Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Abdallah v R [2016] NSWCCA 275 Hearing dates: 17 August 2016 Date of orders: 02 December 2016 Decision date: 02 December 2016 Before: Hoeben CJ at CL at [1] Campbell J at [72] Button J at [87] Decision: (1) The appeal against conviction is upheld. (2) The conviction for manslaughter is quashed. (3) There should be a new trial on a count of manslaughter. Catchwords: CONVICTION APPEAL – manslaughter – altercation between two women leading to one stabbing the other – whether proper directions given as to manslaughter by excessive self-defence – whether if directions were erroneous a miscarriage of justice occurred – whether adequate directions given as to lies and consciousness of guilt – whether verdict unreasonable – conviction appeal allowed – Retrial limited to manslaughter ordered. Legislation Cited: Crimes Act 1900 (NSW) - ss 18(1)(a), 24, 418, 419, 421 Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 10, 21A(2)(j) Criminal Appeal Act 1912 (NSW) – ss 5, 6(1) Criminal Appeal Rules (NSW), r 4 Cases Cited: Baiada Poultry Pty Ltd v the Queen (2012) 246 CLR 92; [2012] HCA 14 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Doggett v The Queen [2001] HCA 46; 208 CLR 343 Filippou v The Queen [2015] HCA 29; 256 CLR 47 Grant v R [2014] NSWCCA 67 Hadchiti v R [2016] NSWCCA 63 (decision restricted) Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 House v R [1936] HCA 40; 55 CLR 499 Justins v The Queen [2010] NSWCCA 242; 79 NSWLR 544 Makarian v The Queen [2005] HCA 25; 228 CLR 357 Moore v R [2016] NSWCCA 185 Olbrich v R [1999] HCA 54; 199 CLR 270 Sio v The Queen [2016] HCA 32; 90 ALJR 963 Smith v R [2015] NSWCCA 193 Stanton v R [2003] HCA 29; 77 ALJR 1151 Vo v The Queen [2013] VSCA 225; 39 VR 543 Weiss v The Queen (2005) 224 CLR 300 Wong v The Queen [2001] HCA 64; 207 CLR 584 Yousif v R [2014] NSWCCA 180 Category: Principal judgment Parties: Katherine Abdallah – Applicant Regina – Respondent Crown Representation: Counsel: T Game SC/Ms A Francis – Applicant Ms S Dowling SC – Respondent Crown Solicitors: Bannisters Lawyers – Applicant Solicitor for Public Prosecutions – Respondent Crown File Number(s): 2013/40978 Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: R v Abdallah [2015] NSWSC 531 Date of Decision: 08 May 2015 Before: Adamson J File Number(s): 2013/40978 JUDGMENT 1. HOEBEN CJ at CL: Nature of proceedings The applicant stood trial before Adamson J in the Supreme Court in respect of the following charge: That she on 9 February 2013 at Brighton-le-Sands in the State of New South Wales did murder Suzie Sarkis (s 18(1)(a) Crimes Act 1900 (NSW). 1. On 23 February 2015 the applicant was found not guilty of murder but guilty of manslaughter (s 24 Crimes Act 1900 (NSW). The maximum penalty for that offence is imprisonment for 25 years. 2. On 8 May 2015 the applicant was sentenced to imprisonment for 11 years commencing 8 December 2014 and expiring 7 December 2025, with a non-parole period of 8 years and 3 months expiring on 8 March 2023. 3. The applicant was sentenced on the basis that she possessed the requisite intent for murder, believed that her conduct was necessary but that the act causing death was an unreasonable response to the perceived circumstances (i.e. excessive self-defence). 4. The applicant has appealed against her conviction and has sought leave to appeal against the sentence. Factual background 1. The deceased was the applicant's cousin. At the time of the deceased's death the two women had been living together in a townhouse owned by the applicant at Brighton-le-Sands. The deceased had moved out of her parents' house to live permanently with the applicant at the end of 2012, i.e. five or six weeks before her death. 2. The applicant had on 29 January 2013 caused a CCTV device to be installed in the lounge and dining room areas of the townhouse. Footage from that device was tendered at trial and depicted the applicant's infliction of a single knife wound to the torso of the deceased after a physical altercation between them. 3. The knife penetrated about 7-10cms into the deceased's chest puncturing her right lung causing cardiac arrest following oxygen build up in the chest cavity outside the lung. Blunt force head injury and cocaine ingestion were contributory causes. The cocaine ingestion rendered the deceased more prone to cardiac arrest. There was no issue at trial as to cause of death. 4. Exhibit D comprised the CCTV material and depicted the events leading up to the death of the deceased commencing at 5.51pm on Saturday 9 February 2013. Exhibit D also contained audio material commencing from a point following the collapse of the deceased when the applicant rang triple 0. There were two cameras and on occasion the same event is shown from two different angles. 5. The CCTV material depicts an argument between the two women, after the deceased smashed a vase onto the floor. In the course of that argument, the deceased attacked the applicant in the lounge area, punching her and pushing her to the ground. The applicant was punched in the head and body and was kicked while on the ground. The deceased then moved away from the applicant and a short delay ensued while the applicant regained her feet. The applicant then attacked the deceased and although partly obscured, appeared to push her down onto a chair. Much of that struggle occurred off camera. Towards the end of that episode, the applicant picked up a four pack of V-drink and struck the deceased on the forehead. 6. The applicant then moved quickly into the kitchen and took two large knives from a knife block. The applicant turned towards the deceased who slowly walked towards her with her hands by her side. The applicant is shown to wave the knives at the deceased twice and then stab her in the chest with the knife in her left hand. The applicant ran from the kitchen. The deceased collapsed onto a table, took four or five steps in the direction of the front door, before collapsing on the floor of the lounge room. The applicant rang triple 0 at 6.02pm and provided her address and phone number. She was shouting loudly and hysterically but hung up when the operator asked her for a second time what had happened. The operator called the applicant back at 6.04pm at which time the applicant was still acting in a highly emotional way. The audio from this telephone call was superimposed onto Exhibit D. 7. It was common ground that during the course of those phone calls the applicant told various lies about what happened and the identity of the offender. At one point while talking to the operator the applicant cleaned and put away the knives but told the triple 0 operator that she was administering CPR to the deceased. The applicant repeated the lies to ambulance officers and later that night to police. When she was informed that police had watched the CCTV footage, she said that she had acted in self-defence. The applicant did not participate in an ERISP, nor did she give evidence at trial. The applicant gave evidence in the sentence proceedings. 8. By way of further background, there was evidence of recent hostility between the women. The cause seemed to be that the deceased, who was unlicensed, had taken the applicant's Mercedes on Friday evening (8 February) and had been detected at 10.30pm by Highway Patrol officers travelling at 112kms in a 60km zone. When this was reported to the applicant by police (the deceased having driven away from police after being lawfully stopped by them) she told the police "She's going to be in serious trouble when I get her. You guys will probably be called back." 9. Context evidence was adduced of earlier recent physical altercations between the women to establish the applicant's state of mind at the time of the act causing death. This evidence included events at the premises earlier on the day of the deceased's death and at Crawford Road in the afternoon of that day after the deceased had again taken the applicant's car without her permission. The women became involved in a physical fight in Crawford Road which was witnessed by a number of people. This arose from the applicant's anger at her vehicle being again taken without her permission. The trial 1. Although manslaughter by unlawful and dangerous act went to the jury, the principal issue at trial was self-defence. Both the Crown and counsel for the applicant opened on this basis. Closing addresses also focused on self-defence and her Honour identified this as the principal issue. 2. Written directions on the standard of proof and onus were provided, as were written directions on the elements of murder, self-defence, excessive self-defence, provocation and manslaughter by unlawful and dangerous act. Drafts of these directions were provided to counsel during the trial and approved by them (MFIs 23 and 26). 3. MFI 23 as finally provided to the jury was in the following terms. The direction in relation to provocation has been left out since it played no part in the appeal. It should be noted that in the summing up, her Honour's oral directions were in almost identical terms to MFI 23. "MFI 23 WRITTEN DIRECTIONS OF LAW TO THE JURY Murder 1 The crime of murder has been committed by Katherine Abdallah if the Crown has established beyond reasonable doubt each of the following four elements: (i) that it was the deliberate act of Katherine Abdallah that caused the death of Suzie Sarkis; and (ii) that the act causing death was done with an intention to kill Suzie Sarkis or to inflict grievous bodily harm upon her; and (iii) that the act causing the death of Suzie Sarkis was not carried out in self-defence; and (iv) Katherine Abdallah was not acting under provocation when she killed Suzie Sarkis. Direction regarding element (ii): mental element 2 Grievous bodily harm means really serious harm. If, notwithstanding the size of the knife the accused used to stab the deceased and the location and depth of the wound, you are not satisfied of this element beyond reasonable doubt you will need to consider the alternative charge of manslaughter (see below). Direction regarding element (iii): act not carried out in self-defence 3 The law recognises the right of a person to act in self-defence from an attack or threatened attack, even to the point of killing, and with the intention of killing or inflicting grievous bodily harm. This right arises where Katherine Abdallah believed that her stabbing of Suzie Sarkis was necessary in order to defend herself, and what Katherine Abdallah did was a reasonable response in the circumstances as she perceived them. 4 Although "self-defence" is referred to as a defence, it is for the Crown to eliminate it as an issue by proving beyond reasonable doubt that Katherine Abdallah's stabbing of Suzie Sarkis was not done by Katherine Abdallah in self-defence. The Crown may do this by proving beyond reasonable doubt either: (a) that Katherine Abdallah did not believe at the time of the stabbing that it was necessary to do what she did in order to defend herself; or (b) the stabbing was not a reasonable response in the circumstances as Katherine Abdallah perceived them. 5 For the Crown to eliminate self-defence as an issue, it must prove beyond reasonable doubt one or the other of these matters. It does not have to prove both of them. If you decide that the Crown has failed to prove at least one of them beyond reasonable doubt, then the appropriate verdict is one of "not guilty of murder" but you need to consider the alternative verdict of manslaughter. Element (iv): provocation 6 [Not replicated.] Alternative verdict of manslaughter 7 There are various ways in which an accused who is found not guilty of murder may be found guilty of manslaughter. This arises where the Crown has failed to prove an element of the offence of murder. 8 Where the Crown has failed to prove element (ii), manslaughter by unlawful and dangerous act is to be considered. Where the Crown has failed to prove (iii), manslaughter by excessive self-defence is to be considered. If you are satisfied beyond reasonable doubt of elements (i) - (iii), but are not satisfied that the Crown has established that the accused was not acting under provocation then the verdict you would return is not guilty of murder, but guilty of manslaughter. 9 I am telling you these matters for completeness although, because of the way the trial was conducted and the evidence that was adduced, the most relevant alternative which you may need to consider is manslaughter by excessive self-defence. However I will also tell you about the elements of manslaughter by unlawful and dangerous act, since this was also referred to by the Crown. Alternative verdict of manslaughter: excessive self-defence 10 If you are not satisfied that the Crown has excluded self-defence (element (iii)) of the murder charge) you will need to consider the alternative verdict of manslaughter. 11 if: (i) you are satisfied beyond reasonable doubt that Katherine Abdallah used force intentional thereby inflicting death; but (ii) you are of the view that it is reasonably possible that Katherine Abdallah did believe that her conduct was necessary in self-defence; and (iii) the Crown has satisfied you beyond reasonable doubt that the conduct of Katherine Abdallah was not a reasonable response in the circumstances as she perceived them because the particular use of force by her was excessive or otherwise unreasonable. 12 In these circumstances, I direct you that the appropriate verdict is one of "not guilty of murder" but "guilty of manslaughter". If however the Crown has not satisfied you that Katherine Abdallah was not acting in self-defence, the appropriate verdict is "not guilty of manslaughter". Alternative verdict of manslaughter; unlawful and dangerous act 13 If you are not satisfied that the accused intended to kill the deceased or cause her grievous bodily harm (element (ii) of the charge of murder) there is an alternative verdict of manslaughter that you need to consider. Before you will be justified in bringing in such an alternative verdict, the Crown must establish beyond reasonable doubt each of the following elements: (a) That it was the act of the accused in stabbing the deceased which caused her death; and (b) That such act was a deliberate act of the accused; and (c) That the act was an unlawful and dangerous one. 14 An act is unlawful if it involves a deliberate application of force to another person without that person's consent and was not done in self-defence. 15 An act is dangerous if it is such that 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." 1. The parts of MFI 26 relevant to this appeal were: "LIES AS A CONSCIOUSNESS OF GUILT 11. Before you can use what the accused said as something which points towards her guilt, you must be satisfied of all three of the following matters: (a) She deliberately made a false statement which she knew at the time to be untrue (the lie); (b) The lie related to some significant circumstance or event connected with the alleged offence. (c) The reason she told the lie was because she feared that the truth would implicate her in relation to the commission of the offence for which she is now on trial and not for some other reason (such as panic or to protect herself against an unjust accusation). Conduct as consciousness of guilt 12. The Crown relied upon the accused's conduct in washing and cleaning the knives after she had stabbed the deceased as a consciousness of guilt of unlawful homicide (murder or manslaughter). Before you can use this conduct, this consciousness of guilt, you must be satisfied that the accused washed and cleaned the knives by reason of a consciousness of guilt of unlawful homicide and not for some unrelated reason (such as panic or to protect herself against an unjust accusation). Alternative verdict 13. It is a matter for you how you approach your task in determining the verdict on the principal charge of murder in the indictment and the alternative charge of manslaughter. Of course, if you are not satisfied that the Crown has proved beyond reasonable doubt all the necessary elements of the principal offence of murder, then you must find the accused not guilty of that charge. You may then consider whether the Crown has proved beyond reasonable doubt the necessary ingredients for the alternative charge of manslaughter. As I have indicated to you, the ingredients of the principal offence and the alternative charge are not the same. If you find that the Crown has not proved beyond reasonable doubt each of the elements of murder, but has proved the ingredients of manslaughter then your verdict will be "not guilty of murder but guilty of manslaughter". 14. However I direct you that you should not regard the availability of an alternative count as an invitation to compromise your verdict. For example, it would be quite wrong for you to find the accused guilty of manslaughter simply because some of you found that the accused was guilty of murder but others were not so satisfied and would enter a verdict of not guilty of that charge. It would be unfair and contrary to your oaths or affirmations in those circumstances to decide to break the deadlock by convicting the accused of the alternative count of manslaughter." 1. In her Honour's summing up she said the following about lies as evidence of consciousness of guilt: "110 Before I summarise the evidence of police and ambulance officers I need to give you a direction about what use you can make of statements which you find to be lies in your determination of whether the accused is guilty of murder or manslaughter. A lie is to say something untrue, knowing at the time of making the statement that it is untrue. The statements relied on by the Crown as lies are the statements made by the accused to the Triple-0 operator, the ambulance officers and police officers about how Ms Sarkis came to be injured and other matters relevant to that incident. The various matters relied on by the Crown as lies are as follows: (1) To the Triple-0 operator: (a) The only weapon was a vase (page 3 of Ex U); and (b) She had put pressure on the wound, when at the time she was replacing the relevant knives (Exhibits M and N) in the knife block after having washed them thoroughly with water and spray and dried them with a towel. (2) To Mr Armitage, the ambulance officer (inside townhouse 4): (c) The deceased had been hit with a vase; (d) The deceased had not been stabbed; (e) She did not know who did it; (f) The deceased's assailant had gone. (3) To Officer Kane: (g) Suzie had been fighting with one of her friends and her friend threw a vase at her and that the accused did not know the name of the friend or where she had gone. (4) To Senior Constable Johnson: (h) A friend of Suzie's was involved in the fight. (5) To Detective Parsons: (i) There was a fight between Suzie and a friend in which the accused intervened to protect Suzie; (j) Suzie's assailant was fat, tall, Lebanese and with a tattoo on one of her hands and wearing black track pants and a white top. (6) To Detective Sergeant Wright and Detective Senior Constable James at about 11.55pm at St George Police Station: (k) There was another girl involved in the fight, whose name she did not know; (l) The deceased had told the accused that the girl's name was Amy; (m) The accused was woken up by Amy bashing the deceased; (n) The accused punched Amy; (o) Amy must have come in the back door because it was always open; (p) There were no cameras inside townhouse 4. (7) To Detective Senior Constable James in the semi-open smoking area at St George Police Station: (q) She thought Amy, the deceased's assailant, was from Marrickville; (r) She had been in a car with Amy and the deceased on a previous occasion; (s) Amy was fat, tall, of Lebanese appearance and had long brown hair with blonde streaks and tattoos on her hand; (t) Suzie had thrown the vase at Amy but it missed and smashed on the floor and went everywhere; (u) Amy had been throwing things around. 111 The conduct that the Crown relies on as demonstrating a consciousness of guilt is the accused conduct in washing the knives (exhibits M and N) carefully, not only with water but using spray to clean them and a towel to wipe them before replacing them in the knife block. The CCTV showed her performing those acts at the time she was on the second phone call to the Triple-0 operator and was confirming that she was putting pressure on the deceased's chest wound. The Crown submitted that she knew what she had done and why she had done it and was covering it up. 112 Mr Stanton, on behalf of the accused, did not cross-examine the persons referred to above to suggest that the accused did not make these statements. Nor did he suggest that the accused's actions in cleaning the knives were not depicted in the CCTV footage as described by the Crown. Mr Stanton told you in his address that, with one exception, the accused accepts that each of the matters relied on by the Crown as lies were in in fact lies. Indeed, the CCTV footage showed that there was no one else in the unit at the relevant time apart from the accused and the deceased and that the accused stabbed the deceased with a knife. The exception is that the accused does not accept that her statement that there were no CCTV cameras in townhouse 4 was a lie. Mr Stanton said that the accused may have been oblivious to them, or had forgotten that she had had them installed on 29 January 2013 or may not have appreciated that they were working. It will be a matter for you to determine whether this, too, was a lie. The Crown submitted that the accused told this lie because she knew that if the CCTV cameras were discovered it would be revealed that she was the one who had fatally stabbed the deceased. 113 If you find that the accused made the statements I have just referred to, and you find one or more of them were lies, then I must give you a direction about the care with which you must approach the task of deciding what significance, if any, it has. You may take this lie into account as evidence of the accused's guilt but you can only do that if you find two further things which I will refer to shortly. When I say you can take it into account as evidence of the accused's guilt, I am not suggesting that it could prove her guilt on its own. What I mean is that it can be considered along with all of the other facts that the Crown relies upon and which you find established on the evidence in considering whether the Crown has proved its case beyond reasonable doubt. Apart from the fact that the accused made the statement and that it amounted to a deliberate lie, before you can use the lie as some evidence of her guilt you must find two further matters proved. 114 First, you must find that what the accused said that amounts to a lie relates to an issue that is relevant to the offence the Crown alleges that the accused committed. The relevant category of offences is unlawful homicide and the two offences are murder and manslaughter. The alleged lie must relate to some significant circumstance or event connected with that alleged offence. The Crown says the lies are relevant because, in most of the lies set out above, the accused sought, falsely, to attribute responsibility for the attack and stabbing of the deceased to a person who was either non-existent or not present. The Crown says that her conduct in cleaning the knives is also relevant because it served to remove her fingerprints and the deceased's blood from the knives and indicate to anyone who came to the premises that the knives had not in fact been used to kill the deceased. The Crown says that her conduct shows great presence of mind and also that it shows a consciousness of guilt of culpable homicide because she appreciated that she had not acted in self-defence, but rather out of aggression. 115 Second, you must find that the reason the accused told the lie is because she feared that telling the truth might reveal her guilt in respect of the charge she now faces. In other words, she feared that telling the truth would implicate her in the commission of the offence for which she is now on trial, relevantly unlawful homicide, being either murder or manslaughter. The Crown says you would be satisfied of that because her careful and deliberate actions of cleaning the knives while she was on the phone to the Triple-0 operator when she was assuring the operator that she had pressure on the chest wound. The Crown also relies on the fact that Ms Kidd, one of the ambulance officers, thought that the accused was capable of performing CPR on the deceased while she was assembling the life pack. Ms Kidd confirmed that she would not have asked the accused to do that had she not believed that she was capable of it. The Crown says further that the detail with which the accused embellished the lie as the evening wore on puts paid to the explanation that the accused was panicking because she was relatively calm for the time she was at the Police Station, apart from the time when she learned that the deceased was dead, when she cried and banged her head. 116 The defence case in relation to this issue is that the accused was in a state of panic, and was, at times, hysterical. She believed that she would be unfairly blamed for the injury to the deceased, which she learned in the course of the evening had proved to be fatal. The defence case is, further, that the lies do not affect what is in issue in this case since it is clear from the CCTV footage who was present and what happened. 117 I remind you that people do not always act rationally, and that conduct of this sort, that is, telling a lie, may sometimes be explained in other ways. A person may have a reason for lying quite apart from trying to conceal his or her guilt. For example, a lie may be told out of panic or to escape an unjust accusation. 118 The lies relied upon by the Crown principally relate to the identity of the person responsible for killing the deceased and the means by which the deceased was injured. The accused, having fatally stabbed the deceased, may have believed that she was guilty of unlawful homicide (murder or manslaughter) even though, if she was acting in self-defence, she would not have been guilty of unlawful homicide. She may have lied because she did not know this aspect of the law relating to homicide and was worried that she would be accused of doing something wrong when all she had done was defend herself. 119 If you think that the lie may have been told for some reason other than to avoid being implicated in the commission of the offence for which the accused is now on trial, murder, or the alternative of manslaughter, then it cannot be used as evidence of her guilt. If that is the case, you should put it to one side and focus your deliberations upon the other evidence in the case. 120 Furthermore, even if you are satisfied that the accused's lies and conduct which are relied upon by the Crown amounted to a consciousness of guilt, there is no basis on which you could use that evidence to distinguish between a consciousness of guilt of murder rather than a consciousness of guilt of manslaughter. 121 In summary, before you can use what the accused said as something which points towards her guilt, you must be satisfied that she lied deliberately. You must find that the lie related to some significant circumstance or event connected with the alleged offence. You must find that the reason she told this lie was because she feared that the truth would implicate her in relation to the commission of the offence (murder or manslaughter) for which she is now on trial. Before you can use what she did by way of cleaning the knives and replacing them in the knife-block as something that points towards her guilt, you must be satisfied that she washed the knives because she feared that the deceased blood and the accused's fingerprints which it can be inferred were removed by the washing would implicate her in a crime of unlawful homicide, being murder or manslaughter." 1. Her Honour's directions as to the elements of murder, self defence, excessive self-defence, provocation and manslaughter by unlawful and dangerous act are set out at [181] – [195] of her summing up. As indicated above, the directions so given were in identical terms to MFI 23. In her summing up, her Honour gave additional directions as follows. These were similar to the directions at [13] and [14] of MFI 26. "220 I will move on to the topic of alternative verdict which has been dealt with insofar as you need to be aware of it in MFI 23. It is a matter for you how you approach your task in determining the verdict on the principal charge of murder in the indictment and the alternative charge of manslaughter. Of course, if you are not satisfied that the Crown has proved beyond reasonable doubt all the necessary elements of the principal offence of murder, then you must find the accused not guilty on that charge. You may then consider whether the Crown has proved beyond reasonable doubt the necessary ingredients of the alternative charge of manslaughter. As is indicated on MFI 23, the elements of murder and manslaughter are different. 221 If you find that the Crown has not proved murder beyond reasonable doubt but has proved manslaughter beyond reasonable doubt, then your verdict will be not guilty of murder but guilty of manslaughter. However, I direct you that you should not regard the availability of an alternative count as an invitation to compromise your verdict. For example, it would be quite wrong of you to find the accused guilty of manslaughter simply because some of you found that the accused was guilty of murder but others were not so satisfied and would enter a verdict of not guilty on that charge but a verdict of guilty on manslaughter. It would be unfair and contrary to your oaths or affirmations in those circumstances to decide to break the deadlock by convicting the accused on the alternative count of manslaughter." 1. The relevant sections of the Crimes Act 1900 (NSW) (the Act) under consideration in the appeal were: "418 Self-defence—when available (1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them. 419 Self-defence - onus of proof In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence. … 421 Self-defence - excessive force that inflicts death (1) This section applies if: (a) the person uses force that involves the infliction of death, and (b) the conduct is not a reasonable response in the circumstances as he or she perceives them, but the person believes the conduct is necessary: (c) to defend himself or herself or another person, or (d) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person. (2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter." CONVICTION APPEAL Ground 1 – The trial judge erred (and failed to direct adequately) in her directions on self-defence (to murder), excessive self-defence and voluntary manslaughter, manslaughter by unlawful and dangerous act, self-defence to manslaughter and causation. 1. The applicant submitted that under s 418 a person is not guilty of the offence of murder if the act causing death was done in self-defence. The applicant submitted that unless some other separate and lesser basis is put for involuntary manslaughter (i.e. unlawful and dangerous act manslaughter) then if self-defence is not excluded on murder, the person is entitled to an outright acquittal. She submitted that acquittal for murder was open either because the jury had a doubt attaching to the mens rea for murder or a doubt as to whether the Crown had negatived self-defence. 2. The applicant submitted that there were significant errors in the written directions provided at trial and that these misdirections were largely replicated in the oral directions. The applicant identified the same error in [5], [8] and [10] of MFI 23. 3. In [5] the applicant submitted that the third sentence "If you decide that the Crown has failed to prove at least one of them beyond reasonable doubt, then the appropriate verdict is one of "not guilty of murder" but you need to consider the alternative verdict of manslaughter" was wrong. She submitted that if the Crown failed to eliminate self-defence she was entitled to an acquittal and there was no need to consider "excessive self-defence" manslaughter. She submitted that the same error was replicated in [8] which stated "Where the Crown has failed to prove (iii), manslaughter by excessive self-defence is to be considered". She submitted that the same error occurred in [10]. 4. The applicant submitted that these directions were incongruous and clearly wrong and were repeated in the oral directions at [188] and [190] of the summing up. 5. In support of that proposition, the applicant relied upon Sio v The Queen [2016] HCA 32; 90 ALJR 963. That case concerned an accused who was acquitted of murder but convicted of armed robbery with wounding. The High Court held that his conviction for armed robbery with wounding was unreasonable because it was inconsistent with his acquittal on the charge of murder. This was because both offences had as an element that the accused foresaw the possibility that the victim might be wounded by the use of a knife. His acquittal of murder meant this element must have been decided by the jury in his favour which meant that he could not be convicted of armed robbery with wounding. This rendered the verdict unreasonable. 6. The applicant submitted that her Honour's impugned directions contained error because if the Crown had failed to eliminate self-defence in a charge of murder, the jury must have found in her favour that she did believe at the time of the stabbing that it was necessary to do what she did in order to defend herself, and that the stabbing was a reasonable response in the circumstances as she perceived them, or had a reasonable doubt about whether the Crown had excluded those matters. It was therefore not open to then require the jury to again consider the issues raised by "excessive self-defence" because those matters had already been decided in her favour. She submitted that the fact that the jury had acquitted her of murder implicitly meant that the issue of excessive self-defence had been decided in her favour and by analogy with the decision in Sio v The Queen, it was not open to require the jury to consider that issue again. 7. The applicant submitted that [11] of MFI 23 contained error in that it was not only incongruous that the jury was asked to revisit an issue already decided in her favour but the direction in [11(iii)] introduced the idea of something less than "excessive force", i.e. force which was "otherwise unreasonable". She submitted that this expanded the scope of excessive force to something else which was "otherwise unreasonable". The applicant submitted that there was a misstatement of onus and standard in [11(ii)] by the use of the phrase "reasonably possible" rather than the standard of "beyond reasonable doubt". 8. The applicant submitted that her Honour's directions on "unlawful and dangerous act" manslaughter identified "the stabbing" as the unlawful act. This was the same act as that identified on the murder charge. She submitted that the "stabbing" would have had to have been done absent intent to cause death or serious harm. She submitted that such an approach was inconsistent with the manner in which her Honour articulated the Crown case on this subject in her summing up ([208]). There the act identified was said to be "brandishing/using the knives". The applicant submitted that brandishing a knife was a significantly less serious action than stabbing by a deliberate act and was far less easy for the Crown to establish as being done, absent self-defence. The applicant noted that the written directions made no mention of such an issue. 9. The applicant submitted that although the direction at [14] in MFI 23 stated that a "relevant act" was unlawful if "not done in self-defence", the conduct amounting to self-defence in the context of manslaughter was not otherwise explained in the written directions. She submitted that this was quite inadequate to bring home to the jury the element of excluded self-defence on manslaughter. She submitted that whatever the "relevant" act was, it could not be done with intent to kill or cause grievous bodily harm and as a result, it was much more difficult for the Crown to prove that this act was not done in self-defence. This was particularly so if the "unlawful act" was the brandishing of the knife or knives, rather than the act of stabbing. 10. In summary, the applicant submitted that there were a number of significant errors in the way critical subjects were left for determination by the jury. Most particularly, manslaughter by excessive "or unreasonable" force was left for the jury to consider (again) after they had already acquitted of murder based on self-defence. In raising these issues the applicant appears to have been relying upon the first limb of s 6(1) of the Criminal Appeal Act 1912 (NSW) and asserting that these errors constituted a miscarriage of justice. 11. The Crown accepted that s 418 absolved an accused of criminal responsibility if the Crown failed to establish to the criminal standard that (a) the person did not believe the conduct was necessary and (b) the conduct was not a reasonable response in the circumstances as he or she perceived them. It submitted that s 421 operated where the jury was satisfied that a subjective element was present (belief in the necessity of the conduct) but was also satisfied beyond reasonable doubt that the conduct was not a reasonable response in the circumstances as the accused perceived them. Criminal liability for manslaughter by excessive self-defence became attached by force of, and in the circumstances described in s 421, specifically by s 421(2) – a person is not criminally responsible for murder but is to be found guilty of manslaughter if the circumstances in s 421(1) exist. The Crown submitted that liability under s 421 is not expressed to be dependent on s 418. It depended on the matters set out in s 421 being satisfied and a consideration of s 418 was not a pre-condition to a consideration of s 421. 12. The Crown submitted that there was no constraint on the jury considering guilt on an alternative count before they arrived at a verdict on the principal count. The Crown submitted that the only constraint on the jury considering alternative counts related to the order in which their verdicts are delivered. The jury could not deliver a verdict on an alternative count unless they had first acquitted the accused of the principal count (Stanton v R [2003] HCA 29; 77 ALJR 1151; Vo v The Queen [2013] VSCA 225; 39 VR 543). 13. The Crown submitted that there were two routes to manslaughter – voluntary manslaughter by operation of s 421 or involuntary manslaughter in the event that the jury were not satisfied of the mental element for murder. It submitted that it was not possible to determine the basis of the verdict in this case notwithstanding that her Honour sentenced on the basis of excessive self-defence manslaughter. The Crown submitted that the verdict of acquittal of murder did not indicate that the jury accepted both the subjective and objective limbs of the test of self-defence. The jury could have acquitted of murder because they were not satisfied of the mental element or on the basis of excessive self-defence, pursuant to s 421(2). 14. The Crown challenged on a number of bases the applicant's primary submission that if the Crown failed to establish beyond reasonable doubt element [1(iii)] in MFI 23, she was entitled to an acquittal, subject "only" to another lesser case based on unlawful and dangerous act manslaughter. The Crown submitted that the submission failed to acknowledge that the consideration of element [1(iii)] required consideration of both s 418 and s 421 and that was the effect of the directions given in MFI 23 [5], [8] and [10]. The Crown submitted that the applicant's argument also failed to accommodate the terms of s 421 which provided that a failure to prove the objective limb of the "defence" of self-defence results in an acquittal for murder and guilty of manslaughter. The Crown submitted that in this case the verdict of not guilty of murder did not indicate that the jury accepted both the subjective and objective limbs of the test for self-defence. To the extent that it was based on self-defence (rather than a failure to find murderous intent), the verdict was an acquittal by virtue of the operation of s 421(2). 15. The Crown submitted that it was implicit in the applicant's submission that the jury were required to reason through the possible verdicts sequentially, i.e. s 418 before considering s 421 (contrary to Stanton v R). The Crown submitted that the applicant's submission failed to recognise that the Act clearly contemplated that where the Crown establishes that the accused's response was not reasonable in the circumstances as the accused perceived them, the accused was liable for manslaughter and not murder. The Crown submitted that on the applicant's reasoning, s 421 would rarely, if ever, be enlivened. The Crown noted that no authority was cited by the applicant in support of this submission, which failed to engage with the scheme of the legislation or with precedent, and should be rejected. The Crown submitted that her Honour's directions properly instructed the jury as to the operation of both ss 418 and 421 and that no error was demonstrated. 16. The Crown submitted that the applicant's challenge to the direction in [11(iii)] of MFI 23 was not made out. It submitted that both ss 418 and 421 described the objective limb of self-defence as conduct that was "a reasonable response in the circumstances". It submitted that this was picked up in the written directions. It submitted that the word "excessive" is found in the heading to s 421 and is commonly used to describe the partial "defence" (e.g. Grant v R [2014] NSWCCA 67 at [65]). The Crown submitted that the addition of the phrase "otherwise unreasonable" in the direction must be read subject to the preceding phrase "not a reasonable response in the circumstances as she perceived them because …" 17. The Crown submitted that the direction in [11] needed to be considered in light of the evidence and the issues raised at trial (Doggett v The Queen [2001] HCA 46; 208 CLR 343 at 346). The Crown submitted that the question for the jury was clear – was the applicant's act of stabbing the deceased (an act which was caught on CCTV and which the jury watched) – a reasonable response in the circumstances as she perceived them. The Crown submitted that in the circumstances the direction did not introduce some other lesser standard to the statutory test and the submission should be rejected. 18. In relation to the applicant's submission that the onus and standard of proof were misstated in [11(ii)] of MFI 23, the Crown submitted that this was of little significance because the jury could only have reached the direction on excessive self-defence if they were not satisfied beyond reasonable doubt that the applicant did not believe that her conduct was necessary to defend herself as properly directed at MFI 23 [4(a)]. The Crown submitted that the formulation in [11(ii)] arguably conveyed a lower standard of proof than required. This was significant because it was a direction, the satisfaction of which was sufficient for a lesser verdict (manslaughter not murder), rather than necessary for conviction (discussed in Hadchiti v R [2016] NSWCCA 63 (decision restricted) at [107]. Lastly, the Crown submitted that this was the only part of the summing up which it could be argued departed from the traditional expression of onus and standard of proof. It submitted that the jury were repeatedly instructed, both orally and in writing, that the burden of proof lay with the Crown to the criminal standard. This was to be contrasted with the directions in Hadchiti which used an unorthodox formulation in six out of eight written questions provided to the jury. The Crown noted that in Hadchiti the court had not accepted the proposition that the impugned formulation reversed the onus of proof. 19. The Crown challenged the applicant's submission that the oral direction at [208] of the summing up was wrong because it identified the relevant unlawful and dangerous act as the brandishing of knives whereas the written direction in MFI 23 identified the unlawful and dangerous act as the stabbing of the deceased. The Crown submitted that this submission was not made out because both the oral direction on unlawful and dangerous act (at [193]) and the written direction identified the relevant unlawful and dangerous act as the stabbing of the deceased. The Crown submitted that the reference by her Honour to the brandishing of knives at [208] was made in the course of recounting the Crown address on excessive self-defence not unlawful and dangerous act manslaughter. 20. In relation to the applicant's challenge to [14] of MFI 23 concerning the concept of unlawfulness (in unlawful and dangerous act manslaughter), the Crown submitted that the direction was not inadequate because it failed to "bring home the element of excluded self-defence on manslaughter". The Crown submitted that this submission was not made out because the direction stated: "An act is unlawful if it involves a deliberate application of force to another person without the person's consent and was not done in self-defence." The Crown noted that self-defence was explained in the written directions at [3] – [5] of MFI 23 and orally at [184] of the summing up. Consideration 1. In Filippou v The Queen [2015] HCA 29; 256 CLR 47 the plurality (French CJ, Bell, Keane and Nettle JJ) restated the function of this Court under s 6(1) of the Criminal Appeal Act 1912 (NSW): "12 Authority makes plain that a jury's finding of guilt is not to be disturbed unless it appears that there is no or insufficient evidence to support the finding, or the evidence is all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice. … 13 Turning to the second limb of s 6(1) of the Criminal Appeal Act, it will be seen that to some extent it overlaps the first. A "wrong decision of any question of law" includes misdirections on matters of substantive law as well as misdirections on matters of adjectival law. And, as with the first limb, the question under the second limb will be whether the error constitutes a miscarriage of justice in the sense of a departure from trial according to law". 14 The third limb covers cases where, by reason of irregularity or otherwise, an accused has not received a trial according to law or has not received a fair trial." 1. In Smith v R [2015] NSWCCA 193 Simpson JA described the way in which a jury might reason to a verdict of manslaughter by excessive self-defence. The verdict in that matter was the same as in this matter, i.e. not guilty of murder but guilty of manslaughter. How the jury reasoned to that result was, of course, not known. Although Simpson JA made her observations in the context of a sentence appeal, her analysis is of assistance. The directions of Adamson J did not set out the reasoning in this way but the jury may well have reasoned to their verdict in this way. Simpson JA relevantly said: "3 On 4 June 2014, the jury returned a verdict of not guilty of murder, but guilty of manslaughter. In doing so, they rejected the defence of self-defence afforded by s 418 of the Crimes Act 1900 (NSW), but accepted the partial defence of "excessive self-defence" for which provision is made by s 421, and which reduces an offence that otherwise would be murder to manslaughter. … 16 In short, the applicant's case (in terms of s 418) was: (i) that he perceived that Mr George was armed with a gun, and that he was about to use it against the applicant; (ii) that he believed, in those circumstances, that shooting Mr George was necessary in order to defend himself; and (iii) that his conduct was a reasonable response in the circumstances as he perceived them. … 18 Section 418 provides a complete defence and is applicable to various offences other than (but including) murder. Where the issue is raised, by s 419 the onus lies on the Crown to negative the defence. The jury's verdict demonstrates that the Crown successfully did so. (If that were not so, the verdict would have been an acquittal.) Rejection by the jury of self-defence has the necessary implication that the Crown proved, beyond reasonable doubt, either: that the applicant did not believe that his conduct was necessary to defend himself; or that the applicant's conduct was not a reasonable response to the circumstances as he perceived them. 19 The "conduct" is the specific conduct undertaken - in this case, shooting Mr George. 20 Plainly, having rejected the s 418 defence, the jury then turned to s 421. Relevantly, the essentials of s 421 are: the accused uses force that involves the infliction of death; the accused believes that that conduct (that is, the use of the force in fact used) is necessary to defend himself or herself or another person; and that conduct is not a reasonable response in the circumstances as the accused perceives them. 21 Logically, if the jury accepted that the Crown had proved that the applicant did not believe that his conduct was necessary to defend himself, it would not have proceeded to consider the second s 418 question (the reasonableness of his conduct) and it would not have proceeded to consider any of the s 421 questions. It may therefore be taken that the jury did accept that the applicant believed that his conduct in shooting Mr George was necessary in order to defend himself (or, more accurately, that the Crown had failed to prove that he did not have that belief). 22 Indeed, this may also be seen directly, because one of the elements of s 421 is that the applicant's conduct was not reasonable in the circumstances as he perceives them. For the purposes of s 421, there could be no doubt (given the applicant's own evidence) that (in the language of s 421(1)(a)) he used force that inflicted death on Mr George. The basis for the verdict must therefore have been that the jury accepted that the Crown had proved that the applicant's conduct was not reasonable in the circumstances as he perceived them. For the purposes of this application, the words "the circumstances as he perceived them" are critical." 1. In the present case we do not know on what basis the jury acquitted the applicant of murder. The process of reasoning set out by Simpson JA in Smith was well open to the jury on the directions which were given. There is nothing to suggest that they behaved illogically or unreasonably by rejecting self-defence under s 418 but then finding in favour of the Crown under s 421. The opacity of the jury's reasoning process in this case distinguishes it from what occurred in Sio v The Queen. There, by a process of elimination, it was clear that the acquittal by the jury of murder carried with it an acquittal on the lesser charge of armed robbery with wounding. 2. It would appear to be uncontroversial that excessive self-defence under s 421 is not a new species of manslaughter but is a category of voluntary manslaughter. That is clear from the terms of s 421(2) – an accused is not criminally responsible for murder but on a trial for murder, the person is to be found guilty of manslaughter – so liability is clearly connected to and derivative from the asserted initial antecedent liability for murder. Nevertheless the presence of s 421 in the Act does place the offence of murder in a special category compared to other offences when considering self-defence. 3. Implicit in the applicant's submissions is the assumption that the jury must consider s 418 before considering s 421 and that is why her Honour's directions in [5], [8] and [10] of MFI 23 were in error. That is certainly one way of approaching such consideration but it is not the only way and it is not mandatory. The flexibility of a jury in how they approach such matters was made clear in Stanton v R and Vo v The Queen. 4. In its terms, s 421 does not require the jury to have proceeded through the gateway of s 418 before considering s 421. Although her Honour's impugned directions deal with s 418 before considering s 421, nowhere in those directions does her Honour require the jury to have followed that sequence. On the contrary, at [13] of MFI 26 and at [220] of the summing up when dealing with alternative verdicts, her Honour made it clear that it was a matter for the jury as to how they approached their task in determining their verdict. It is fully consistent with her Honour's directions that the acquittal for murder was found as a result of excessive self-defence pursuant to the operation of s 421(2), rather than by reason of the jury having found both of the requirements for the full defence of self-defence. 5. A difficulty with the applicant's submissions on this issue is how the jury would have got to s 421 if they first had to proceed through the s 418 gateway. The applicant's sequential approach, i.e. dealing with s 418 before s 421, would conceivably leave s 421 with little work to do. The better approach in a case such as this where self-defence was the primary consideration is for the jury to consider the reasonableness of the response at the same time for the purposes of both s 418 and for s 421. If the jury find belief and that it was a reasonable response, a full acquittal is the result. If they find belief but that it was not a reasonable response, then excessive self-defence is in play and the partial defence is established. That approach is consistent with her Honour's directions at [5], [8] and [10] of MFI 23. 6. Alternatively, if the correct approach is to deal with ss 418 and 421 sequentially, there is clearly error in her Honour's directions at [5], [8] and [10] of MFI 23. It is an error, however, which if the directions were followed, would not produce a miscarriage of justice nor would the error have deprived the applicant of a chance of acquittal that was fairly open to her. 7. This is because if the jury found that the Crown had failed to eliminate either limb of self-defence, which is the precondition in the third sentence of [5] of MFI 23, and went on to consider excessive self-defence under s 421, they should logically have reasoned "Why are we considering this issue again when we have already made a decision about it?" You would expect a jury to reason "We've already found that neither limb of self-defence has been eliminated by the Crown so we don't need to consider again whether we are satisfied that the stabbing was an unreasonable response" or in the alternative, "We've already found the Crown has established beyond reasonable doubt that the stabbing was an unreasonable response so we don't need to consider that again". In other words, the result would be the same. There is no basis for the applicant's assumption that the jury was likely to or must have reached a different conclusion when considering the s 421 issue to that which they had already reached in relation to s 418. 8. The fact that the jury found the applicant guilty of manslaughter on the particular facts of this case is strongly suggestive that if they considered ss 418 and 421 sequentially, they found the subjective test as to belief in favour of the applicant but found in favour of the Crown on the reasonable response question. If that was their process of reasoning, there is no basis to suggest that when they came to consider s 421 they would have reached any different conclusion on the identical question. Accordingly, although the directions were erroneous they would not have been productive of a miscarriage of justice. 9. It is necessary to look at the directions as a whole. Their effect, taken as a whole, is to include in the concept of self-defence not just self-defence under s 418, but excessive self-defence under s 421 so that both ss 418 and 421 were under consideration. The directions clearly set out the two requirements of belief and reasonableness and direct the jury that if both were satisfied then that is a full defence and must result in an acquittal. If only the belief is satisfied and reasonableness is not, then s 421 operates to require a verdict of manslaughter. It seems likely from the verdict that the jury were satisfied beyond reasonable doubt of the unreasonableness of the stabbing. This is particularly so when one has regard to Exhibit D, the estimate of the depth of the wound and its location. Somewhat unusually for cases of this kind, Exhibit D graphically shows the detail of how the death of the deceased came about. Given what is depicted on Exhibit D, it is difficult to see how any reasonable jury could possibly fail to be satisfied beyond reasonable doubt that stabbing the deceased was not a reasonable response by the applicant in the circumstances, as she perceived them, because the particular use of force by her was excessive. It follows that no miscarriage of justice has occurred and there has been no departure from trial according to law. 10. While there may be some logical inconsistencies in a literal application of the directions, regard has to be had to their total effect. It is also necessary to have regard to the issues at trial. It is not without significance that defence counsel barely said a word about intent. His submissions were directed to self-defence. This was also the focus of the Crown submissions. Similarly, the jury could have been under no illusion as to what they were to be satisfied of, or what the Crown had to prove to eliminate the full defence and also for the partial defence. They were not required to reason through them in a piecemeal way. The likely explanation for the verdict is found in the operation of s 421(2). It follows that the directions did not involve a miscarriage of justice nor deprive the applicant of the chance of a complete acquittal which was reasonably open to her. 11. If one accepts that ss 418 and 421 do not have to be approached sequentially but can be looked at together, or that s 421 can be considered separately, the erroneous directions do not produce a miscarriage of justice. Even if the directions were erroneous so that ss 418 and 421 had to be approached sequentially, as a matter of common sense and logic if the jury had once failed to be persuaded that the applicant's response was unreasonable there was no basis for submitting that they must or may have reached a different conclusion on that question when considering s 421 as the directions required. It follows, therefore, that on either approach the applicant was not subject to a miscarriage of justice. 12. The other matters raised by the applicant under this ground of appeal have been largely dealt with by the Crown in submissions. In that regard, the submissions of the Crown at [37] – [41] hereof should be accepted. It is clear that the applicant's challenge to [11(ii)] of MFI 23 is in conflict with the observations in Hadchiti v R and also the decision of the majority in Moore v R [2016] NSWCCA 185. 13. The availability of self-defence as a defence to manslaughter as well as murder was dealt with appropriately by her Honour at [12] and [14] of MFI 23 and in her summing up which replicated those directions. 14. Ground of Appeal 1 has not been made out. Ground 2 – The trial judge erred in her directions on consciousness of guilt. 1. The applicant accepted that, with the exception of the suggested lie to investigating police that there were no CCTV cameras in the townhouse, there was no issue between the parties as to the fact that lies were told, as asserted by the Crown. There was no issue that the conduct of cleaning the knives took place during the applicant's telephone conversation with the triple 0 operator. The complaint by the applicant is however twofold. The first is that when giving directions about the possible innocent explanation for the applicant's conduct, her Honour failed to stress that the applicant's concern was that she would be wrongly implicated in the offending. The applicant submitted that the way in which the directions were given merely referred to the fear of the applicant that the lies and actions would implicate her without the important qualification of such implication being "wrong". 2. The second submission was that it was not clear from the directions how the lies and conduct could be related to the actual offending in circumstances where their occurrence was not in dispute. In that regard, the applicant submitted that the jury should have been told that the lies and conduct were of very minimal probative value. This is particularly so when they could not be used to distinguish murder from manslaughter. The applicant submitted that at most, the lies and conduct could only be implied admissions of some general wrongdoing. Consideration 1. This ground of appeal is not made out. When one looks at [11] and [12] of MFI 26 her Honour covered the issue raised by the applicant by offering an innocent explanation of the lies and conduct "such as panic or to protect herself against an unjust accusation". Similarly, at [116] of the summing up, her Honour set out the applicant's response to these lies and conduct as: "The defence case in relation to this issue is that the accused was in a state of panic and was at times hysterical. She believed that she would be unfairly blamed for the injury to the deceased …". At [117] of the summing up her Honour observed: "For example, a lie may be told out of panic or to escape an unjust accusation." See also [118] of the summing up at [19] hereof. 1. In relation to the applicant's second point, it is appropriately answered by the following directions in her Honour's summing up: "114 … The Crown says that her conduct in cleaning the knives is also relevant because it served to remove her fingerprints and the deceased's blood from the knives and indicate to anyone who came to the premises that the knives had not in fact been used to kill the deceased. The Crown says that her conduct shows great presence of mind and also that it shows a consciousness of guilt of culpable homicide because she appreciated that she had not acted in self-defence, but rather out of aggression. 115 … The Crown says further that the detail with which the accused embellished the lie as the evening wore on puts paid to the explanation that the accused was panicking because she was relatively calm for the time she was at the Police Station, apart from the time when she learned that the deceased was dead, when she cried and banged her head." 1. It is clear that the directions on lies and other conduct appropriately addressed the issues before the jury and identified the limitations on how the evidence could be used. Ground 3 – The verdict is unreasonable or the applicant is otherwise entitled to an acquittal. 1. This ground of appeal raises the same issue as Ground of Appeal 1. It relies upon the proposition that because the jury acquitted the applicant of murder it must have determined favourably to the applicant the reasonableness of her conduct and so she was entitled to the same finding on the issue of manslaughter by excessive self-defence. It was on this basis that the applicant submitted that the verdict was unreasonable. The applicant submitted that had the jury not been erroneously invited to reconsider excessive self-defence, the applicant would have been entitled to an outright acquittal. 2. As an alternative, the applicant submitted that having regard to Exhibit D, had the jury found the applicant guilty of involuntary manslaughter, i.e. manslaughter by an unlawful and dangerous act, such verdict would have been unreasonable because it was not open to the jury to find beyond reasonable doubt that the applicant's act in stabbing the deceased was an unlawful and dangerous one. The applicant submitted that a reasonable person in her position in the circumstances depicted by Exhibit D would not have realised that the deceased was being exposed to an appreciable risk of serious injury. 3. The applicant submitted that Exhibit D established that the jury ought to have entertained a doubt in respect of her response in the context of an unlawful and dangerous act. Consideration 1. With due respect to the alternative submission of the applicant, I find the submission surprising. The depth and location of the wound tend strongly against the applicant's submission. Most importantly what is depicted in Exhibit D is that after two episodes of violence, one initiated by the deceased and the other by the applicant, when the deceased approached the applicant in the kitchen, the applicant not only waved the knives at her but stabbed her. 2. Taking those matters into account and having watched Exhibit D on a number of occasions, I have no difficulty in finding that it was open to the jury to find beyond reasonable doubt that the applicant's conduct involved a deliberate act on her part and that her act of stabbing the deceased was an unlawful and dangerous one. For the jury to have made any other finding would be perverse. 3. In relation to the applicant's primary submission under this ground, which raises the same issue as Ground of Appeal 1, there is no need to make any further response than has already been set out in relation to that ground. In short, Sio v The Queen was a very different case to this one. It does not necessarily follow from the jury's acquittal of the applicant on the charge of murder that a consideration by them of manslaughter by excessive self-defence was foreclosed because they had already made a finding on this issue in her favour. 4. For the reasons set out in relation to Ground of Appeal 1 and above, this ground of appeal has not been made out. 5. In relation to the conviction appeal, the orders which I propose are that leave to appeal be granted but that the appeal be dismissed. 6. Because mine is a minority opinion, it is not necessary to deal with the application for leave to appeal against sentence. 7. CAMPBELL J: I have had the considerable advantage of reading in draft the judgments of Hoeben CJ at CL and Button J. As they differ on Ground 1 in relation to the self-defence misdirection, and accordingly in relation to the disposition of the appeal, I wish to explain my decision about this. At the outset I record that I agree with what Hoeben CJ at CL has written about Grounds 2 and 3. I also agree that in the circumstances it is unnecessary to consider the question of sentence. 8. Self-defence was the central issue at the trial and the question was whether the Crown had proved beyond reasonable doubt that the appellant did not stab the deceased in self-defence. I agree with Hoeben CJ at CL and Button J that, with respect, the learned trial judge misdirected the jury as to the law that was necessary for the jury to apply in deciding this issue. I think it should be pointed out that her Honour's written and oral directions on self-defence accorded perfectly with the suggested direction in the Criminal Trials Bench Book at [6 – 460] as it stood at the date of the trial. Given the unanimous view of this Court that suggestion must be taken to have been legally inadequate. It has now been corrected (see [6 – 465]). 9. In my view, Ground 1 is a ground which involves a question of law alone and leave to appeal is not required: s 5 Criminal Appeal Act 1912 (NSW). As Hoeben CJ at CL's discussion of Filippou demonstrates, this involves the second limb of s 6(1) of the Act. The misdirection is a "wrong decision on [a] question of law" because it is a misdirection on a matter of substantive law concerning the law of self-defence as it applies in murder cases. The settled interpretation of s 6(1) is that the expression "miscarriage of justice" where it first appears in the sub-section qualifies each of the limbs of s 6(1), not only the third limb: Weiss v the Queen (2005) 224 CLR 300 at 308 [18]; Filippou at 54 [13]. 10. Hoeben CJ at CL has decided that the error does not involve a miscarriage of justice. In those circumstances, it was unnecessary for his Honour to consider the operation of the proviso. 11. Filippou makes clear that the expression "miscarriage of justice" where it first appears in s 6(1) means "a departure from trial according to law" (at 54 [13]); Weiss at 308 [17] – [18] is footnoted). The passage cited from Weiss makes clear that the meaning of the expression is derived from the "old Exchequer rule": "any departure from trial according to law regardless of the nature or importance of that departure" would suffice to justify a re-trial (original emphasis). The proviso in the common form criminal appeal statute ameliorates the strictness of the old rule by requiring the dismissal of the appeal where, error notwithstanding, no substantial miscarriage has occurred. 12. If my understanding of these matters is correct, the failure of the learned trial judge to direct the jury that to eliminate self-defence as an issue in a murder trial (MFI 23 [5]) the Crown must negative by proof beyond reasonable doubt both (not either) of the elements of self-defence was such a departure from a trial according to law. This being so, the appellant's Ground 1 was made out without more, subject only to the consideration of the proviso. 13. In Filippou at (55 [15]), French CJ, Bell, Keane and Nettle JJ said: "By "substantial miscarriage of justice" what is meant is that the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him or her….[W]here the second limb applies, the circumstances in some cases may be such that, despite the judge making "the wrong decision of [a] question of law", the Court of Criminal Appeal is persuaded that the error could not have deprived the appellant of a chance of acquittal that was fairly open to him or her. In that case the proviso will operate." [Footnotes omitted] If no substantial miscarriage of justice has actually occurred, the proviso must be applied, and the appeal dismissed. 1. At the risk of being tedious, I think it instructive to set out the following passages from Weiss (at 313-4 [34]-[35]; and 315-6 [39]-[40]): "Examination of the cases reveals that this danger of masking the nature of the appellate court's task is acute when the test to be applied is expressed by reference to what a jury would have done. Frequent reference is to be found in the cases to what "the jury", "a reasonable, and not a perverse, jury", "a jury of reasonable men, properly instructed and on such of the material as should properly be before them", would have done. Like the Court of Appeal in the present matter, the Donovan committee concluded that it was important to distinguish between a test which refers to the trial jury and a test which refers to any reasonable jury. The Donovan committee identified two conflicting views in the English cases about the way in which the proviso should be operated. The report of the committee said: "The one [way in which the proviso might be operated] is that the Court should try to assess the effect upon the mind of the trial jury if the fault had not occurred. In other words, suppose that the evidence wrongfully admitted had been excluded, or that the mistaken direction had not been given by the judge, must the jury who tried the appellant nevertheless have convicted him? The other is that the Court should itself decide the problem which the proviso sets; and should resolve it by reference to the test whether any reasonable jury properly instructed could upon the whole of the admissible evidence have done otherwise than convict." The committee concluded that the debate between these views had been resolved, in England, by the decision of the House of Lords in Stirland v DPP and had been resolved in favour of the "reasonable jury" test. The committee said: "The Court does not try to assess what the particular jury which heard the case might or might not have done; nor whether that jury must have convicted even if the irregularity had not occurred. It assumes a reasonable jury and asks the question "Could a reasonable jury, properly directed, have failed to convict?"" [Emphasis added] But as argument in the present appeal reveals, confining the debate about the meaning and operation of the proviso between a test referring to "this jury" and a test referring to "a reasonable jury properly instructed and on only the material that would properly be available" invites error. The fundamental task committed to the appellate court by the common form of criminal appeal statute is to decide the appeal. In so far as that task requires considering the proviso, it is not to be undertaken by attempting to predict what a jury (whether the jury at trial or some hypothetical future jury) would or might do. Rather, in applying the proviso, the task is to decide whether a "substantial miscarriage of justice has actually occurred". … Three fundamental propositions must not be obscured. First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt. Reference to inevitability of result (or the converse references to "fair" or "real chance of acquittal") are useful as emphasising the high standard of proof of criminal guilt. They are also useful if they are taken as pointing to "the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record". But reference to a jury (whether the trial jury or a hypothetical reasonable jury) is liable to distract attention from the statutory task as expressed by criminal appeal statutes, in this case, [s 6(1) Criminal Appeal Act 1912]. It suggests that the appeal court is to do other than decide for itself whether a substantial miscarriage of justice has actually occurred." [Footnotes omitted] 1. As French CJ, Gummow, Hayne and Crennan JJ said in Baiada Poultry Pty Ltd v the Queen (2012) 246 CLR 92; [2012] HCA 14 at 104 [29]: "…..demonstration that a chain of reasoning can be articulated that would require the verdict reached at trial does not always permit, let alone require, the conclusion that no substantial miscarriage of justice actually occurred." And at 105 [31]: "It may well be right to observe that the proviso could seldom be applied in a case where, as here, the jury were not sufficiently directed of the need to be satisfied to the requisite standard of an element of the offence being considered. And it may also be right to observe that the proviso could seldom be applied if "[t]he inadequacy of the judge's direction denied Baiada the benefit of the jury's consideration of one of its two principal defences". But it is important to emphasise the fundamental point made in Weiss: that the imposition of some taxonomy for the application of the proviso according to expressions — even judicially determined expressions — different from the relevant statutory expression invites error." (Emphasis added; footnotes omitted.) 1. Considering the evidence at trial, including the fact of the jury's verdict of guilty of manslaughter, and bearing in mind the natural limitations of the appellate process, I accept that a verdict of not guilty of murder, but guilty of manslaughter is well open. Like Hoeben CJ at CL and Button J, I have watched Exhibit "D" a number of times. What it depicts, coupled with the "consciousness of guilt of culpable homicide" evidence, in particular, supports that verdict. The Crown case is further enhanced by the contextual evidence of previous animosity between the accused and the appellant. However, I cannot say that verdict was inevitable. 2. I cannot say that such a result was inevitable because the conditions upon which the issue of self-defence may entitle the appellant to an outright acquittal were never explained to the jury. The written directions have been set out by Hoeben CJ at CL at [17] above. As his Honour points out, her Honour's oral directions were in almost identical terms. It was never put in express terms that self-defence may be a complete defence. The emphasis in paragraphs [4], [5], [9], [10], [11] and [12] of "MFI 23" was on self-defence as a gateway to manslaughter, if I may put that way, not acquittal. To repeat myself, the directions are silent about what consequence would follow if the Crown had failed to prove beyond reasonable doubt both of the conditions set out in paragraph [4] of "MFI 23". With respect, paragraph [10] was erroneous because it directed the jury that if they were not satisfied that the Crown had excluded self-defence they needed to consider the alternative verdict of manslaughter (by excessive self-defence). As Mr Game SC argued, this was erroneous because if the jury were not satisfied that the Crown had excluded self-defence, the accused was entitled to an outright acquittal. Notwithstanding the apparent strength of the Crown case and the demonstration of a rational logical train of reasoning to the verdict actually reached at the trial, as the jury were not asked to consider whether self-defence was available to the appellant to justify an acquittal, the appellant was "denied … the benefit of the jury's consideration of … [her] … principal [defence]". 3. I am not satisfied that the possibility that the appellant has been denied a chance of acquittal fairly open to her has been excluded beyond reasonable doubt. 4. Before leaving the matter, I wish to record that I agree that Hoeben CJ at CL at [48] above that the better approach to instructing the jury on self-defence in murder cases is to deal with ss 418 and 421 at the same time. I also agree with Button J that "ss 418 and 421 constitute, and must be explained to the jury as, an integrated conceptual whole". 5. This is not the occasion to attempt the formulation of a model direction for use in murder cases. Obviously there is no single appropriate approach. But I consider it appropriate when self-defence is raised that the jury is instructed that self-defence may be either a complete or partial defence to the charge of murder: if a complete defence, the accused is not guilty of murder; and if a partial defence, the accused is not guilty of murder, but is guilty of the somewhat less serious offence of manslaughter (by excessive self-defence). An explanation can then be given of what the Crown has to prove beyond reasonable doubt to exclude the complete defence and what is required to exclude the partial defence. Dealing with these issues at the same time should make clear to the jury that the failure of the Crown to exclude both elements to the jury's satisfaction beyond reasonable doubt entitles the accused to acquittal both of murder and its alternative, manslaughter. 6. I agree with the orders proposed by Button J. 7. BUTTON J: Introduction 1. I have had the substantial benefit of reading in draft the judgment of Hoeben CJ at CL. I agree with much of what his Honour has written. 2. As for ground 2 in the appeal against conviction, I agree with the Chief Judge at Common Law that no error is established in the directions about lies and consciousness of guilt. 3. As for ground 3, which asserts that the verdict of guilty of manslaughter is unreasonable or unable to be supported, I agree that that proposition is unsustainable as a matter of evidence. The CCTV footage of the stabbing, combined with the depth and location of the wound, strongly supports the proposition that the applicant committed the offence of manslaughter. Ground 1 1. Turning to ground 1, I agree with what his Honour has written about the directions given by the trial judge to the jury with regard to manslaughter by unlawful and dangerous act, self-defence to manslaughter, and causation. 2. I have respectfully come to a different view, however, about the directions given to the jury about self-defence with regard to murder, and the potential role of self-defence in either leading to a complete acquittal of both murder and manslaughter (on the basis of complete self-defence), or a verdict of not guilty of murder but guilty of manslaughter (on the basis of excessive self-defence). I have come to that view for the following reasons. 3. First, as his Honour has said, self-defence was the central issue in the trial. 4. Secondly, I agree with his Honour that the directions in para 5 of MFI 23 were, with respect, incorrect. For convenience, I repeat the entirety of that paragraph: [5] For the Crown to eliminate self-defence as an issue, it must prove beyond reasonable doubt one or the other of these matters. It does not have to prove both of them. If you decide that the Crown has failed to prove at least one of them beyond reasonable doubt, then the appropriate verdict is one of "not guilty of murder" but you need to consider the alternative verdict of manslaughter. 1. It can be seen from s 418(2) of the Crimes Act 1900 (NSW) that, in the circumstances of this murder trial, self-defence had two relevant "legs". 2. The first leg was the question of whether the applicant believed that her conduct was necessary to defend herself. 3. The second leg was whether that conduct was a reasonable response in the circumstances as the applicant perceived them. 4. If the Crown at trial failed to prove beyond reasonable doubt that the accused did not believe her conduct was necessary to defend herself, and the Crown failed to prove beyond reasonable doubt that the conduct of the applicant was not a reasonable response in the circumstances as the applicant perceived them, then the applicant was entitled to a complete acquittal; that is, a verdict of not guilty of murder and not guilty of manslaughter. So much is clear from the statement of Parliament to be found in s 418(1) of the Crimes Act, the statement of onus to be found in s 419 of the Crimes Act, and the import of s 421 of the Crimes Act (which only plays a role if the Crown succeeds in satisfying the jury beyond reasonable doubt that the conduct was not a reasonable response in the circumstances as the accused perceived them). 5. And yet it can be seen that the last sentence of para 5 of MFI 23 was to contrary effect: it instructed the jury that even if "the Crown has failed to prove at least one of [the legs of self-defence] beyond reasonable doubt, then the appropriate verdict is one of "not guilty of murder" but you need to consider the alternative verdict of manslaughter". 6. To express my analysis above more concisely and comprehensibly, and leaving out questions of onus in an effort to avoid confusing double negatives: if the Crown failed on both legs of self-defence, the applicant was entitled to a complete acquittal. The last sentence of para 5 is to opposite effect. 7. Thirdly, that is an error with regard to a fundamental aspect of the structural interaction between complete self-defence (leading to a complete acquittal) and excessive self-defence (leading to a verdict of not guilty of murder but guilty of manslaughter). 8. Fourthly, the fact that the erroneous direction appeared in written form means that it is very likely that the jury gave it considerable weight, in accordance with human nature, and authority: see, for example, Justins v The Queen (2010) 79 NSWLR 544; [2010] NSWCCA 242 at [242]. 9. Fifthly, it is true that the verdict of the jury of guilty of manslaughter is inscrutable. By that I mean, one cannot know with certainty whether, on the one hand, the jury was satisfied of all of the elements of murder (including a necessary mental element), but found the applicant guilty of manslaughter by way of excessive self-defence; or, on the other hand, the jury was not satisfied of all of the elements of the offence of murder, and found the applicant guilty of manslaughter on the basis of an unlawful and dangerous act. 10. Nevertheless, as a practical matter, having watched the CCTV footage that is exhibit D, and bearing in mind the location of the fatal wound in the chest of the deceased, and its depth of 7 cm, I think that the former process of reasoning is far more likely than the latter. As well as that, it is noteworthy that, in finding facts on sentence, the learned trial judge found without difficulty that an intention to inflict grievous bodily harm had been established, and proceeded to sentence on the basis of excessive self-defence. 11. In other words, I think it very likely that the verdict of the jury is based upon the version of manslaughter – excessive self-defence – about which a misdirection had been given. 12. Sixthly, it is true that juries are entitled to decide issues when deliberating in the manner and order that they see fit: see Stanton v The Queen (2003) 77 ALJR 1151; [2003] HCA 29 at [35]. Having said that, in considering verdicts in trials in which both murder and manslaughter are left as substantive alternatives, and also both complete and excessive self-defence are left for the consideration of the jury, as a matter of practical reality the analysis of a jury will surely very often commence with deciding whether the mental element for murder has or has not been made out, before turning to consider the role that self-defence (in either of its forms) should play. 13. In particular, because excessive self-defence does not arise at all if the jury is satisfied merely of the elements of manslaughter and not murder, then (in a murder trial in which self-defence is raised) in a practical sense it will very often be essential for the jury to consider first the question of which, if any, form of homicide is proven, before turning to an assessment of the "defence". 14. In other words, in the particular context of the inter-relationship between homicide and self-defence, I think that sequential reasoning generally is of significance. And that has the effect that the significance of the erroneous sequence contained in para 5 is heightened. 15. Seventhly, bearing in mind the error that I believe is to be found in the last sentence of para 5 of MFI 23, I consider that an erroneous pathway was provided to the jury, whereby they could have come to a verdict of guilty of manslaughter (by way of excessive self-defence). As I have said, if not satisfied that the Crown had succeeded with regard to the first leg, and not satisfied that the Crown had succeeded with regard to the second leg, the appropriate verdict was simply not guilty of murder and not guilty of manslaughter. 16. Eighthly, it is true that other portions of the written and oral directions could be interpreted as overcoming the problem in para 5. It is also true that it is possible that the jury ultimately came, by way of a roundabout path, to a verdict of manslaughter on the basis of a correct analysis of the operation of the first and second legs of self-defence, leading to a correct finding of excessive self-defence, and a correct verdict of not guilty of murder but guilty of manslaughter. 17. Having said that, para 5 is the first discussion in the written directions of the approach the jury should take, after having come to determinations about the two legs of self-defence. In light of its primacy and clarity, and reading the written and oral directions about self-defence as a whole, I am not confident that the jury did not take a false path to a verdict of guilty of manslaughter, thereby occasioning a miscarriage of justice. 18. Ninthly and finally with regard to the substance of this part of the ground, it is true, as I have said, that juries are entitled to approach the issues for their determination in the order and manner in which they see fit. But I do not accept the submission of the Crown that ss 418 and 421 of the Crimes Act are able to be analysed or understood separately. As a matter of statutory interpretation, they, along with the whole of Div 3 of Part 11 of the Crimes Act, constitute an over-arching statutory regime to be applied by a jury when a count of murder is on the indictment and the evidential burden is discharged by the accused with regard to self-defence. Far from being internally severable, I consider that, in those circumstances, the sections constitute, and must be explained to the jury as, an integrated conceptual whole. Rule 4 1. As for r 4 of the Criminal Appeal Rules (NSW), it is true that defence counsel at trial submitted that "we are suggesting as an overall but final direction that your Honour tells the jury if the Crown has not negated or disproved self-defence you must return a verdict of not guilty" (summing-up, 17 February 2015, at p 26). The making of that submission at trial argues against r 4 being applied to dismiss the appeal. 2. To be weighed against that is the fact that, in my view, that simplistic statement did not raise the far more refined and specific point now made on behalf of the applicant in this appeal. That argues in favour of r 4 being applied to dismiss the appeal. 3. Having said that, because of the fundamental nature of the misdirection, and my opinion that it constituted a miscarriage of justice, I do not consider that r 4 should stand in the way of the success of the appeal. The proviso 1. In short, I consider that it is quite possible that the jury adopted an invalid path to a verdict of guilty of manslaughter, based upon an erroneous written direction, which dealt with a fundamental aspect of the central issue for determination in the trial. 2. In those circumstances, despite my agreement with the proposition that the evidence that the applicant committed the offence of manslaughter is strong, I do not believe that the conviction should be permitted to stand. In other words, I am not persuaded that no substantial miscarriage of justice actually occurred in this trial, which culminated in a conviction for a form of homicide, along with a sentence of imprisonment for many years. Subsequent limitation 1. Finally, and contrary to the submission of senior counsel for the applicant, I do not accept that there should be any limitation on how the Crown presents its case for manslaughter at any subsequent trial. Apart from anything else, I do not accept that binding incontrovertibility can arise from a jury verdict when the basis of the success of an appeal is a misdirection about a matter fundamental to that verdict. Proposed orders 1. I propose the following orders: 1. The appeal against conviction is upheld. 2. The conviction for manslaughter is quashed. 3. There should be a new trial on a count of manslaughter. ********** Amendments 05 December 2017 - Publication restriction removed 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: 10 November 2020