Citation: R v Saliba (No 3) [2025] NSWSC 296
Court: Supreme Court of New South Wales
Date: 2 April 2025
Judge: Yehia J
Background
The accused, a 20-year-old man, was charged with the murder of his 18-year-old cousin following a fatal stabbing on the evening of 9 December 2022 at Bomaderry, NSW. The deceased sustained a wound to his upper chest that proved fatal. Both the accused and deceased had been in a garage with several other men before the incident.
The Crown's case was that the accused became enraged during a period of banter and slapboxing, went into the house and retrieved a knife, then stabbed the deceased twice with the intention of causing grievous bodily harm. The prosecution relied on admissions the accused had made in recorded conversations, his post-offence conduct, and eyewitness observations of his demeanour immediately before the stabbing.
The accused elected a judge alone trial. He pleaded not guilty to murder. Both parties accepted that manslaughter was available as an alternative verdict, even though it was not separately charged on the indictment.
Legal Issues
- Whether the fatal wound was caused by a deliberate act of the accused
- Whether the accused intended to cause grievous bodily harm to the deceased, as required for a murder conviction
- Whether the prosecution had excluded beyond reasonable doubt the reasonable possibility that the accused acted in self-defence
- Whether the elements of manslaughter by unlawful and dangerous act were established
Decision
Yehia J accepted that the act causing the fatal wound was a deliberate act of the accused. The court rejected the accused's evidence that the deceased had thrown a punch causing the accused to backpedal and inadvertently wound the deceased. The only account the court accepted as credible was contained in the accused's own recorded representations that the deceased had "shaped up" to him.
On the murder charge, the court was not satisfied beyond reasonable doubt that the accused intended to cause grievous bodily harm. Yehia J found instead that the accused's perception that the deceased had shaped up to him triggered an instantaneous surge of anger, described as going "from zero to a hundred," in which the accused stabbed the deceased. The court found this was consistent with a sudden, impulsive act rather than one accompanied by the specific intent required for murder.
On self-defence, the court was satisfied beyond reasonable doubt that the Crown had excluded this possibility. The accused's own recorded admissions indicated he perceived the deceased had shaped up to him, but the court found this did not give rise to a genuine belief that stabbing the deceased was necessary for the accused's own defence.
The court was satisfied that each element of manslaughter by unlawful and dangerous act was established to the required standard. The stabbing of another person with a large, sharp knife was plainly an unlawful act and an objectively dangerous one, in that a reasonable person in the accused's position would have recognised it exposed the deceased to an appreciable risk of serious injury. Accordingly, the accused was found not guilty of murder but guilty of manslaughter.
Orders Made
- The accused was found not guilty of murder.
- The accused was found guilty of manslaughter.
Key Takeaways
- A verdict of manslaughter by unlawful and dangerous act is available as an alternative to murder even where it is not separately particularised on the indictment, provided both parties accept its availability.
- Where the prosecution establishes a deliberate, unlawful stabbing with a large knife but cannot exclude beyond reasonable doubt that the accused lacked intent to cause grievous bodily harm, a murder charge may fail while a manslaughter verdict is still open.
- The test for self-defence under ss 418 and 419 of the Crimes Act 1900 (NSW) is entirely subjective: the question is whether the accused genuinely believed his conduct was necessary to defend himself, assessed from his own perspective and having regard to all his personal characteristics at the time. As confirmed in R v Katarzynski [2002] NSWSC 613 and Sivaraja v R; Sivathas v R [2017] NSWCCA 236, a mistaken or unreasonable belief may still ground self-defence unless the prosecution excludes it beyond reasonable doubt.
- In a judge alone trial under s 133 of the Criminal Procedure Act 1986 (NSW), the judge is required to set out the applicable legal principles, the findings of fact relied upon, and to take into account any warnings that would otherwise be given to a jury. This judgment illustrates that process in detail, including formal directions on standard of proof, witness credibility, and reliability of evidence.
- Recorded out-of-court admissions by an accused remain significant evidence of intent, even where the accused at trial characterises those statements as lies told to appear "tough" to friends. The weight to be given to such explanations is a matter for the tribunal of fact.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 418, 419 (self-defence)
- Criminal Procedure Act 1986 (NSW), ss 132, 133 (judge alone trials)
- Evidence Act 1995 (NSW), s 38 (unfavourable witnesses)
Cases
- R v Katarzynski [2002] NSWSC 613
- Sivaraja v R; Sivathas v R [2017] NSWCCA 236
- Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31