Supreme Court New South Wales Medium Neutral Citation: R v Abdallah (No 2) [2020] NSWSC 1515 Hearing dates: 12 - 16, 19 - 20 October 2020 Decision date: 06 November 2020 Jurisdiction: Common Law Before: Rothman J Decision: The Court makes the following order, declarations and/or findings: (1) On the charge that the accused, Katherine Abdallah, on 9 February 2013, at Brighton-Le-Sands in the State of New South Wales, did unlawfully kill Suzie Sarkis, the aforesaid Katherine Abdallah is not guilty; (2) The aforesaid accused, Katherine Abdallah, is discharged; (3) Exhibit 2 on the voir dire is ruled inadmissible; (4) Exhibits be returned to the parties; (5) Proceedings are otherwise dismissed. Catchwords: CRIME – Manslaughter – Self-defence – whether reasonable response – judge alone trial – accused acquitted Legislation Cited: Crimes Act 1900 (NSW), ss 418, 421 Criminal Procedure Act 1986 (NSW), s 133 Cases Cited: 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 Category: Principal judgment Parties: Regina (Crown) Katherine Abdallah (Accused) Representation: Counsel: K McKay SC (Crown) T Edwards (Accused) Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) Bannisters Lawyers (Accused) File Number(s): 2013/40978 Judgment 1. HIS HONOUR: The deceased, Suzie Sarkis, died of a stab wound on 9 February 2013. The accused, Katherine Abdallah, is charged with manslaughter in relation to that death. Formally, the accused's indictment reads that she did "unlawfully kill Suzie Sarkis" on 9 February 2013. 2. On application by the accused, opposed by the Crown, but granted by the Court, the trial occurred by Judge alone. The reasons for that have been included in previous reasons for judgment [1] issued by the Court, as presently constituted. 3. The stab wound that caused death was inflicted on 9 February 2013. There is no doubt that the stab wound was inflicted by the accused. The issues in the trial relate solely to whether that injury was inflicted in self-defence and, therefore, whether the act of stabbing the deceased was an unlawful and dangerous one, giving rise to manslaughter. 4. It is necessary, briefly, to refer to the history of the charges laid against the accused. While, on one view, that history is irrelevant, it allows for an understanding of the difficulty associated with the issues before the Court. 5. Initially, the accused was charged with murder. The difference between murder and manslaughter is that murder is an unlawful killing that occurs at the time that the perpetrator possesses the relevant state of mind to make out the charge of murder. That state of mind, relevantly, is an intention to kill or an intention to cause grievous bodily harm. 6. At the trial, before a jury, on the charge of murder, the accused was acquitted of murder. As with the current proceedings, the major issue in the trial of the accused on the charge of murder was whether the injury was inflicted in self-defence. 7. For obvious reasons, in a trial on a charge of murder, a jury has available to it, other than in very exceptional circumstances, a verdict of manslaughter. A verdict of manslaughter, in a trial for murder, may, relevantly, be reached in circumstances where the jury is not satisfied that the Crown has proved, beyond reasonable doubt, that the accused possessed the requisite intention, relevantly, to kill or to cause grievous bodily harm [2] , all other elements having been proved by the Crown. 8. Another means by which a jury can reach a verdict of guilty of manslaughter, when an accused has been charged with murder, is, where, if self-defence has been raised on the evidence, the jury is not satisfied that the Crown has, beyond reasonable doubt, negatived the circumstance that the accused believed that it was necessary, as a matter of self-defence (or, irrelevantly, the defence of another), to engage in the conduct that caused death, but is satisfied that the Crown has, beyond reasonable doubt, negatived the proposition that the conduct was a reasonable response in the circumstances, as the accused perceived them. [3] 9. In that regard, self-defence in relation to a murder charge works slightly differently from self-defence in relation to other offences. In all other offences, including manslaughter, self-defence requires the Crown to negative only one of the subjective intent or the reasonable response aspects of the issue. [4] For murder, the failure by the Crown to negative the accused's subjective belief that it was necessary to engage in the conduct as a matter of self-defence renders, even unreasonable conduct in response, a less serious offence than murder. 10. There are good and obvious reasons for the difference in approach. Murder is the most serious offence in the criminal calendar. The criminal law is predicated, ordinarily, on the possession by humankind of free will. It assumes that the perpetrator of a crime has the capacity not to commit it. In so doing, the law makes allowance for the incapacity of humans always to act rationally. There are defences in law, to almost all offences, relating to soundness of mind; the inability to understand right from wrong; and, in the case of murder, allowances are made for circumstances where free will may, as a matter of human nature, be suborned. Those circumstances include extreme provocation and excessive self-defence (where the response was not reasonable but the accused subjectively felt it was necessary). 11. Where, as here, in these proceedings, the charge preferred against the accused is not murder, but a charge of manslaughter, then self-defence is negatived by the Crown when it proves, beyond reasonable doubt, that one or other of the subjective aspect of self-defence or the reasonable response aspect do not apply. 12. The prior acquittal of the accused on the charge of murder requires that the Court not controvert that acquittal. As a consequence, the Court is required to presume both the lack of intent to kill or to inflict grievous bodily harm and, if such intent were ever to have existed, it only did so in circumstances where there was a subjective belief, held by the accused, that it was necessary to engage in the conduct that caused death in order to defend herself. 13. For practical purposes, given the concessions by the accused, the only issue before the Court is whether the accused's conduct was a reasonable response to the belief that it was necessary to engage in the conduct for her self-defence. In stating the question in those terms, the Court has, deliberately, not sought to deal with the onus, which remains on the Crown to negative the circumstance that the conduct was a reasonable response. Background 1. On one view of the limited nature of the decision that the Court is required to undertake, much of the material adduced in the proceedings was only marginally relevant. It concerned the circumstances leading up to the stabbing; the reaction of the accused to the stabbing; and other material. 2. Nevertheless, given its attention during the course of the trial, I will recite some of the background material. The deceased and the accused were cousins. 3. The deceased drove the accused's car on the evening of 8 February 2013, without her permission. The car was described as a new Mercedes-Benz AMG type vehicle. Some material before the Court, although findings are unnecessary, suggests the car is worth approximately $250,000. 4. At the time that the deceased drove the accused's car, the deceased was prohibited from driving because her licence had been suspended and because, even before the licence was suspended, the nature of her licence prohibited her from driving a car capable of such speed and horsepower. 5. Police identified the deceased driving at approximately 113 km/h in a 60km/h zone. The police then chased the vehicle being driven by the deceased and, eventually, stopped the vehicle southbound along Princes Highway at Wolli Creek. When the deceased pulled over in the car, she collided with the gutter, causing damage to the wheels that were fitted to the vehicle. Apparently, also in evidence, albeit indirectly, the wheels are approximately $4,000 each, although there is no evidence to suggest that the wheels would need to be replaced as distinct from repaired. 6. While the police were checking the deceased's details, the deceased fled the scene. Police chose not to pursue the deceased due to the manner and speed of her driving and the inevitability of a "critical incident" occurring due to the high-performance nature of the vehicle. 7. The details provided to police by the deceased were incorrect. Nevertheless, the police attended on the accused's premises later that night and informed the accused that her vehicle had been stopped in the circumstances described above. 8. The accused commented about the expensive nature of the vehicle; the expensive nature of the wheels; that the vehicle was on lease; and, on account of its recent purchase, was not supposed to be exceeding 4000 rpm. The police informed the accused that, in their opinion, it had been doing well over 4000 rpm. 9. To this exchange, the details of which are unimportant, the accused commented that the deceased "is going to be in serious trouble when I get her. You guys will probably get called back." 10. It is next relevant to recite the events of about 3:30 PM on 9 February 2013 in Crawford Road, Brighton-Le-Sands. A number of independent witnesses testified to an assault that occurred at that time in that location. Present at the assault were the deceased and the accused, together with two males, Jack and George Ayash. The two males have refused to provide statements. 11. The assault is relevant to the relationship between the accused and the deceased, but only marginally relevant to the question that faces the Court. During the course of the assault, the accused and the deceased were fighting in the street. At various times, the accused had the deceased in a headlock and had the upper hand, although each of them was engaged in the altercation. 12. The two males that were present during the altercation, Jack and George Ayash, were assisting the accused and at one stage one or both were holding the deceased down or back. The deceased left the area in the direction towards Bay Street. It is fair to say that, on the evidence before the Court, the accused had the upper hand in the physical altercation at Crawford Road. The evidence before the Court allows the Court to draw the inference that the reason for the altercation in Crawford Road was the use by the deceased of the accused's vehicle. 13. Eventually, both the accused and the deceased were at the deceased's premises. Following the altercation at Crawford Road, the deceased rang a friend and told her that the accused and Jack Ayash had bashed her. 14. There were also telephone conversations with other persons involving the accused and the deceased. In particular, the accused spoke with Ms Jeannie Sarkis, who is the deceased's aunt, being married to the brother of the deceased's father, and is the accused's aunt, the accused being her sister's daughter. The phone call occurred at approximately 5:30 PM on 9 February 2013 and the accused was, at that time, according to Ms Jeannie Sarkis, sounding normal and did not mention any dispute with the deceased. 15. The events in the townhouse, owned by the accused, are captured on closed-circuit television ("CCTV"). There seems to have been installed, on the premises, an extremely sophisticated security system, which captured CCTV footage from two cameras on the living room area level (cameras six and seven, capturing the kitchen and dining area; and the lounge area respectively); a camera in the upstairs foyer from which the entry to the bedrooms can be seen; and a camera that covers the parking space, which is downstairs from the living room area. As a consequence, there is CCTV footage that captures almost all of the events that occurred on 9 February 2013. 16. The moment when the fatal injury was inflicted is captured on CCTV footage and the events leading to that injury will be dealt with later in these reasons. At the moment, the Court is dealing only with the background circumstances and those matters that occurred earlier than the final altercation between the accused and the deceased. 17. It is unnecessary to describe in detail each and every one of the extracts of the CCTV footage that have been adduced into evidence. It is sufficient to note that they give an overall view of what was occurring in the premises during the course of the day. 18. There are three exhibits that contain extracts of the CCTV. Exhibit A, tendered by the Crown without objection, is a compilation of footage from cameras six and seven and, in relation to events after the stabbing, has had added to it the sound recording captured during calls made by the accused to emergency services. The sound, however, does not come from the CCTV footage; it has been added to the CCTV footage in a manner which, were there not an explanation, might give the impression that the sound and the video recording are from the same source. 19. Exhibit G, also tendered by the Crown, is a recording with 15 excerpts of the CCTV footage from the premises. Exhibit 1, tendered by the accused, is 14 extracts from the CCTV footage of the premises. There are also still images extracted from the CCTV footage which are part of Exhibit B in the proceedings and behind Tab O of that Exhibit. CCTV Footage 1. No amount of description can adequately reflect the conduct depicted on the video. Nevertheless, a short summary of that which is before the Court is appropriate. 2. Before summarising the CCTV footage, it should be pointed out that the accused's townhouse is on three levels. Upstairs are the bedrooms. I assume there are also one or more bathrooms on that level, but the evidence does not detail it. 3. The living room area is the middle level. There is a large lounge/sofa to the left of the front door. To the right of the front door is a bathroom and a utility room. 4. A short way past the large lounge, continuing further from the front door, is a matching single seater lounge and beyond that a table and dining area. To the right of the table, as one continues in the direction from the front door, is the kitchen. 5. The stairs, up and down, are situated between the utility room and the kitchen. Past the table, opposite the front door, is a back sliding door to the balcony and a small yard area, with a washing area. Downstairs, on the lowest level, is the garage. 6. Exhibit G captures a series of events from 8:21 AM on 9 February 2013, the date of the alleged offence, until 5:43 PM on the same day. Thereafter, Exhibit A depicts the events immediately before, during and after the infliction of the fatal injury. 7. Exhibit 1 depicts a number of events prior to 8 AM on 9 February 2013 and, in particular, events that occurred on the return of the deceased to the premises just after midnight on the night of 8 and 9 February 2013. Thereafter, it depicts some events in the morning through to almost 6:00 PM in the evening. Even though a summary by exhibit will be to some degree repetitive and not in chronological order, it seems that that may be the easiest way to summarise the evidence. 8. Exhibit G commences with a clip (hereinafter "clip 1") that commences at 8:21 AM and continues through to 8:27:38 AM. During the course of it, the deceased can be seen sleeping on a large lounge in the living room area of the townhouse. She wakes; goes back to sleep; and is otherwise inactive. The accused, wearing a red cap, seems frustrated; paces backwards and forwards, seemingly waiting for the accused to awake. 9. Clip 2, commencing at 8:33:20 AM and concluding at 8:38:57 AM, depicts a conversation between the accused and the deceased. The accused can be seen motioning towards the door whilst speaking with the deceased, and I infer that, in so doing, the accused was asking the deceased to leave, seemingly pleading with the deceased. The accused also talks on the phone. The accused leaves the premises for a short time. It is obvious that the front door of the townhouse has a deadlock. 10. The third clip, commences at 9:27:40 AM and goes through to 9:33:10 AM and depicts the accused returning; talking to the deceased; and sitting down next to her. 11. The fourth clip commences at 9:43:45 AM and goes through to 9:50:10 AM. The accused is no longer wearing her cap; the deceased is smoking and obtains an ashtray (which is more obvious from clip 5, which records the period from between 9:43:55 AM and 9:44:10 AM). At or about 9:49:16 AM, the accused slaps the deceased and shortly thereafter (9:49:39 AM) the deceased pushes the accused in the back. 12. Clip 6 commences at 13:13:58 PM and runs through to 13:19:16 PM, which records the period during which the deceased sat on the stairs leading up to the bedrooms and wrote the message which is in evidence before the Court. The message will be recited later in these reasons. The deceased then goes upstairs and comes back down again. 13. Clip 7 records the period between 14:59:10 PM and 15:04:04 PM, by which time the accused is wearing her pink top, a point on which the Court remarks only because that is the top she was wearing at the time of the infliction of the fatal injury and, otherwise, is talking to the Ayash brothers. Jack Ayash is on the phone, probably to the deceased, given the timing of the calls in Tab K of Exhibit B. 14. The accused comes out of the bathroom and obviously screams, which inference the Court draws from the fact that the cat was disturbed by what it was she was saying. She pushes George, not in a manner that was aggressive, and lights a cigarette. The accused talks with George and, again, bearing in mind the terms of Exhibit B Tab K, tries to call the deceased from the home phone. 15. The timing of clip 8 is between 15:27:20 PM and 15:27:54 PM. During this clip the accused comes downstairs and sets up her laptop on the table between the lounge and the kitchen. 16. Exhibit G, clip 9 records the time between 15:53:20 PM and 15:54:31 PM, during which the applicant seems to look at a passport and goes downstairs from the living area. The Ayash brothers come upstairs to the living area and Jack Ayash looks at the note to which previous reference has been made. 17. The note, which is before the Court in its original form and in a typed form, the latter being Exhibit T, is in the following terms: "I took car; to get doc; certificate; and hit up; Amy (prostitute); Took ur phone; call me from; Home number; I'm so sorry; [unclear but think it says 'can't'] sit and justify; I'm not like the rest; I love you unconditionally; I respect you Katherine; I really adore you; With my whole heart; love Suzie" 1. The note was written in felt pen in large writing on separate lines; it is smudged in part as a consequence of having had melting ice placed on top of it prior to the crime scene being established. 2. Returning to Exhibit G, an index to which is Tab G of Exhibit B, it is necessary to refer to clip 10 of Exhibit G. This clip, which records the period between 16:11:48 PM and 16:12:21 PM, depicts all four persons (the accused, the deceased, and the two Ayash brothers) at the accused's home. 3. In clip 11, which is only four minutes after clip 10, George Ayash is sitting at the table and Jack Ayash takes an item on the table upstairs, seemingly to the deceased. 4. Clip 12 of Exhibit G covers the period 16:46:21 PM to 16:47:38 PM. Jack Ayash and the accused are sitting at the table. George comes downstairs to the living room area and goes to the fridge and has a discussion with the accused. George collects some ice in a plastic bag from the freezer, presumably for the deceased. 5. Exhibit G clip 13 covers the period 17:00:20 PM to 17:01:04 PM and depicts the accused sitting at the table. The extract then depicts the deceased looking for something behind the couch cushions, to which later reference will be made. 6. Clip 14 of Exhibit G runs from 17:09:30 PM to 17:13:25 PM and depicts the deceased at the table smoking. She writes something on the palm of her hand which is depicted on photograph 3 of Tab S of Exhibit B, taken during the autopsy, and seems to be a mobile telephone number. The deceased talks on the phone; walks outside; returns; and puts the phone down. 7. Lastly, clip 15 of Exhibit G records the period between 17:41:10 PM and 17:43:19 PM, during which the deceased comes downstairs and goes to the table and is smoking. The accused is on the large lounge, on the phone. The accused gets up and remonstrates with the deceased. 8. Exhibit 1 is in the form of a memory stick (USB) and an Index thereto. There are 14 CCTV clips extracted on the Exhibit. 9. Clips 1, 2 and 3 depict the deceased returning to the accused's premises just after midnight, in the morning of 9 February 2013, and entering the living area from the garage or car space area. The deceased is seemingly drunk or affected in some way. The deceased is staggering and walks to the large lounge on which she lies down, covers herself with a blanket and falls asleep. 10. The motor vehicle is not in the car space during this time and I infer that the deceased did not drive to the premises but entered through the garage area. Thereafter, the accused seems concerned as to the welfare of the deceased who is unresponsive. These clips record between 00:05:00 AM to 00:18:58 AM. 11. Clip 4 of Exhibit 1 covers the period 01:36:18 AM to 01:37:12 AM and depicts the accused at the washing line. 12. Clip 5 of Exhibit 1 shows the accused returning from the clothesline through the backdoor. The deceased is still prostrate on the large lounge. 13. Clip 6 of Exhibit 1 covers the period between 8:20:00 AM and 8:39:44 AM and gives all four camera shots. It covers the period also covered by clips 1 and 2 of Exhibit G, but gives each of the camera shots instead of being confined to the living area. 14. It depicts the accused in the kitchen, looking for something. The deceased is lying on the lounge. It seems that the accused is waiting for the deceased to awake. The deceased stirs, eventually arises, looks in the mirror and proceeds downstairs to the garage area. 15. The deceased then returns and, again, lies down on the lounge, after having obtained something from the refrigerator. At or about 8:31:50 AM, the male, who seemed to be admitted into the premises in clip 5, leaves a bedroom and proceeds downstairs. At this stage, the deceased is sitting on the lounge and accessing her phone. 16. The accused leaves what appears to be her bedroom, although that bedroom is unable to be seen from the camera (channel 8), the door, or the edge of it, can be seen at the edge of the camera shot. The accused proceeds downstairs and talks with the deceased. 17. I infer from the body language and motions of the accused that she is not happy with the deceased. The male and the accused leave the premises and the deceased gets off the lounge, obtains a tissue and seeks to wet it and remove what may have been a stain on her jacket. 18. In clip 7 of Exhibit 1 the accused returns to the premises and talks to the deceased. It covers the period from 9:27:44 AM to 9:50:15 AM and gives all four camera views. 19. The deceased, after talking with the accused again, lies down on the lounge and uses a laptop. The accused and the deceased are sitting next to each other on the lounge and talking with each other, seemingly, without disagreement. 20. The deceased proceeds downstairs and returns, having turned off the light. The accused uses the phone while the deceased goes into the bedroom from which the accused had previously left and then leaves. The deceased starts to put on her shoes and socks and, part way through that task, returns to the upstairs area momentarily before returning to the living area to complete the task of putting on her shoes and socks. 21. The deceased then leaves the premises through the front door. She returns at about 9:40 AM. Both the accused and the deceased proceed upstairs into the bedroom for a moment, after which the deceased leaves the bedroom. The accused has locked the door of the bedroom, denying the deceased entry. 22. At approximately 9:48 AM, the deceased obtains a small bottle, seemingly of pills, from behind the red cushion on the lounge; proceeds to open the bottle; and consumes one or more tablets with a swig of water. The bottle with tablets is not, from what can be seen in the video, a brand-name, over-the-counter medication. 23. The accused comes downstairs, sees the deceased consuming the tablets and remonstrates with her, slapping her, lightly, or motioning to slap her, after which the deceased gets off the lounge and pushes the accused in the back. The deceased then leaves the premises. 24. At approximately 9:52 AM, depicted in clip 8 of Exhibit 1, which continues from 9:52:10 AM to 10:01:00 AM, the deceased returns to the premises. The deceased looks for something on the table but cannot find it and proceeds upstairs. 25. Once upstairs, the deceased proceeds away from the camera along the upstairs corridor and then returns to the door of the accused's bedroom. The accused's door is locked and the deceased is unable to obtain entry. 26. The deceased is talking through the door and, I infer, asking to be allowed into the bedroom. The deceased becomes extremely agitated. 27. The deceased kicks at the door; bangs on the door; kicks more aggressively at the door; leaves momentarily; and returns to scream through the door, lunge at it and seemingly seeks to break the door down or open. The deceased seems wholly out of control. 28. While out of control, the deceased takes a running jump and/or lunge at the door, while kicking at the door. It is possible that the aggression and lack of control displayed by the deceased in this clip at about 10 AM is the product of the tablets taken at 9:48 AM, a short time before these events. I will return to this circumstance. 29. Eventually, the deceased gives up on seeking to gain entry to the bedroom, returns downstairs and obtains some items from the lounge and the table, before leaving the premises. Once the deceased had left the premises, the accused exits her bedroom, walks downstairs and out the front door, seemingly screaming at the deceased. Thereafter, the deceased and the accused return to the premises and both proceed into the accused's bedroom. 30. Exhibit 1, clip 9, covers the period between 10:18:00 AM and 10:19:45 AM. During this clip, the deceased leaves the accused's bedroom, which I infer she had been in since entering, as depicted in the previous clip. The deceased goes downstairs to the table; returns upstairs and re-enters the accused's bedroom. 31. The deceased is inside the bedroom for a matter of seconds (or less) and is standing at the doorway for a short time thereafter, also a matter of seconds. The deceased then proceeds downstairs, grabs something from the large lounge area and leaves the premises. 32. Exhibit 1, clip 10, covers the period from 10:37:00 AM to 10:38:25 AM. During this period, the deceased, the Court infers, has proceeded, after leaving during the period covered by the foregoing clip, to retrieve the Mercedes-Benz and arrives with the Mercedes-Benz in the premise's car park area. She has also, it seems, done some minor shopping. After alighting the car, the deceased proceeds upstairs into the living area and then immediately upstairs to the bedroom area. 33. The next clip in Exhibit 1 is clip 11, which covers the period between 13:13:58 PM and 13:19:15 PM. It shows the deceased at the table obtaining the notepad and a writing implement. She then, as was the case in the clip which forms part of Exhibit G, moves to the stairs; sits on or about the third step going up to the bedroom areas; and writes something. After finishing writing, the deceased takes the writing pad upstairs into the accused's bedroom and, seemingly, leaves it there. I infer that the written material is the note that is in evidence. 34. Clip 12 of Exhibit 1 covers the period 13:30:30 PM to 13:33:30 PM. It shows the deceased in the living area of the premises; proceeding to the downstairs area; then returning. The deceased proceeds, once more, to the downstairs area; walks around the Mercedes-Benz; enters it; and leaves in the car. 35. The second last clip is clip 13 of Exhibit 1 and covers the period between 17:00:22 PM and 17:02:00 PM. Clip 13 is generally unremarkable. It depicts the accused sitting at the table; the deceased walking downstairs from the bedroom area to the living area and sitting at the table, as the accused leaves the table and walks through the back door. The accused is seen mopping the floor around the kitchen table. 36. The last clip of Exhibit 1 is clip 14 and it covers the period 17:48:00 PM to 17:54:35 PM. This clip depicts the accused lying on the lounge. The accused gets up from the lounge and goes to the table; returns to the lounge and lies down. 37. The accused grabs a blanket and pulls it over her. In the meantime, the deceased is at the table seemingly texting on the phone. The car is not in the car space. 38. The accused is smoking and pulls the blanket over her, while lying on the lounge. The accused is also texting, having sought to use the telephone immediately before that. Then the accused is talking, seemingly in a manner that is louder than normal, to the deceased. She is talking at her from the lounge, while the deceased is sitting at the table. Thereafter begins the altercation that led to the fatal injury. 39. The deceased moves to the lounge area and, while talking on the phone, reaches for the area from which the deceased had previously obtained or placed the pills (to which references were made in one of the other clips). The accused pushes her arm away and prevents the deceased from gaining access to the item. 40. It is not certain whether the deceased is seeking to obtain the pills. It is likely. The deceased moves away; the accused gets up from the nearside of the lounge and remonstrates with the deceased. 41. The accused stands on the lounge, while continuing to castigate (seemingly) the deceased. The accused moved in a way that suggests she is demanding that the deceased leave the premises. The accused, once she has completed chastising the deceased, moves back to sit on the lounge and covers herself with the blanket. The last aspects, as already indicated, are the beginning of the final altercation, or seem to be. They are also covered by the CCTV footage that was tendered as Exhibit A, to which I now turn. 42. CCTV Footage of the Final Altercation 43. Exhibit A covers the period immediately before the fatal injury was inflicted and the beginning of Exhibit A covers a period also depicted in the last clip of Exhibit 1. Clip 14 of Exhibit 1 covers the period up to 17:54:35 PM. The period covered by Exhibit A commences at 17:51:00 PM and covers camera shots from a number of the cameras. 44. I have already described the events that occur at the commencement of the altercation, when describing clip 14 of Exhibit 1. I do not repeat that description. The evidence described so far left off with the accused, wearing a pink top, obtaining tissues from the kitchen table, returning to the lounge and motioning for the deceased to leave the premises. That occurs immediately before 17:54:05 PM. 45. The deceased is sitting at the table, with her back to the back door. The accused commences the process of lying down and taking the blanket; stops; and returns to the area immediately in front of the large lounge to further remonstrate with the deceased. 46. The accused returns to the lounge lies down and pulls the blanket over to cover her. Before doing so, she remonstrates or castigates the accused, if one were to speculate as to what was being said, judged by the body language, it was to the effect that the accused was saying this was her place and that the deceased should leave, in demonstrative terms. The accused has the phone in her possession and, having sat back on the lounge, sits up to remonstrate with the deceased again. 47. There is no suggestion that the accused was unwell or had a sniffle. Yet, during this episode, she was seen blowing her nose. I infer that she was upset and probably crying. She seems to wipe her eyes. 48. The deceased seeks to use the phone. It seems these are the calls between 17:53:21 PM and 17:56:32 PM from the home phone at the accused's premises to Mary Massih, a friend of the deceased. Mary Massih's number is the number written on the left palm of the deceased, to which earlier reference has been made. 49. At approximately 17:56 PM, the accused discards the blanket, but is reclining on the lounge. It seems she is still crying. 50. The deceased gets up from the chair, attending to her phone, either texting or looking at messages (or both). It is 17:56:21 PM. At 17:56:25 PM, seemingly frustrated at what is occurring or not occurring on the telephone, the accused throws the telephone onto the table, picks up a large vase, either ceramic or frosted glass, and smashes it on the floor in front of the stairs and in the area between the large lounge and the table. It is 17:56:27 PM. 51. The accused immediately gets up; seemingly to see what is going on. The accused had returned to the other side of the table and is standing with her back towards the camera. 52. The accused again remonstrates in a manner which, I infer, demands that the deceased leave the premises. It is 17:56:32 PM. 53. The deceased turns towards the table and, somewhat petulantly, propels papers that were on the table onto the floor. The deceased moves from the table, past the stairs and is situated alongside the mirror in the living room, headed towards the bathroom or the front door, when the accused climbs over the lounge and confronts the deceased. 54. From standing on the lounge, the accused kicks out at the deceased, without connecting and, it seems, without intending to connect. The accused steps down from the lounge and confronts the deceased at the living room mirror. She lashes out, arguing, arms flailing, without, it seems, connecting. On this occasion, she lashes out with her left hand. It is possible she may have fleetingly connected. It is 17:56:39 PM. 55. The accused, seemingly yelling at the deceased, turns to return to the lounge; stops; returns; and strikes out, again with her left hand, at the deceased. It is now 17:56:48 PM. 56. The accused yells at the deceased more. 57. At 17:56:52 PM, the deceased turns towards the stairs and deposits the purse and other items she is carrying onto the second step. The deceased turns to face the accused, who has started to return to the lounge. The deceased pulls up each of her sleeves and rushes at the accused from behind hitting her body with her shoulder and pushing the accused onto the lounge. The deceased continues to attack the accused; moving on top of her; and punching with a closed fist into her head and body. It is now 17:56:59 PM. 58. The deceased, through the strength of her attack, pushes the accused off the lounge towards the camera, still arms flailing, directed at the accused, but connecting. It is now 17:57:00 PM. 59. The accused is on the floor; the deceased is on top of her, punching her with a closed fist to the head and body, most aggressively. It can only be described as pummelling. It is extremely aggressive. 60. The punches land repeatedly to the back of the head; the kidneys; and various parts of the accused's back. There is a slash at the back of the head with an open hand and the deceased gets to her feet; the accused is prone on the floor. The deceased steps back; climbs onto the lounge by stepping over the accused; and kicks a drink container from the lounge (or the table next to it) onto the floor, with the contents of the container spilling onto the floor. 61. The deceased moves from the other side of the lounge towards the table and reaches the table. The accused, having been extremely still, moves. She holds her side and her head in pain. It is 17:57:21 PM. 62. She also holds her back. The accused gets to her knees as the deceased turns from the table and moves in the direction of the lounge. It is 17:57:24 PM. 63. The accused, somewhat precariously, gets to her feet. She is holding the back of her head and is obviously in some pain. The deceased is moving past the stairs in the direction of the front door. 64. The accused, in pain, moves back to her knees with her torso on the lounge and her knees on the floor. She still holds the back of her head. The deceased is moving still towards the door and is between the accused and the living room mirror. It is 17:57:29 PM. 65. The deceased turns; steps onto the lounge; she has an object in her right hand. She walks across the lounge and kicks the accused. 66. It is not clear precisely where the kick lands but it seems to be in the left rib area of the accused. The accused turns so that her head is away from the lounge. She is still on her knees on the floor and obviously in pain. 67. The deceased steps off the lounge on the camera side of the lounge and slips on the floor. It seems that the object in her hand, which looks as if it was a phone, was dropped. 68. After slipping on the floor, the deceased returns to her feet; she steadies herself and she starts to kick the accused with her right leg. It is 17:57:39 PM. 69. She kicks and hits out at the accused with both hands. The kick lands in the right rib area; the hands land in the middle of the accused's back. 70. The deceased strikes the accused on the head. The accused rises on her knees; she is still on her knees on the floor, her right hand holding her rib region and her left hand holding her head. 71. The deceased moves in and hits out at the accused again; this time to the head, landing five or six times. It is now 17:57:50 PM. 72. The accused is now face down on the lounge; her knees on the floor, holding her left hand to her head, seemingly protecting it, and her right hand to her right rib region. The deceased takes a step away from the accused, turns and screams at her. The deceased is extremely aggressive. It is 17:57:53 PM. 73. The deceased strikes out, this time with an open hand, once more to the accused's head. It seems, from the video that the accused is in significant pain. The deceased strikes again, just as the accused was rolled over so that there was contact with her face. 74. Once more, the deceased hits out at the accused, overpowers her and grabs her from above. The accused is now sitting, legs bent on the floor with her back against the lounge. The deceased has one leg on the lounge, the other leg on the floor and is attacking the accused's head and upper regions. It is now 17:58:06 PM. 75. They struggle, albeit in a circumstance where the deceased plainly has the upper hand. The accused seems to be seeking to extricate herself from the situation. The deceased is holding the accused's left hand down and, to the extent still possible, attacking the head and neck region of the accused. The deceased lets go and strikes out once more with her right hand to the head of the accused. 76. The accused is wholly overpowered. The deceased steps back and once more pulls up the sleeves of her jacket. The deceased moves towards the accused; the accused wholly defensively puts up a hand to stop any further attack. No attack emanates at that time. Instead, the deceased takes the phone off the lounge and throws it, aggressively, onto the floor, seemingly trying to break it. It does not break. The deceased picks it up again and smashes it once more into the ground. It is 17:58:37 PM. 77. The accused rises to her feet and lunges at the deceased, seemingly grabbing at her head while the deceased is grabbing at the body of the accused. The two struggle. The accused kicks at the deceased and pushes her down onto the single seater lounge that lies between the larger lounge and the table. Not all events on the single lounge are visible from a camera. Some reflections of the events can be seen from the living room mirror. 78. The deceased is pushed back onto the single lounge; the accused lunges at her with her left leg and starts to hit at her. The accused is now on top of the deceased, who is lying supine across the single lounge, her feet on the floor and her head over the edge of the single lounge. From a combination of the vision from the living room mirror and camera 7, it is fair to say that with the accused on top of the deceased there is a short respite in the punching and kicking and not much movement. It is now 17:58:45 PM. 79. The mirror does not disclose any punching. Rather, it seems that the accused, having pinned the deceased on the lounge is screaming at her. It is not possible to be definitive. 80. At 17:59:13 PM, the deceased, using her position with her head over the lounge, rolls over onto the floor bringing the accused with her. At 17:59:25 PM, the accused, who is bare foot, is in a kneeling position next to the single lounge. There is little movement that can be discerned. The pair are between the cameras and unable to be seen. 81. At 17:59:39 PM, from camera 6, the accused is seen, just in the camera frame, her right leg on the floor, struggling, it seems, with the deceased. The deceased has once more gained the upper hand. There is kicking and punching. The accused kicks out at the deceased defensively. The deceased, at this point, has the upper hand and forces the accused back. The accused turns and runs towards the kitchen, followed, if not chased, by the deceased. It is 17:59:42 PM. 82. The accused seems panicked. She runs to the kitchen and goes to the knife block. The deceased follows her, quite deliberately, but not running. The deceased kicks a tissue box from the floor onto the sink. 83. The accused has grabbed two knives, one of them large. She approaches the deceased and stands her ground. She flails with the knives at the deceased. It does not seem that either knife connected, but there may have been a light scratch, of which there is evidence following the autopsy and to which I will later return. 84. If there were a connection at this point with the knives, or one of them, held by the accused, it was or seemed to be with the right arm of the deceased, by the knife held in the left-hand of the accused. There was also a slashing action to the left side of the deceased. The knives are being used in a slashing manner and not a stabbing or poking manner. 85. The accused retreats further into the kitchen and the deceased follows her. They are facing each other. As the accused retreats and the deceased follows her, threateningly, or seemingly so, the accused lashes out with her left arm, in a poking motion. 86. It seems, that this last action inflicted the fatal injury. It strikes the deceased in the right side of the chest. The deceased pulls back, as does the accused. There is a momentary lull in hostilities. The deceased moves back further. It is 17:59:56 PM. 87. The deceased then, obviously in pain or suffering from the injury, moves to the table, leans her right hand on the table and is doubled over. She has been fatally injured. The deceased then lies, face down, with her torso on the table and her feet on the floor. The accused moves to the lounge area. It is 18:00 PM, almost precisely. The deceased staggers from the table, examining blood (or so I infer) on her jacket and collapses on the floor next to the lounge. She is motionless. 88. The accused then puts down the knives on the table and seeks to attend to the deceased. 89. In the meantime, the accused has returned to the lounge, while holding the knives, and picks up the phone that was sought to be smashed earlier. It seems that the accused, during that period, was unaware of the seriousness of the injury inflicted upon the deceased. 90. At 18:00:42 PM, the accused places the knives on the table and, as already stated, moves immediately to attend to the deceased. At 18:00:46 PM, the accused rolls the deceased over to assist. At 18:01:00 PM, the accused seeks to use the phone, it would seem to call emergency services. 91. Exhibit B, Tab J evidences that the accused's phone received two calls and four text messages between 17:56:52 PM and 18:02:08 PM. The first 000 number is recorded as 18:02:09 PM. However, there may be an inconsistency in the time recording by the camera and the telephone records (or, for that matter, the emergency reception receiving the 000 call). Nevertheless, there is, on the camera, at 18:01:15 PM, plainly vision of the accused seeking to call somebody. That does not accord with the phone records; at least not precisely. 92. Thereafter, the evidence reveals the call to the emergency number and the conduct of the accused. The Crown submits that the terms of the conversation with the emergency reception are inconsistent with what was, in fact, occurring at the accused's premises. This may be a timing issue. It may not be. 93. At one stage, the Crown sought to rely upon these inconsistencies as lies or conduct displaying a consciousness of guilt. That reliance was ultimately withdrawn, but some attention will be paid to those issues later in these reasons. 94. It is clear from the 000 call that the accused was distraught and totally overcome, if not irrational. She is screaming; the first call is disengaged; and she can hardly be understood. 95. During the course of the proceedings I raised the dubbing of the 000 call onto the tape. The sound commences at 18:02:10 PM, or thereabouts, but that is well after the phone is sought first to be used. That timing difference may account for what are said to be some inconsistencies. 96. Nevertheless, the sound recording of the 000 call is informative and there can be little doubt that the accused sought to clean the knives used in the fight with the deceased. There are some inconsistencies, it would seem, between that which is said to the emergency reception operator and the accused. Part of that which is incorrect seems to be information that is deliberately misleading, at least. 97. The accused refers to the injury being inflicted by the vase, when, plainly, it was inflicted by the knife. There is a reference to the offender, who the accused says is no longer in the premises, although at one stage the accused says the offender is on the floor. There is a degree of irrationality and/or panic evidenced by the call. It seems that the second call, when the operator rang back to the accused, has been aligned as precisely as possible with the visual depiction in the videos. 98. Although the Crown relied upon the accused saying that there was pressure on the wound at a time when there was not, properly analysed, by the time the accused said there was pressure on the wound she had moved to the deceased's side and was in fact placing pressure on the wound to stop the bleeding or did so immediately after. The accused, during this time, was shaking her head and her chest was moving up and down. 99. At 18:10:56 PM, the accused informs the operator that the deceased's chest has stopped moving. Thereafter the accused panics, puts the phone down while the operator is talking to her and asking her about medical equipment. The accused leaves the premises, goes outside and screams. 100. She returns to the side of the deceased, screaming her name. She tries, desperately, to massage the deceased's chest. A male, not an ambulance officer, walks into the open front door at 18:13:34 PM. Another arrives at 18:13:57 PM. A third person arrives. At 18:14:23 PM, the ambulance officers enter. Directions of Law 1. The Court is required to give itself directions of law, before dealing with the determination of the verdict. Even though these directions would ordinarily be given to a jury and, to some extent, are trite, s 133 of the Criminal Procedure Act 1986 (NSW) requires a verdict, in a judge alone trial, to be by way of judgment, which includes the principles of law to be applied and the findings of fact on which the judge relied. Further, where a warning would otherwise be given to a jury, that warning is to be taken into account when dealing with the matter. 2. It should be clear from the foregoing that the Crown bears the burden and onus of proof in these proceedings. It is for the Crown, and the Crown alone, to prove, beyond reasonable doubt, each of the elements of the offence with which the accused is charged. Further, in the case of self-defence, which will be dealt with in more detail shortly, it is for the Crown, once the issue has been raised on the evidence, to negative either of the two aspects of self-defence, being the subjective or the objective criteria. 3. As earlier stated, the Crown now prefers a charge of manslaughter or unlawful or felonious killing. Relevantly, before a verdict of guilty of manslaughter can be reached, I must be satisfied that the Crown has established, beyond reasonable doubt, each of the following elements: 1. that it was the act of the accused in stabbing the deceased that caused her death; 2. that the stabbing was deliberate; and 3. that the stabbing was an unlawful and dangerous act. 1. There are three concepts which must be distinguished: a deliberate act; an intention to injure; and regret at an injury. One can regret the result of one's conduct. Such regret may be relevant ultimately if a court goes on to sentence an offender, but regret at the result of an offence is not the same as an absence of intention to injure (of any kind) and is different again from the determination of whether an act is a deliberate act. 2. One of the elements of manslaughter, and many other offences, is that the act, in this case, of stabbing, must be the deliberate act of the accused. An act is not deliberate if it is not voluntary; that is, if the act were not willed by the accused. In that situation, an unintended reflex action is not deliberate. A reflex action is involuntary. Many accidents may be the result of an involuntary act. 3. There is, however, a distinction between a deliberate act and an intended result. Thus, for example, in the case of murder, the assault must be performed with an intention to kill or to cause grievous bodily harm. Manslaughter, with which the Court is now concerned, does not require the accused to have intended to bring about a particular result. 4. Rather, in the way that the Crown has put its case in these proceedings, the Crown relies upon the stabbing as an unlawful and dangerous act. An act is unlawful if it involves a deliberate application of force to another person, without that person's consent. Plainly, in these proceedings, there has been a deliberate application of force to the deceased without the deceased's consent. However, in and of itself, that may not render the act, in these circumstances, unlawful and that is because of the operation of the doctrine of self-defence, on which I will shortly comment. 5. An act is dangerous, if a reasonable person in the position of the accused would have realised that by that act the deceased was being exposed to an appreciable risk of serious injury. Ordinarily, stabbing a person with a knife, or acting such that there is a risk of being stabbed, would be such that a reasonable person would realise that such an act exposed the deceased to an appreciable risk of serious injury. 6. Nevertheless, the Court repeats that it is unnecessary for the Crown to establish that the act of the accused was done with any particular intention to injure. The offence of manslaughter is complete, even where no injury was intended by the accused and even if the accused had not realised that she was exposing the deceased to such a risk of injury. The question is not whether the accused realised the exposure to an appreciable risk of serious injury, but whether a reasonable person in the position of the accused would have so realised. 7. In order for the Crown, in this case, to prove that the accused is guilty of manslaughter, the Crown must, in addition to proving the elements referred to above, also prove that the accused was not acting in self-defence. The accused, in that regard, bears no onus and does not need to prove that she was acting in self-defence. 8. Self-defence is often referred to as a 'defence', although that term is perhaps a misnomer. Where evidence raises the question of whether the accused was acting in self-defence, which, plainly, it does in these proceedings, it is for the Crown to negative self-defence, because, absent the Crown negativing self-defence, beyond reasonable doubt, the infliction of what became the fatal injury is not unlawful. 9. There are two aspects, already described in these reasons, to self-defence. The first aspect is the subjective aspect, namely that the accused believed that her conduct (i.e. the act of stabbing the deceased) was necessary to defend herself. The second aspect of self-defence is what is ordinarily termed the objective aspect, which requires the Court to determine whether the conduct was a reasonable response in the circumstances as the accused perceived them. Each of the foregoing aspects have been put in the positive sense, because they are more readily understood in that sense. 10. Nevertheless, I reiterate that it is for the Crown to prove that the accused did not believe that the conduct was necessary to defend herself; and it is for the Crown to prove that the accused's conduct was not a reasonable response in the circumstances as the accused perceived them. In each case, the Crown must prove that aspect beyond a reasonable doubt. 11. The current proceedings are complicated, as initially stated in these reasons, as a result of a prior trial of the accused. As a consequence of that trial, the accused, as has been stated, was acquitted of murder. As a consequence of that verdict, the Crown is unable to controvert the proposition that there was not an intention to cause grievous bodily harm or to kill. 12. Further, the Crown cannot controvert that the accused believed that her conduct, the act of stabbing the deceased, was necessary to defend herself. The only remaining question for the Court is whether that conduct of the accused, engaged in by the accused because she considered it was necessary to defend herself, was not a reasonable response in the circumstances as the accused perceived them. 13. During the course of the proceedings, as has been indicated earlier, the Crown initially sought to rely upon post-stabbing conduct of the accused as evidence of a consciousness of guilt. That conduct was the conduct in cleaning the knives and making statements that were inconsistent with facts that the accused knew to be true. 14. The Crown, initially, took the view that the relevant post-stabbing conduct disclosed a consciousness of guilt, in that it was conduct undertaken by the accused to avoid her being implicated in the commission of the offence with which she is now on trial. There are a number of answers to that proposition. Ultimately, the Crown did not persist with that use of the conduct. That concession was appropriate. 15. Apart from any other reason, and there are a number of other reasons to which I will not go, once the Court's task is confined to determining whether the conduct of the accused was a reasonable response in the circumstances as the accused perceived them, her state of mind becomes almost irrelevant and, certainly, whether or not she considered she had behaved unlawfully, or sought to escape the connection with the death of the deceased, is irrelevant to the determination of whether the conduct was a reasonable response. 16. It is a given that, for the purposes of these proceedings, the accused believed that her conduct was necessary in order to defend herself or that there is, on the evidence, a reasonable possibility of that proposition. 17. In determining the question of whether the response was a reasonable one, or, more accurately, whether the Crown has satisfied the Court, beyond a reasonable doubt, that the response was not a reasonable one, it is necessary to consider, entirely objectively, the proportionality of the response to the situation as the accused perceived it. [5] 18. In this case, what occurred, at least visually, has been proved beyond doubt. It is described in significant detail above. 19. While it is for the Crown to prove, beyond reasonable doubt, that the objective aspect of self-defence did not exist, when the Court is dealing with that which is "a reasonable response" and knows, beyond reasonable doubt, all that occurred and the circumstances of the infliction of the injury, the determination of what is a "reasonable response" is the determination of a community standard and does not as readily lend itself to determination on the basis of the burden and onus of proof. Conduct is either reasonable or it is not reasonable. 20. There are, however, aspects of the "objective" test that take it beyond a consideration only of the community standard. This is because that which is reasonable depends upon the circumstances as the accused perceived them. 21. Ordinarily, and without more, a reasonable response to a physical attack from an attacker who is unarmed would not involve the use of a weapon of any kind. Where a weapon is used, the more dangerous the weapon, the more severe the threat faced must be in order for the response to be considered reasonable. It is necessary for the Court to look at these issues. 22. Before considering and answering the question of whether the response has been proved not to be reasonable, it is necessary to look at the cause of death. The consideration of reasonableness will then be determined, in part, by the Court's view of that which are the circumstances, as the accused perceived them. 23. Before doing that, there are a number of other matters of law that the Court is required to note. First, as has been stated earlier, it is for the Crown to prove each of the elements of the offence, including negativing self-defence. There is no onus or burden of proof on the accused. 24. For that reason, amongst others, the accused is not required to give evidence and the fact that the accused did not give evidence is not a factor that the Court takes into account in determining whether the Crown has proved, beyond reasonable doubt, that the conduct was not a reasonable response by the accused in the circumstances as she perceived them. 25. There are aspects of the evidence adduced before the Court that seem to be relevant to the existence of a motive for the accused to injure the deceased. Those matters relate to the circumstance where the deceased took and drove the accused's motor vehicle, without the accused's permission, and the argument that ensued thereafter. That argument also included the fact that the deceased damaged the near side wheel of the accused's vehicle. But, in the context of the confined question with which the Court is concerned, motive seems irrelevant. Motive, in and of itself, cannot prove guilt, in any event. 26. For the foregoing reasons relating to relevance, I rule that the deceased's driving record, Ex VD-2, sought to be tendered by the accused, is not relevant. It does not render more probable, either directly or indirectly, the existence of a fact in issue in the proceedings. 27. Next, it is necessary for the Court to deal with inferences that the Court is entitled to take into account. The Court is entitled to draw an inference if, as a matter of common sense, the inference is able to be drawn from the facts that have been proved in the proceedings. To paraphrase that which has been said by others: there is nothing esoteric or peculiar to this process. It is plain common sense. To draw an inference that Z exists from the proof of facts A, B, and C, requires only that "human experience would be contradicted if" Z did not exist. 28. Each fact in a criminal proceeding does not need to be proved beyond reasonable doubt. That which must be proved beyond reasonable doubt are each of the elements of the offence and, if a fact were necessary for guilt to be established, then that fact must be proved beyond reasonable doubt. 29. If inferences are available that are equally consistent with guilt or innocence, then that inference cannot be used to establish guilt. On the other hand, some inferences may be proved irrefragably, or so overwhelmingly that, even where proof beyond reasonable doubt is required for that particular fact, the inference may be drawn to that standard. 30. The previous statement explaining that the Court will not take account of the fact that the accused did not give evidence in the proceeding applies not only to the fact that the accused did not give evidence, but also to the accused declining to inform the police of all of the facts giving rise to the infliction of the injury, accurately and without qualification. Frankly, in these proceedings, it is not clear what the accused could add, if the accused were to be called to give evidence. I suppose the accused could inform the Court, if, notwithstanding the trauma, she could recall it, of that which was said during the course of the altercation. But otherwise the facts are plainly before the Court and have been summarised in these reasons. 31. Lastly, I more fully deal with self-defence. As was stated at the outset of these reasons, the law recognises the right of a person to act in self-defence. The right to act in that way exists when defending oneself either from an attack or a threatened attack, even to the point of killing a person. 32. Thus, although that is not the Crown case in these proceedings, even if the accused were to have formed the intention to inflict an injury to kill or to cause grievous bodily harm, in order to defend herself, if the act were done in self-defence, as that term has been defined, it would not be an unlawful killing. 33. As has been explained, there are two circumstances that the Crown must negative. First, the Crown must negative that the person believes that the accused's conduct in stabbing the deceased was necessary in order to defend herself. That aspect is one that is incapable of being controverted in these proceedings. In other words, the Crown accepts, and the Court must accept, that the accused believed that her conduct in stabbing the deceased was necessary in order to defend herself. 34. The second aspect is, as I have put it, the objective test. Or, is what the accused did a reasonable response in the circumstances as she perceived them? As stated now a number of times, self-defence is not a defence, it is a matter that the Crown must negative. 35. As earlier stated, whether the accused's response by engaging in the conduct that ultimately inflicted the fatal injury to the deceased was or was not a reasonable one is a matter for determination on the basis of community standards. It does not depend upon whether the accused thought her response was reasonable. 36. It is a matter for the Court to consider whether it is reasonable. In doing so, I take into account all of the aspects of the accused's response, the conduct leading up to it, the injuries inflicted upon the accused and the nature, degree and means by which the stabbing was effected. 37. It is necessary for me to ask myself the question whether the Crown has proved beyond reasonable doubt that it was not a reasonable response. One of the issues that informs the determination of whether the Crown has proved, beyond reasonable doubt, that the accused's conduct was not a reasonable response is the availability of retreat. That is something that must be determined, but that consideration will occur after the Court deals with the cause of death. The Fatal Injury 1. An autopsy was conducted on the deceased, as one would expect. The Crown has received evidence from the pathologist, Professor Duflou, a well-known and well-respected Forensic Pathologist. It is unnecessary to deal with all of the matters given in evidence by Professor Duflou. It is, however, necessary to deal with a number of details. 2. First, there is no evidence before the Court that suggests that the knife wound was inflicted with significant force, indeed the CCTV footage indicates otherwise (as indicated by my earlier comment that the fatal wound was inflicted by a poking action). The fatal knife wound was inflicted in the right upper chest region. The appearance of the stab wound was typical of one expected from a stab with a knife. Death was occasioned in circumstances where there was a relatively small amount of damage caused by the knife wound itself. Rather, it seems the deceased died from cardiac arrest caused by a tension pneumothorax, which essentially, causes the lung to collapse because air separates the lung from the rib cage. It seems that the tension pneumothorax was treated, on-site, by decompressive thoracostomy. 3. The deceased died more quickly than would ordinarily be the case for someone suffering this type of knife wound. There may be a number of reasons for this. First, the injuries sustained to the head and neck, although not significant in relation to directly leading to death, may have contributed to death by causing release of adrenaline like substances, thereby increasing stress on the heart. 4. A further and most relevant factor is the fact that the deceased had recently used cocaine. The toxicology reports showed the presence of cocaine, benzoylecgonine, methylecgonine and levamisole. There was also a limited amount of benzodiazepine tranquilizer, alprazolam, detected. 5. According to the pathologist's report, it is possible that the deceased was intoxicated by cocaine, and possibly significantly so. It is also possible that the drug may have contributed to the sudden cardiac arrest of the deceased as a result of its pro-arrhythmogenic effect. 6. The deceased died of a heart attack, amongst other things, caused by the tension pneumothorax, which collapses the lung and causes the heart to beat to compensate for the lack of oxygen going into the lungs. 7. According to the pathologist on the question of the cocaine use: "cocaine and its metabolites could have had a similar effect [to the head and neck injuries]. Given the very rapid change of the deceased's heart rhythm to ventricular fibrillation, as observed by ambulance officers at the scene, it becomes a possibility that cocaine intoxication and blunt force injuries to the head contributed in bringing on this arrhythmia, and it is on this basis that these two conditions are listed as possible contributors to the death. It must be emphasised however that this is largely speculative only, and that the stab wound to the chest with a presumed tension pneumothorax alone could readily fully explain the death in this case." 1. It is unnecessary to determine which, of a number of causes, was the major cause of the death of the deceased. In terms of criminal responsibility, it is necessary only that the act from which it is alleged criminal responsibility arises substantially contributed to the death of another. [6] 2. There are a number of ways in which an act can be said to substantially contribute to the death of the deceased: the operating and substantial cause test, being where the assault by the accused is an operating and substantial cause of the deceased's death and which applies even though some other cause of death may operate; the natural consequence test, being where the accused's conduct caused the victim to act in a way which resulted in death and that act of the victim was the natural consequence of the act of the accused; and the reasonable foresight of consequence test, being where death is a reasonably foreseeable consequence of the actions of the accused. [7] 3. Plainly, the stabbing by the accused was an operating and substantial cause of the death of the deceased, whether or not the earlier injuries to the head and neck and the cocaine intoxication were also operating and substantial causes of death or contributing factors. 4. It is without doubt that the direct cause of death was the stab wound to the chest. This is the mechanism by which death was effected. Without the knife wound, the deceased would not have died. 5. The fatal injury was a 20 mm diagonally aligned stab wound on the right anterior chest wall, 125 mm to the right of midline in the upper outer quadrant of the right breast, 1.24 m above the level of the right heel. There was no abrasion around the wound, but there was a 60×30 mm blue bruise immediately adjacent to the wound, superiorly and to the right. Both ends of this wound were rounded. 6. The track of the stab wound passed medially, interiorly and posteriorly for a distance of between 7 and 10 cm, passing between ribs four and five on the right, without causing injury to the bone, and into the middle lobe of the right lung, where it penetrated for a distance of approximately 2 cm. No definite injury to major blood vessels or bronchi were identified within the lung tissue. There was, however, limited aspiration of blood into the right lung. Associated with this stab wound was 400 mL of predominantly fluid blood in the right pleural cavity. 7. Of other note was a 90 mm diagonally aligned interrupted scratch mark on the left anterior chest wall, extending from a position 90 mm to the left of the midline and 220 mm below the sternal notch to a location 165 mm to the left of the midline and 180 mm below the sternal notch. This is the scratch, the possibility of which was raised earlier in these reasons, arising from the initial fending motions. 8. Other injuries were noted, consistent with the altercation which I have described by reference to the CCTV footage, earlier in these reasons for judgment. 9. Each of the knives from the knife block in the kitchen was tendered into evidence. There are five of them. It is most likely that the two knives being held by the accused were Exhibits F2 and F3 with the larger knife, F3, in the right-hand and the smaller of the two, Exhibit F2, in the left hand. It is the left-hand that, I have determined, was used to inflict the fatal injury. 10. Each of those knives has a blade that is longer than 10 cm. In some respects, given what seems to be the absence of force associated with the stab wound, the deceased was extraordinarily unlucky. 11. If the stab wound had hit a rib, it is unlikely that any serious injury would have been occasioned. Certainly no life-threatening injury would have been inflicted. 12. It is clear from the video that there was no deliberate placement of the knife, which probably would have required some significant surgical skill, such that the rib was not hit. Further, if the knife had been prodded vertically rather than laterally, or less laterally, it is likely that it would have been impeded by one or other of the ribs, before damage of this serious nature could have been inflicted. The Verdict 1. From the foregoing, there are number of things that are clear and which the Crown has proved beyond reasonable doubt. Most of them are not in issue. 2. The deceased, Suzie Sarkis, died from a stab wound inflicted by the accused. The accused, Katherine Abdallah, stabbed the deceased and that stab wound was the substantial and operative cause of the death of Suzie Sarkis. 3. The act of stabbing the deceased was deliberate. It was neither involuntary nor accidental. Each of the foregoing has been proved by the Crown beyond reasonable doubt. I make it clear however that, even though the stabbing action was a deliberate act, the Crown has not proved that the accused intended to connect, with the knife. The CCTV footage is to the opposite effect. 4. The act that caused the injury was a dangerous one: the accused deliberately extended her hand, holding a knife, and a reasonable person in the position of the accused would have realised that by that act, connecting as it did with the deceased, the deceased was being exposed to an appreciable risk of serious injury. 5. That aspect of the third element of manslaughter has also been proved, beyond reasonable doubt. The only remaining issue and the only issue throughout this entire trial has been whether the stabbing was "unlawful". 6. As already explained, the deliberate application of force to another without that person's consent is, ordinarily, unlawful. In this case, the evidence requires, for the Court to determine that the act was unlawful, for the Court to determine that the act of the accused was not done in self-defence, as that term is defined in s 418 of the Crimes Act 1900 (NSW). 7. The Court has already explained the two aspects of self-defence. The first aspect, the subjective element, has not been negatived by the Crown. So much is dictated by the jury verdict on the charge of murder. 8. Were it not for the jury verdict on the charge of murder, I would, nevertheless, have reached the view that the Crown had not negatived the reasonable possibility that the accused engaged in this conduct because she believed the conduct was necessary to defend herself from the deceased. 9. Thus, as stated at the outset, the only remaining issue is whether the conduct was a reasonable response in the circumstances as the accused perceived them. It is necessary, having summarised the evidence, to understand the circumstances as the accused perceived them. 10. At 3:30 PM in the afternoon, during the fight at Crawford Road, despite the submission of the Crown, apart from the intervention of the males, it seems that each of the protagonists, the accused and the deceased, were punching and kicking. In particular, the cross-examination of Kathleen Parkes confirmed that the deceased kicked the accused in the course of the altercation. 11. The overwhelming evidence, otherwise, was that the accused had the upper hand in the altercation at Crawford Road. Nevertheless there is, as would be expected, some confusion in relation to the events. 12. The dominance of the accused over the deceased was, in large measure, as a result of the deceased being pinned down by one of the males. Further, there is a reference to the deceased's head moving backwards as a result of what was assumed was a punch from the accused, but, on evidence otherwise adduced, may have been from a push by one of the males. 13. That which is clear from the comments that were made during the course of the altercation is that it concerned the deceased's use of the motor vehicle and the damage to it. According to the lay witnesses, the altercation was not one, which, absent the subsequent death of the deceased, warranted police intervention or reporting. Two of the witnesses, who observed the altercation, referred to an issue which, in my view, needs noting. Ms Sylvana Sadek referred to one of the males telling the deceased to "relax". This is consistent with the evidence given by Daniel Nicole that one of the males referred to the deceased as being "Xanax-ed" and "off their head on Xanax", which may have been a reference to both the accused and the deceased. 14. The statement originally provided by Mr Nicole, which was read in evidence, referred to one of the males, while entering the vehicle with the accused, saying, seemingly of the deceased, "she's fucked up coz of the Xanies", which is a reference to Xanax, a trade name for the drug alprazolam, a form of benzodiazepine. Benzodiazepine was found in the toxicology report of the deceased. However, the level of Xanax in the deceased's blood is not such that it signified that the Xanax had been, at the time of death, taken recently and, according to Professor Duflou, the withdrawal effects of Xanax include aggression and hyperactivity. 15. The Court has already referred to the deceased consuming pills from a bottle and smoking. Xanax normally comes in packets. 16. The toxicology report on the deceased, at the time of her death, apart from recording that the deceased had Xanax in her system, which had not necessarily been taken recently, also recorded that the deceased had ingested cocaine and may have been intoxicated by cocaine to a significant extent. According to Professor Duflou, cocaine intoxication may lead to increased aggression. It also may lead to increased concentration, increased movement, increased activity and extreme rage. It also may lead to a level of irrationality and can impact, sometimes detrimentally and sometimes positively, on executive functioning. 17. The circumstances, as the accused perceived them, allow for the reasonable hypothesis that the accused understood that the deceased was intoxicated with cocaine and withdrawing from Xanax. The combined effect would render the deceased extremely aggressive and possessing extreme rage. More relevantly for current purposes, the Crown has not negatived the accused's perception, on the material before the Court, that such was the case. 18. Indeed, such a circumstance is consistent with the behaviour of the deceased. The deceased's behaviour, earlier described, in seeking to break down the bedroom door, when it was locked, was a display of quite extraordinary rage and aggression. That was much earlier in the day, but showed the deceased's reactions and aggression. The accused would have been aware of the fact that the deceased had consumed drugs. The accused sought to restrain what may have been the deceased's further ingestion of drugs by pushing her arm away when she sought to obtain access to the bottle again, as described earlier in the summary of the CCTV footage. 19. The most important aspect is the altercation itself. The altercation was remarkable for the degree of aggression displayed by the deceased. As described, the attack by the deceased on the accused, pushing her onto the large lounge and punching and kicking her, caused, from what one can observe of the reaction, significant pain. The accused was plainly injured by it. 20. Those injuries may not have been permanent or long lasting, but, at the time that this altercation occurred, they were being suffered by the accused. The deceased's attack on the accused at that point was prolonged and sustained. 21. Even though the accused, shortly after the altercation on the large lounge, was sitting on top of the deceased, on the single lounge, that part of the period is just as consistent with the accused trying to force the deceased to calm down. There was not much physical activity at the time, until the deceased rolled over and, when she did, gained the ascendancy. 22. The accused ran from the deceased into the kitchen. The accused grabbed the knives. She considered that was necessary to defend herself. 23. There are some aspects to the physical struggle that require comment as a result of the submissions of the parties. The accused was taller and more heavily set than the deceased. This, however, did not result in the accused having physical superiority and is not, therefore, significant. The final altercation discloses clearly the physical superiority of the deceased at that time, although this may be the effect of drugs. 24. At the final altercation when the fatal injury is inflicted, the deceased has her arms by her side. However, in my view, this does not signify surrender or a cessation of her violence. The deceased's aggressive intent is evident from the fact that the accused retreats and the deceased moves toward the accused. 25. I have dealt with the temporary superiority of the accused on the single lounge after the "large lounge attack" perpetrated by the deceased. The accused's superiority during that time was occasioned by the element of surprise. It seems the deceased did not expect the accused would recover so readily. 26. That temporary superiority of the accused does not detract from the overall superiority of the deceased. On the contrary, it emphasises it. Because, notwithstanding the accused sitting on the deceased, the deceased was able to extricate herself and regain ascendancy, it discloses the degree to which physical superiority was possessed by the deceased. 27. Over the previous 18 hours, there had been a series of physical altercations and displays of aggression, in the latter aspect, particularly by the deceased but also by the accused. It is necessary to deal with that which made the final altercation so different that it was a reasonable response for the accused to engage in the conduct that led to the death. 28. On each other occasion, the degree of aggression by the deceased was not as great. In the final altercation, the prolonged and sustained nature of the deceased's attack was obvious. 29. The Crown submits that, at some stage during the final altercation, the accused hit the deceased across the head with a four-pack of aluminium cans. This action is not clear in the CCTV footage and there is no scientific evidence, such as DNA or otherwise, to support it, but there are injuries consistent with one or more blows to the head. I accept this occurred for present purposes. Nevertheless, if this did occur, it puts the use of the knife in a different context. 30. The deceased had inflicted serious injuries on the accused in the "large lounge attack". The accused eventually gained fleeting superiority on the single lounge. Yet that fleeting superiority did not deter the deceased. If the deceased had been hit across the head with the four-pack, which I accept for present purposes, and the deceased persisted with her attack, there was no alternative, leaving aside escape, for the accused to seek to stop the relentless attack of the deceased. The deceased, once more, pulled up her sleeves, kicked the tissue box across the room and approached the accused aggressively. 31. The accused is likely to have considered that she would be the subject of really serious physical injury and that is why she grabbed the knives. Her conduct thereafter was more for the purpose of preventing an attack than occasioning one. Yet the deceased did not relent. 32. The Court is entitled to consider the alternatives available to the accused aside from resorting to the knives. But the accused is not required to prove anything. In particular, that the conduct in which the accused engaged was not the best option, or the most optimal form of defence, is not the test as to whether the conduct of the accused was a reasonable response. 33. The accused submits that the availability of escape is a matter relevant to the subjective aspect of self-defence and not the objective basis. [8] In my view, it is relevant to each aspect, but to be utilised differently. In the subjective aspect, it goes to whether an option rendered defence necessary in the mind of the accused. As to the objective aspect, even though the accused considered it necessary, the availability of escape may render defence not a reasonable option. 34. Were other responses available? On the entirety of the material, it seems that the level of aggression and rage, and possibly the strength, of the deceased was such that the accused was, assuming a degree of rationality not necessarily afforded to someone in the middle of a trauma, unable to overcome the deceased without assistance. 35. When she ran from the deceased and from the single chair/lounge, the accused could have run out the back door, which, on other evidence, provided an avenue of escape. It was February and would have been warm. The accused was barefooted, but that would not seem to have been an impediment, given that she was able to run across shards of glass or ceramic from the vase, broken by the deceased on the kitchen/dining room floor. 36. I take into account the availability of possible escape through the back door. Nevertheless, I do not consider that the retreat into the kitchen and the grabbing of the knife and its use were rendered unreasonable on account of that available and better option. Once the accused was in the kitchen, there was no escape. She was faced with the proposition that she would be overcome by the aggression and rage and/or physical prowess of the deceased or she would need to use a weapon to fend her off. 37. One of the first movements of the arms with a knife may have caused the scratch injury shown in Exhibit B, Tab S, photographs 6 and Tab T, QSC2053M, injury 2 described by Professor Duflou. The action of the accused, in that initial use of the knife, seems, as a reasonable hypothesis on the CCTV footage, to be a fending action, even though the accused was moving forward. 38. The fatal injury was inflicted as a prodding motion, by the left hand, while the accused was retreating and the deceased was moving towards her, seemingly aggressively. The whole altercation lasted only three minutes. 39. The conclusion that I reach is based on the factual scenario that has been outlined. I consider that scenario the most likely one, but it is a matter on which reasonable people may differ. For the purposes of reaching my conclusion, that some will differ with my conclusions of fact matters little. It is a reasonable hypothesis that the Crown has not excluded. 40. Similarly, while reasonable people may differ with the conclusion I have reached, it is for the Crown to negative the conduct as a reasonable response. It has not done that. 41. All in all, the Crown has not excluded the reasonable possibility that, in the circumstances as the accused perceived them, the conduct of the accused in her own defence which caused death, was a reasonable response. 42. For the foregoing reasons, the Crown has not discharged its onus of proof and negatived that the conduct of the accused was a reasonable response, in all the circumstances as the accused perceived them. For those reasons, I find the accused not guilty of manslaughter. The Court makes the following order, declarations and/or findings: 1. On the charge that the accused, Katherine Abdallah, on 9 February 2013, at Brighton-Le-Sands in the State of New South Wales, did unlawfully kill Suzie Sarkis, the aforesaid Katherine Abdallah is not guilty; 2. The aforesaid accused, Katherine Abdallah, is discharged; 3. Exhibit 2 on the voir dire is ruled inadmissible; 4. Exhibits may be returned to the parties; 5. Proceedings are otherwise dismissed. ********** Endnotes 1. R v Abdallah [2020] NSWSC 1346. 2. Grievous bodily harm is really serious physical injury. 3. Crimes Act 1900 (NSW), s 421. 4. Crimes Act 1900 (NSW), s 418. 5. Sivaraja v The Queen; Sivathas v The Queen [2017] NSWCCA 236 at [122]; 6. See Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 at [15], per Gaudron and Gummow JJ; also per McHugh J in Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27. 7. Douglass v R [2020] NSWCCA 284 at [125]. 8. Sivaraja v R; Sivathas v R [2017] NSWCCA 236 at [143]-[145]; R v Katarzynski [2002] NSWSC 613 at [24]-[25]. 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: 06 November 2020