Supreme Court New South Wales Medium Neutral Citation: R v Karaali (No 7) [2023] NSWSC 235 Hearing dates: 21; 22; 23; 27; 28; February ; 1; 6; 9; 10; 13; 14; 15; 16 March 2023 Date of orders: 6 March 2023 Decision date: 06 March 2023 Jurisdiction: Common Law - Criminal Before: Campbell J Decision: Constructive murder cannot be put to the jury on any basis, including the specially aggravated s 86 offence Catchwords: CRIMINAL PROCEDURE — trial — whether constructive murder can be put to the jury as an alternate basis of legal responsibility — whether the accused was sufficiently on notice of the alternative basis of legal responsibility — direction to jury on alternative verdict of manslaughter Legislation Cited: Crimes Act 1900 (NSW), s 86 Cases Cited: Decision restricted [2020] NSWCCA 284 Category: Procedural rulings Parties: Rex (Crown) Abdul Karaali (Accused) Representation: Counsel: P Hogan (Crown) IH Wallach (Accused) Solicitors: Director of Public Prosecutions (NSW) (Crown) TNL Law (Accused) File Number(s): 2020/61211 Publication restriction: Not to be published until the completion of the trial EX TEMPORE JUDGMENT (Revised) 1. Mr Karaali is standing trial for the murder of Mr Houllis. The substantial issue in the trial has been and is whether he is the second person depicted in the CCTV footage, which is exhibit A, who emerged from a white utility vehicle. That person on the Crown case is the person who the jury will be asked to find beyond reasonable doubt directly inflicted the physical violence on Mr Houllis, which resulted in him sustaining a severe traumatic brain injury from which he died on 17 February 2020. 2. Last Wednesday afternoon, 1 March 2023, I discussed with counsel the directions I should give the jury and invited them to address me on specific matters they would wish me to raise. Given the nature of the central issue in the case, I raised with counsel whether there was a basis for leaving manslaughter for the jury's consideration. I asked that question, first, of the learned Crown Prosecutor and his response to my question as to whether there was a viable basis for manslaughter was as follows (368.27-33T): "In my view in this case there is not. What your Honour would have to do before you gave such a direction would be also to instruct the jury not only about the elements of murder, but about concepts of joint criminal enterprise and extended joint criminal enterprise and even constructive murder based on detained for advantage in company and occasioning actual bodily harm." 1. I then asked Mr Wallach of counsel, who appeared for Mr Karaali, his view and he submitted that although he did not propose, I interpolate for understandable reasons, to mention such a matter to the jury he submitted that I should. When I reverted to the Crown Prosecutor (372.21T), he referred me to the decision of the Court of Criminal Appeal in Decision restricted [2020] NSWCCA 284. With great respect the learned Crown Prosecutor, after further submission, stated (372.25T) that if the jury were not satisfied beyond reasonable doubt that the accused had the specific intention then manslaughter would be available, the jury has to rely upon inferential reasoning to find intent, essentially saying: "Well, when you look at the footage and you see the kick to the head and the stomp on the chest and the stomp on the head the only available inference is that he intended to cause a really serious injury', but if the jury weren't satisfied of that, then, with respect, your Honour's absolutely right, that there would still, in that circumstance, be a verdict of manslaughter available." 1. When discussion concluded, the matter was adjourned until today, 6 March 2023. Over the weekend Mr Wallach apparently had considered Decision restricted and wished to make some submissions to me about it, in substance he reiterated his view that I should leave manslaughter to the jury. 2. The Crown did not resile from his refined position but once again in passing mentioned the prospect of constructive murder. After further discussion he referred specifically to the various provisions of s 86(1) and (3) Crimes Act 1900 (NSW) upon which he relied. He submitted, in response to my question, that each of the elements of the specially aggravated version of the s 86 offence, which carries a maximum penalty of 25 years imprisonment, was capable of being satisfied by the evidence led at the trial and that he proposed to address the jury in relation to that matter as an alternative basis of Mr Karaali's legal responsibility. 3. Mr Wallach joined issue with the Crown on whether the evidence supported a prima facie case on the elements of the specially aggravated s 86 offence and in response to questioning by me said that Wednesday afternoon was the first time he could recall "constructive murder" having been mentioned at all in the case; that the Crown should not be allowed to raise it for the first time at this late stage; and that had he been aware that was the Crown case he would have conducted Mr Karaali's defence somewhat differently in as much as he would have cross-examined the eyewitnesses to events in the car park and surrounding area to seek to elicit evidence which excluded the elements of the s 86 offence and, in particular, the element of Mr Karaali having taken or detained Mr Houllis, assuming Mr Karaali to have been the second person. 4. It is clear that in the Crown case statement originally filed and, I am told, in the subsequent version, the Crown did not propound constructive murder as a basis of Mr Karaali's criminal liability. At paras 65 and 66 of the Crown case statement, signed on 24 September 2021, what I have referred to in argument as "murder simpliciter" is addressed as the alternative bases of joint or extended joint criminal enterprise. I repeat there is no mention of "constructive murder". 5. When the case was open by the learned Crown Prosecutor, he referred to facts, which it may be said suggested a joint criminal enterprise, in as much as at transcript 40.5-11 there was reference to a plan to set up Mr Houllis to exact revenge upon him for selling a fake set of AirPods to which Mr Karaali became a party. When the learned Crown Prosecutor referred to legal matters towards the end of his opening address, he referred to the requirement that the Crown prove that the accused person did the act that caused or contributed to the death of the deceased and that they did the act with a particular intention. He went on to say the Crown had to prove beyond reasonable doubt that the accused person had an intention to kill or to inflict really serious injury upon the deceased (46.35T). He also submitted that after they had considered the evidence and, in particular, the CCTV footage, which became exhibit A, that the jury would have no difficulty with each of the elements of the offence taken together with other relevant circumstances. 6. Although the issue has arisen in the context of my discussion with counsel about whether it was incumbent upon me to leave manslaughter to the jury in accordance with the authorities discussed in Decision restricted, the issue has to some extent evolved into this question of whether the Crown should be allowed to rely upon constructive murder given the circumstances I have outlined. I must say, when I was asking the Crown about the evidence in relation to the elements of the foundational s 86 offence he did respond in a fairly summary way, and I do not criticise him for that, but as far as the element of Mr Karaali detaining Mr Houllis was concerned his focus was upon the fact that once the attack upon him by the two men in the car park began he was not free to go anywhere and certainly not free to leave the car park. 7. I also acknowledge there is evidence that after the serious assault, which appears to have occurred, according to exhibit A, in or very near the car park, there is evidence that the two persons depicted in exhibit A led Mr Houllis into nearby streets before he finally collapsed; in which locations they were challenged by at least two of the witnesses who gave evidence about Mr Houllis's condition and "what was going on." At that stage there may have been a relevant taking before which actual bodily harm had been occasioned to him. 8. I have misgivings about whether the evidence does really support that first element of the s 86 offence. Although I acknowledge the evidence is capable of supporting the other elements, including the especially aggravating elements contained in subsection (3). I acknowledge that the evidence does not have to be inherently persuasive; it is a quantitative test, not qualitative, before the matter can be left to the jury. 9. Having said that and notwithstanding my misgivings about whether the evidence really is even at a prima facie level fit to be left to the jury, my real concern is about whether there has been practical injustice in Mr Karaali's defence, because of the matter not being raised either in the Crown case statement or in the opening; and first being raised, if I may say, with respect, in two passing references after the evidence had been closed and counsel and I were discussing other topics that needed to be covered in my summing-up; and even then, only when I raised with counsel the question of whether I should leave manslaughter to the jury. 10. I am of the view there is a viable case of manslaughter, as was acknowledged by counsel, on the basis of whether the jury would be satisfied beyond reasonable doubt of the actual specific intent necessary for the crime of murder. I remain of that view notwithstanding the prospect of constructive murder being raised. It would seem to me to be necessary to instruct the jury in relation to the elements of manslaughter whether or not constructive murder was left to them. It does not seem to me, necessarily, that leaving constructive murder to the jury is an insurmountable barrier to a verdict of manslaughter being arrived at by the jury properly instructed as to all the questions of law that may touch upon them reasoning to that conclusion. 11. The real question for me is whether at this late stage of the trial constructive murder should be permitted to be raised. It is always very difficult to answer the question about how the trial would have been conducted differently in hindsight if some apparently new point is sought to be raised by the Crown after the close of the evidence, indeed the close of the Crown case and the defence case. However, I am satisfied by Mr Wallach's response to my question that had he known that constructive murder was a live alternative, notwithstanding the central issue is whether Mr Karaali is then second involved, he would have approached his cross-examination of those eyewitnesses differently. As it was, because constructive murder was not on his mind, there was very little cross‑examination of any of them. 12. I am satisfied that if constructive murder had been a live issue throughout, he would have approached the cross-examination differently and would have sought to obtain evidence from those witnesses, which diminished the risk of Mr Karaali being found guilty on the basis of constructive murder if the jury were satisfied beyond reasonable doubt that he was the second person shown in exhibit A. 13. For those reasons, I decline to permit constructive murder on any basis, including the specially aggravated s 86 offence, being left to the jury. ********** 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: 17 March 2023