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Supreme Court 6 November 2020

R v Abdallah (No 2)

[2020] NSWSC 1515

Homicide
CRIME MANSLAUGHTER SELF DEFENCE WHETHER REASONABLE RESPONSE JUDGE ALONE TRIAL

Citation: R v Abdallah (No 2) [2020] NSWSC 1515
Court: Supreme Court of New South Wales
Date: 6 November 2020
Judge(s): Rothman J

Background

The accused and the deceased were cousins. On the evening of 8 February 2013, the deceased took the accused's high-value Mercedes-Benz without permission, drove it at twice the speed limit, fled a police stop, and damaged the vehicle in the process. Police attended the accused's home that night to inform her of events.

The following afternoon, on 9 February 2013, a street altercation occurred at Brighton-Le-Sands involving both women and two male associates. During that confrontation, the deceased suffered a fatal stab wound inflicted by the accused. There was no dispute that the accused had inflicted the wound.

The accused had previously faced a jury trial on a charge of murder, where she was acquitted. She was then charged with manslaughter and, on her application (opposed by the Crown), was tried by judge alone. The sole issue at trial was whether the stabbing was carried out in self-defence.

  • Whether the Crown had proved beyond reasonable doubt that the accused's conduct was not a reasonable response in the circumstances as she perceived them, so as to negative self-defence under the Crimes Act 1900 (NSW).
  • What constraints arose from the prior murder acquittal, and how those constraints shaped the issues remaining for determination in the manslaughter trial.
  • How self-defence operates differently in the context of manslaughter compared with murder.

Decision

Rothman J began by explaining the legal architecture of self-defence across murder and manslaughter. For murder, if the Crown cannot negative the accused's subjective belief that defensive conduct was necessary, a conviction for murder is foreclosed even if the response was unreasonable. That unreasonable but subjectively necessary response may result in a manslaughter verdict instead. For all other offences, including manslaughter, the Crown defeats self-defence by negativing either the subjective element (the belief that the conduct was necessary) or the objective element (that the response was reasonable in the circumstances as perceived by the accused).

Because the jury in the prior murder trial had acquitted the accused, the Court was required to proceed on the basis that she had lacked intent to kill or cause grievous bodily harm, and that any such intent arose only in circumstances where she subjectively believed her conduct was necessary for self-defence. That left one live question: whether the Crown had proved beyond reasonable doubt that the conduct was not a reasonable response in the circumstances as the accused perceived them.

The Court reviewed evidence from independent witnesses and CCTV footage of the altercation. On that evidence, the Court found the most likely factual scenario to be that the fatal wound was inflicted in a prodding motion by the accused's left hand while she was retreating and the deceased was moving towards her in an apparently aggressive manner. The whole altercation lasted only three minutes.

Rothman J acknowledged that reasonable people could reach a different factual conclusion, but emphasised that the onus remained on the Crown throughout. Because the Crown had not excluded the reasonable possibility that the accused's conduct was a reasonable response to the circumstances as she perceived them, self-defence was not negatived. The accused was accordingly found not guilty of manslaughter.

Orders Made

  • The accused was found not guilty of the charge of unlawfully killing the deceased on 9 February 2013 at Brighton-Le-Sands.
  • The accused was discharged.
  • Exhibit 2 on the voir dire was ruled inadmissible.
  • Exhibits were to be returned to the parties.
  • The proceedings were otherwise dismissed.

Key Takeaways

  • Under ss 418 and 421 of the Crimes Act 1900 (NSW), self-defence in a manslaughter trial is negatived by the Crown proving beyond reasonable doubt either that the accused did not subjectively believe the conduct was necessary, or that the conduct was not a reasonable response in the circumstances as the accused perceived them.
  • A prior acquittal on murder constrains the subsequent manslaughter trial: the court trying the manslaughter charge must not contradict the earlier acquittal and must proceed on assumptions consistent with it.
  • Where the only live issue is the reasonableness of the accused's response, the Crown bears the onus throughout of excluding that reasonable possibility beyond reasonable doubt; it is not for the accused to establish that the response was reasonable.
  • Sufficient doubt about the Crown's case can arise even where the court acknowledges that reasonable people might reach a different factual conclusion, provided that an alternative hypothesis consistent with self-defence has not been excluded.
  • Judge-alone trials in serious criminal matters are available in NSW under s 133 of the Criminal Procedure Act 1986 (NSW) on application by the accused, though the Crown may oppose such an application.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 418, 421
- Criminal Procedure Act 1986 (NSW), s 133

Cases:
- Douglass v R [2020] NSWCCA 284
- Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
- R v Katarzynski [2002] NSWSC 613
- Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27
- Sivaraja v The Queen; Sivathas v The Queen [2017] NSWCCA 236
- R v Abdallah [2020] NSWSC 1346 (prior reasons in the same proceedings)