Citation: Abdallah v R [2019] NSWCCA 294
Court: Court of Criminal Appeal, NSW
Date: 17 December 2019
Judges: Bathurst CJ, Macfarlan JA, Hamill J (majority: Bathurst CJ and Hamill J; Macfarlan JA dissenting)
Background
The appellant was originally tried for murder. The jury acquitted her of murder but convicted her of manslaughter. That manslaughter conviction was subsequently quashed and a retrial ordered, on the basis that the jury had been misdirected on self-defence, which was a critical issue at the original trial.
At the retrial, the Crown prosecuted the appellant on manslaughter alone. The Crown's case, and the trial judge's directions, focused on whether the appellant had committed an unlawful and dangerous act causing death, and whether self-defence had been negated. Importantly, the Crown's closing address included material from which the jury could reason that the appellant had intended to inflict grievous bodily harm on the deceased, a matter directly relevant to the earlier murder charge.
Following conviction at the retrial, the appellant sought leave to appeal on a single ground: that the Crown's conduct at the retrial contravened what the appellant described as the "incontrovertibility principle," by running arguments inconsistent with her prior acquittal for murder.
Legal Issues
- Whether the Crown's conduct at the manslaughter retrial was inconsistent with, or controverted, the earlier acquittal for murder, in breach of the double jeopardy principle sometimes described as the "incontrovertibility principle"
- Whether the trial judge erred in permitting the Crown to conduct its case in that manner
- Whether, if a miscarriage of justice occurred, the appropriate remedy was an acquittal or a new trial
Decision
By majority (Bathurst CJ and Hamill J, with Macfarlan JA dissenting), the Court of Criminal Appeal held that the retrial had miscarried. The Crown's case at the retrial traversed factual territory that the prior murder acquittal had put beyond contention. In particular, the Crown's submissions invited the jury to reason that the appellant intended to cause grievous bodily harm, a matter necessarily negatived (at least implicitly) by the earlier acquittal for murder.
The double jeopardy principle extends well beyond the formal plea of autrefois acquit. It includes the "incontrovertibility principle," which prevents the Crown from advancing at a subsequent trial any factual proposition that is inconsistent with, or cannot be reconciled with, a prior verdict of acquittal. The majority found that the retrial crossed that line.
Bathurst CJ observed that the trial judge's directions did not clearly prevent the jury from reasoning in a way that controverted the earlier acquittal. While the trial judge was not without some basis for her approach, and had been guided by how counsel framed the issues, the resulting trial miscarried in a fundamental respect. The proviso that allows a court to dismiss an appeal despite a misdirection, where no substantial miscarriage of justice has occurred, did not apply here.
On remedy, the majority declined to enter a verdict of acquittal. The case was described as reasonably strong on its facts and the sentence had not yet expired. The question of whether to proceed with a further prosecution was left to the discretion of the Director of Public Prosecutions.
Orders Made
The orders section provided states:
- To the extent necessary, grant leave to the applicant to appeal against her conviction and sentence.
- Dismiss the appeals against conviction and sentence.
Note: These orders appear to reflect Macfarlan JA's dissenting position. The majority orders, as set out in both Bathurst CJ's and Hamill J's reasons, were to grant leave to appeal, allow the appeal, quash the manslaughter verdict, and order a new trial. There is an internal inconsistency in the orders as provided, likely reflecting the division between majority and dissent in the judgment.
Key Takeaways
- The double jeopardy principle operates beyond formal pleas of autrefois acquit: the Crown is also precluded from advancing at a subsequent trial any factual proposition inconsistent with a prior acquittal, even where the charges differ.
- A manslaughter retrial following a murder acquittal will contravene the incontrovertibility principle if the Crown invites the jury to reason toward a finding, such as an intention to cause grievous bodily harm, that the earlier murder acquittal had implicitly negatived.
- Where a manslaughter conviction results from such a flawed retrial, the conviction cannot stand and the proviso allowing dismissal despite misdirection does not apply where the miscarriage is fundamental.
- Quashing a conviction in these circumstances does not automatically produce an acquittal: the Court of Criminal Appeal may instead order a new trial, leaving any decision to discontinue proceedings to the Director of Public Prosecutions.
- This case arose in an unusual procedural context, as the Court itself acknowledged: the incontrovertibility problem is most acute when a prior murder acquittal is followed by a retrial on manslaughter as a standalone charge, a scenario the Court noted would rarely occur outside cases where a manslaughter conviction has been quashed on appeal.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 18, 24, 418, 419, 421
- Criminal Appeal Rules 1952 (NSW), r 4
Cases
- Pearce v The Queen (1998) 194 CLR 610
- Mraz v The Queen (No 2) (1956) 96 CLR 62
- R v Carroll (2002) 213 CLR 635
- Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458
- Garrett v The Queen (1977) 139 CLR 437
- The King v Wilkes (1948) 77 CLR 511
- R v Storey (1978) 140 CLR 364
- Cheung v The Queen (2001) 209 CLR 1
- Filippou v The Queen (2015) 256 CLR 47
- Sio v The Queen (2016) 259 CLR 47
- Abdallah v R [2016] NSWCCA 275
- R v Katherine Abdallah (No 5) [2017] NSWSC 1672
- Green v The United States (1957) 355 US 184