill.
Having viewed the CCTV footage herself, Lonergan J was satisfied the Crown's characterisation of what it showed was one that was open to be made, even if its ultimate interpretation remained a matter for the jury. Notably, counsel for the accused accepted that any problem could not be cured by a jury direction, so no direction was given. The application was refused.
Orders Made
No orders were made in this decision.
Key Takeaways
- The Supreme Court confirmed that the threshold for discharging a jury is high: there must be a high degree of necessity, assessed by reference to the principles in Crofts v The Queen.
- Where self-defence is raised in a manslaughter trial, the Crown is entitled to address the jury on evidence bearing on the accused's state of mind and the voluntariness of the act, even if similar reasoning might be relevant to a charge of murder.
- Language describing a stabbing as "aimed directly and deliberately" does not automatically import the elements of murder where words such as "intent", "specific intent" or "premeditation" are absent from the submission.
- A Crown closing address will be assessed in context as a whole, rather than by isolating individual words or phrases.
- Where defence counsel concedes that a jury direction cannot cure an alleged problem, a court's only remaining option is to consider discharge, making the strength of the Crofts threshold all the more significant to the outcome.
Legislation and Cases Referenced
Cases:
- Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22