Supreme Court New South Wales Medium Neutral Citation: R v Abdallah [2020] NSWSC 1346 Hearing dates: 16 September 2020 Decision date: 02 October 2020 Jurisdiction: Common Law Before: Rothman J Decision: (1) Pursuant to the terms of s 132 of the Criminal Procedure Act, Katherine Abdallah, in relation to the charge of one count of manslaughter, be tried by judge alone; (2) The trial will commence on Monday, 12 October 2020 and continue to conclusion. Catchwords: CRIMINAL PROCEDURE – Manslaughter – Judge Alone Trial Application by accused – Crown opposition – interests of justice - self-defence issue of reasonableness – complicated issues associated with prior acquittal for murder and overturned manslaughter verdicts – incontrovertibility – application granted. Legislation Cited: Commonwealth Constitution, s 80 Crimes Act 1900 (NSW), ss 418, 421 Criminal Procedure Act 1986 (NSW), s 132 Cases Cited: Barca v the Queen (1975) 133 CLR 82; [1975] HCA 42 Carr v Baker (1936) 36 SR (NSW) 301 Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317 R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86 The State of Western Australia v Rayney (2011) 42 WAR 383; [2011] WASC 326 Category: Procedural and other rulings Parties: Katherine Abdallah (Applicant) Crown (Respondent) Representation: Counsel: T Edwards (Applicant) K McKay SC (Respondent) Solicitors: Bannisters Lawyers (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2013/40978 Judgment 1. HIS HONOUR: The accused, Katherine Abdallah (hereinafter "the applicant"), applies to the Court for a judge alone trial. It is necessary to deal with the history of the litigation involving the charges laid against the applicant. The Court can be brief. 2. The history of the charges is an unfortunate one. The Court is to hear the charge for manslaughter preferred against the applicant as a result of an order for a new trial issued by the Court of Criminal Appeal on 17 December 2019 (hereinafter "the second appeal"). 3. In 2015, the applicant stood trial in the Supreme Court on a charge of murder (hereinafter "the first trial"). The jury acquitted the applicant of murder but convicted her, inappropriately, of manslaughter (hereinafter "the first verdict"). I used the term "inappropriately", because the Court of Criminal Appeal quashed the conviction and ordered a new trial (hereinafter "the first appeal"). 4. At the new trial, which occurred in 2017 (hereinafter "the second trial"), the applicant, necessarily on account of the result of the first trial, faced the charge only of manslaughter. The jury returned a verdict of guilty (hereinafter "the second verdict") and the applicant was sentenced. 5. Subsequently, the Court of Criminal Appeal overturned that conviction on the basis of issues associated with the incontrovertibility of the first verdict, which was breached in the manner in which the jury was addressed and/or directed. As a consequence of the second appeal, the current trial would proceed, on the usual basis, namely, before a jury, subject to the current application. 6. For present purposes, it is necessary to note that the second appeal was a majority judgment in which Bathurst CJ agreed in the orders proposed by Hamill J, quashing the conviction and ordering a re-trial. Macfarlan JA was of the view that the appeal should be dismissed. To complicate matters further, on one reading of the reasons quashing the conviction, there is a difference in approach of Bathurst CJ and Hamill J. 7. The fundamental issue, with which it is unnecessary to deal at length at this juncture, associated with criminal charges, is that described by both Bathurst CJ and Hamill J, relying, as they do, on High Court authority, that a verdict, once reached, is incontrovertible and cannot be called into question in any subsequent proceedings. The principle goes well beyond the doctrines of autrefois acquit or autrefois convict and is more akin to issue estoppel as it applies in equity. 8. Briefly, it is impermissible for any issue decided upon in one criminal charge to be controverted by any direction or address to a jury (or any other trier of fact) in subsequent proceedings and, with some qualifications, by evidence. 9. In these proceedings, there is a video recording of some or most of the altercation between the deceased and the applicant. The Court, as presently constituted, has not yet seen that evidence. 10. Nevertheless, from the descriptions already provided in the sentencing judgments and in the two appeal judgments, it is clear that most of the altercation is captured on video. Plainly, the video was relevant to both the charge, as it was originally preferred, of murder and is relevant to the current charge of manslaughter. 11. The video is graphic and captures, as I understand it, the stabbing of the deceased by the applicant. It also captures some of the circumstances, being part or most of the altercation that occurred prior to the stabbing and which, on my understanding from reading the documents, involved some aggression by the deceased. 12. As is obvious, a video recording of the altercation and stabbing is of extremely high probative value. Nevertheless, an inference that may be available in the absence of appropriate directions, from the video itself, may be that the applicant formed an intention either to inflict grievous bodily harm (really serious injury) or to kill. It was the manner in which the possible formation of such an intention was addressed that gave rise to the issues associated with the incontrovertibility of the first verdict in the second appeal. 13. It is next necessary to deal with the principle of unanimity and its application to the path by which a jury decides on a verdict of murder and/or manslaughter. Notwithstanding the unanimity principle, or because of it, it is unnecessary for the members of the jury to be unanimous as to one or other of an intention to kill or an intention to inflict grievous bodily harm. Some of the members of the jury may be satisfied, beyond reasonable doubt, of an intention to kill, while others may be satisfied, beyond reasonable doubt, of the lesser intention, namely, an intention to inflict grievous bodily harm. 14. Nevertheless, if the jury is unanimous that the act is a voluntary, deliberate act that caused death (causation would ordinarily require a more detailed exposition), the jury is entitled to reach a unanimous verdict, as long as all of them are satisfied, beyond reasonable doubt, of either an intention to kill or an intention to inflict grievous bodily harm. For obvious reasons, I do not here deal with majority verdicts that may be available in certain circumstances. 15. As a consequence, once a jury is unanimous that they are not satisfied that the accused, at the time that the conduct that caused death, or was a substantial cause of death, occurred, possessed a state of mind being, relevantly, an intention to kill or an intention to cause grievous bodily harm (hereafter referred to as "the relevant intent"), the jury are required to acquit of murder. 16. There is another pathway to an acquittal for murder. That pathway involves the operation of the doctrine of self-defence. Under the doctrine of self-defence, it is for the Crown, where the issue arises, to negative the reasonable possibility that the accused held the subjective belief that it was necessary to take the action in order to defend himself or herself and, in such circumstances, to negative that the steps taken were, in all the circumstances, a reasonable response. 17. In relation to murder, where the subjective element of self-defence has not been negatived by the Crown, but the conduct is not a reasonable response in the circumstances as the accused perceived them, self-defence operates as a "partial defence", reducing liability for murder to manslaughter. [1] 18. In relation to any other charge, including manslaughter, the Crown is required to negative either the subjective state of mind, namely, that the accused perceived that the conduct was necessary to defend himself or herself or another person, or the reasonableness of the response in the circumstances as the accused perceived them. [2] 19. Thus, where a jury has acquitted on the charge of murder, but is unable to agree on the verdict as to the alternative charge of manslaughter, two distinct paths may have been the basis upon which the jury arrived at that impasse. First, it may have been agreed that it was not murder either because all of them agreed there was no intention to kill or inflict grievous bodily harm; or because all of them agreed that the accused, in carrying out the conduct that caused death, believed the conduct was necessary to defend herself; or some of them may have reached the first mentioned conclusion and the remainder of them the second mentioned conclusion, in which case the jury would have unanimously come to a verdict to acquit on murder. 20. It is that conundrum and its effect on the incontrovertibility principle that is the basis for the application by the applicant for a Judge alone trial. The current proceedings 1. According to the Crown case and the submissions made on this application, the Crown is to proceed with this charge on one count of manslaughter by unlawful and dangerous act. The issue at trial is self-defence. The issue at the first and second trials was self-defence; or it was at least the major issue. 2. Self-defence to manslaughter requires, as earlier stated, the negativing of either one of the subjective or objective aspects of self-defence. In this regard, the difference, if any, in the reasons for judgment of Bathurst CJ and Hamill J in the second appeal tend to merge. 3. It is only an unlawful homicide that is felonious. An act done in self-defence, which causes death, is not unlawful. 4. Similarly, an accident, not being the result of criminal negligence, which causes death, is not unlawful. As a consequence, the applicant having been acquitted of murder, there is no work left to be done for s 421 of the Crimes Act. 5. Excessive force inflicted as a result of a perception of the need to defend oneself, if it causes death, will result in a verdict of guilty of manslaughter, on a charge for murder. But, currently, there is no charge for murder. 6. As a consequence, the only current issue for a jury, or trier of fact, is whether there is a self-defence acquittal, pursuant to the terms of s 418 of the Crimes Act, to the only charge preferred, which is manslaughter. 7. Because the charge of murder has already been the subject of an acquittal and self-defence was the major issue in those proceedings, on its face, it would seem that the subjective aspect of the issue of self-defence has already been the subject of consideration and the Crown has not, beyond reasonable doubt, negatived that subjective element. The Crown says, as a consequence, the issue in this trial is the reasonableness of the response of the applicant and that depends, fundamentally, on community standards, which should best be determined by trial by jury. 8. While judges deal with the issue of "reasonableness", at least in civil cases, almost daily, the prima facie and primary responsibility for such an assessment in serious criminal cases should rest with a jury. In self-defence issues, the reasonableness of the response involves the application of community standards, which is one of the major reasons for jury trials. 9. Ordinarily, such an issue going to "community standards" would be a compelling reason to retain a trial by jury. As can be seen from the foregoing, this is not an ordinary proceeding. 10. There is some issue, about which I am not yet convinced, as to whether the submission of the applicant that a jury would be required to be told that the applicant did form an intention to kill or inflict grievous bodily harm was forbidden. Rather, the jury would be forbidden from reaching the view that the applicant formed an intention to kill or inflict grievous bodily harm without forming the subjective belief that it was necessary to defend herself from the deceased. I have little doubt that such an issue will be the subject of some debate during the course of the trial. 11. Further, there is some issue as to whether a jury, if it be a trial by jury, must be informed as to the first acquittal for murder. It seems, given the incontrovertibility principle, that the Court should inform a jury, if a jury be empanelled, of that fact. Otherwise, the jury may infer the relevant intent and inappropriately deal with the existence of a subjective belief as to the necessity to defend. The term "inappropriately" in the foregoing expression refers to a process by which a jury may deal with the formation of the relevant intent and the subjective aspect of self-defence in a manner that is inconsistent with the incontrovertibility principle that applies to the first verdict. 12. The remedy to such an approach would be very strong and carefully worded directions and it is an issue between the parties in this application as to whether such directions would have the effect of avoiding a breach of the principle. The only other method by which the danger of such unfair prejudice could be remedied would be by the exclusion of the video of the altercation, notwithstanding its extremely high probative value. But that is, fanciful, because it would, on the basis of consistency require the exclusion of almost all of the evidence. 13. This exclusion would be done on the basis of the danger of unfair prejudice caused by such evidence. The latter option is not, in my view, one that is, at least on the information currently before the Court as presently constituted, an appropriate course. 14. Next, the applicant submits that if, as is suggested by the reasons for judgment in the second appeal, the jury must be informed that, initially, a murder charge was preferred, that information would itself have a prejudicial effect on the applicant. It is not clear that the prejudicial effect would be an unfair prejudice. 15. In terms of impact on the jury, it seems to be no different from the effect of preferring a charge of murder and the judge directing an acquittal on murder but leaving open to the jury a verdict on manslaughter, if they were so minded. While such a course does not happen often, it does occur. Nevertheless, the applicant relies upon the impression, which the jury will have, that the preferred course of the prosecutor has been already compromised and, in the submission of the applicant, this would make an acquittal less likely, and, more relevantly, involve the jury in misusing the acquittal in a manner prejudicial to the applicant. 16. The applicant is correct that the functions of the jury in determining facts on the basis of the evidence adduced in the trial will be significantly constrained by the circumstance of the first verdict and, to a lesser extent, the principles adumbrated by the majority in the second appeal. 17. As a consequence of the foregoing, it is necessary for the Court, as presently constituted, to determine, pursuant to the terms of s 132 of the Criminal Procedure Act 1999 (NSW) whether the ordinary course, namely, that the proceedings be heard by a jury, ought to be disturbed. Section 132 of the Criminal Procedure Act is in the following terms: 132 Orders for trial by Judge alone (1) An accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for an order that the accused person be tried by a Judge alone (a trial by judge order). (2) The court must make a trial by judge order if both the accused person and the prosecutor agree to the accused person being tried by a Judge alone. (3) If the accused person does not agree to being tried by a Judge alone, the court must not make a trial by judge order. (4) If the prosecutor does not agree to the accused person being tried by a Judge alone, the court may make a trial by judge order if it considers it is in the interests of justice to do so. (5) Without limiting subsection (4), the court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness. (6) The court must not make a trial by judge order unless it is satisfied that the accused person has sought and received advice in relation to the effect of such an order from an Australian legal practitioner. (7) The court may make a trial by judge order despite any other provision of this section or section 132A if the court is of the opinion that— (a) there is a substantial risk that acts that may constitute an offence under Division 3 of Part 7 of the Crimes Act 1900 are likely to be committed in respect of any jury or juror, and (b) the risk of those acts occurring may not reasonably be mitigated by other means. 1. Obviously, given the nature of the written submissions by the applicant, the Court, as presently constituted, is satisfied that the accused has sought and received advice in relation to the effect of the application being sought by her and that advice has come from an Australian legal practitioner. [3] Further, it is the accused or, as referred to in these reasons for judgment, the applicant, who has sought the trial by judge alone and the Court is therefore not constrained by the terms of s 132(3) of the Criminal Procedure Act. 2. Nevertheless, it is for the Court to make the determination, because the Crown opposes trial by judge alone. 3. As earlier stated, ordinarily, where the issue before the Court is one that requires the application of objective community standards, and where there is opposition to a judge alone trial, a court would likely refuse a judge alone trial. [4] This is not an ordinary case. 4. In Commonwealth crimes for serious offences there is a constitutional guarantee for trial by jury. [5] I mention that provision, not because it has any relevance to the proceedings now before the Court, but because it embodies the important right associated with a trial by jury. 5. The statutory scheme, which allows for the Court to order a trial by judge alone, embodies a prima facie and primary position that serious offences will be tried by jury. The verdict of a jury enables the community standard as to criminal responsibility to be implemented and provides a sense of finality that trial by judge alone does not provide. A jury verdict of acquittal is unappealable. That is not the case in relation to a verdict after a judge alone trial. 6. Given the complicated legal principles that apply to the verdict that must be brought down, the fact that there is more readily available an appeal and that the verdict will and must include reasons for the verdict aids the transparency of the process on which the Court is required to embark and allows the parties to correct any error of principle more readily. [6] 7. The Court of Criminal Appeal, in Lane v R [7] , referred to the difficult task facing a jury in circumstances where the Crown must prove its case by inference and drew the distinction between inference and conjecture, [8] which is the situation in the trial now before the Court. 8. The Court of Criminal Appeal in Lane, supra, dealt with the drawing of inferences. These are principles of long-standing. Sir Frederick Jordan CJ in Carr v Baker [9] said: "In a Court of Justice, the question whether a particular fact has been proved must be determined by considering evidence and seeing whether the existence of the fact is probable in the light of that evidence. In a civil matter, it is necessary, in order that a fact be regarded as established, that the evidence should be such that it is more probable that it exists than that it does not. … In a criminal matter, it is necessary, if the fact is to be proved by the prosecution, that the evidence should be such that not only is it more probable than not that the fact exists, but that there is no reasonable probability that it does not: it must be proved that it is so probable that no reasonable doubt exists that it is the fact. In an ordinary action at law, it is the civil onus only which a plaintiff has to discharge, notwithstanding that the act sought to be proved is one which would support a criminal prosecution. It has been clearly and emphatically laid down by the House of Lords that in no case can affect be regarded as established unless its existence is at least a reasonable inference from some matter proved in evidence. It is not sufficient that there should be some ground for conjecturing that the fact exists. There must be evidence affording ground for treating it as existing as a matter of inference and not conjecture. The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible. Inferences of probability may range from a faint probability-a mere scintilla of probability such as would not warrant a finding in a civil action-to such practical certainty as would justify conviction in a criminal prosecution … is well-established that if there is no piece of evidence which, taken at its highest, is more than equally consistent with the existence and with the non-existence of a fact, it cannot be treated as established." 1. In the case of criminal proceedings, that inference must be, in the words of Sir Frederick Jordan CJ, irrefragable, or, more accurately put, give rise to a finding of the elements necessary to prove guilt beyond reasonable doubt or, otherwise expressed, for which, as earlier stated, there is no reasonable possibility inconsistent with guilt. 2. The Crown has helpfully adapted the comments of Hamill J in the second appeal to formulate a possible direction that the jury could understand and follow. Juries are presumed to follow the directions of law provided by the trial judge. The suggested direction is in the following terms: The law recognises the right of a person to act in self-defence from an attack or threatened attack. This right arises where two circumstances exist. The first is that the person believes that his or her conduct was necessary to defend herself. The second is that what she did was a reasonable response in the circumstances as she perceived them. Although it is referred to as a defence, it is for the Crown to eliminate it as an issue that she was not acting in self-defence. In this case, that as between the prosecution and the accused, it is conclusively established that (i) the applicant did not act with an intention to inflict grievous bodily harm and (ii) the prosecution cannot exclude the possibility that the accused acted in the belief that it was necessary to do what she did in self-defence. In this matter for the Crown to eliminate self-defence as an issue it must prove beyond reasonable doubt that what the accused did, in taking two knives and using them in the way she did as the deceased moved towards her, was not a reasonable response in the circumstances as she perceived them. 1. The difficulty with the direction, coupled, as it is, with a Crown case that alleges manslaughter by unlawful and dangerous act, is that it glosses over the issue of controversy. It is an extremely helpful and practical suggestion, but it glosses over the most obvious possibility, namely, that the applicant formed the relevant intent for murder but subjectively believed it was necessary to defend herself. It glosses it over by telling the jury that it can't be excluded, when the jurors will need, otherwise, to be informed it is for them to draw inferences; how such inferences are to be drawn; and that they are not bound by the judge's , or counsel's, views of the facts. 2. A jury that has viewed the video may, quite independently, come to the view that the relevant intent had been formed and question critically why the parties and the judge have ignored it. This will, assuming such a view is communicated to the Court, necessitate an explanation that the applicant has already been acquitted of murder and we would be back to square one. Nevertheless, the Crown has correctly framed the issue as being confined to whether the conduct was a reasonable response. 3. In this case, notwithstanding the view that the second limb of the self-defence issue requires the application of objective community standards of reasonableness, the nature of the proceedings and the inferences that may arise from the evidence otherwise adduced, the complexity of the earlier findings and verdicts, which are incontrovertible, and the constraints on fact-finding that are inherent in the task that would otherwise be the province of a jury, so complicate the proceedings on the findings of fact that it is, in the view that the Court takes, in the interests of justice that the trial should be judge alone. The course of confining the jury to one issue is so artificial and will, in my view, cause the jurors to question the directions to that effect and create a real danger that the jury undertake a decision-making task that has not been the subject of direction. 4. The other difficulty associated with the foregoing comment is that, in the situation facing the applicant, it may have been a "reasonable response" to form an intention to cause grievous bodily harm in order to stop the deceased's alleged aggression. If so, confining the issue in the manner suggested by the Crown, is to create an artificial restriction on the address that may be put to the jury as to the perceptions of a person in the position of the applicant and the reasons it was reasonable to respond in the manner that the applicant did. 5. For the foregoing reasons the Court orders: 1. Pursuant to the terms of s 132 of the Criminal Procedure Act, Katherine Abdallah, in relation to the charge of one count of manslaughter, be tried by judge alone; 2. The trial will commence on Monday, 12 October 2020 and continue to conclusion. ********** Endnotes 1. Crimes Act 1900 (NSW), s 421. 2. Crimes Act 1900 (NSW), s 418. 3. Criminal Procedure Act, s 132(6); cf the Affidavit of Abigail Bianca Bannister dated 11 September 2020. 4. Criminal Procedure Act, s 132(5). 5. The Constitution, s 80. 6. R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86; The State of Western Australia v Rayney (2011) 42 WAR 383; [2011] WASC 326 at [29]. 7. Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317 at [107], per Bathurst CJ and Simpson and Adamson JJ. 8. Barca v the Queen (1975) 133 CLR 82 at 104-105; [1975] HCA 42. 9. Carr v Baker (1936) 36 SR (NSW) 301 at 306-307. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 October 2020