Patel v Regina [2017] NSWCCA 121

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Patel v Regina [2017] NSWCCA 121 Hearing dates: 24 May 2017 Date of orders: 24 May 2017 Decision date: 02 June 2017 Before: Bathurst CJ at [1] Hoeben CJ at CL at [1] McCallum J at [1] Decision: Appeal allowed; conviction quashed; new trial ordered. Catchwords: CRIME – murder – self-defence – misdirection by trial judge as to appropriate verdict in the event the jury was satisfied as to matters required to be proved by the Crown – error conceded by Crown Legislation Cited: Crimes Act 1900 (NSW), s 421 Category: Principal judgment Parties: Manisha Patel (appellant) Regina (respondent) Representation: Counsel: T Game SC, G Huxley (appellant) S Dowling SC (respondent)

Solicitors: Legal Aid (NSW) (appellant) Office of the Director of Public Prosecutions (respondent) File Number(s): 2013/247888 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Date of Decision: 21 September 2015 Before: Wilson J File Number(s): 2013/247888

Judgment 1. THE COURT: Ms Manisha Patel was convicted, after a trial with a jury, of the murder of Ms Purvi Joshi. Ms Patel appealed against the conviction. On 24 May 2017, without opposition from the Crown, we quashed the conviction and ordered a new trial, reserving our reasons. In light of the position taken by the Crown, our reasons for making those orders can be stated briefly. 2. In 2011, the appellant met Mr Niraj Dave through a website used by Indian nationals seeking prospective marriage partners. They formed an intimate relationship. Relatively early in their relationship, they agreed they would not marry but they remained very close. 3. In early 2013, Mr Dave's parents arranged for him to be introduced to the deceased as a prospective marriage partner. Mr Dave travelled to India to meet her. The appellant travelled to India at the same time, taking the same flights as Mr Dave, but they had no contact with each other in India. On the return trip they had a stopover at a hotel where they slept together, following which the appellant discovered that she was pregnant. She terminated the pregnancy. 4. In July 2013 the deceased arrived from India to live with Mr Dave. 5. It was the Crown case that, in the early hours of 30 July 2013, the appellant went to Mr Dave's flat and attacked the deceased while she was asleep in bed under the doona. She died of a combination of strangulation and smothering. The Crown alleged that, before leaving the apartment, the appellant tipped over baskets and emptied the deceased's handbag to create the appearance of a disturbance. 6. The appellant initially denied to police that she had been at Mr Dave's flat that morning. At the trial, however, she gave evidence that provided the foundation for a case of self-defence. That was the critical issue at the trial. The appellant said in evidence at trial that she had lied to police because she was panicked and scared. She said the deceased had confronted her the previous week demanding to know about her past relationship with Mr Dave. She said the deceased had, on an earlier night when the appellant had slept at Mr Dave's flat, taken her passport and insisted that the appellant tell her everything, threatening to keep the passport if she did not. The appellant said she told the deceased about her prior relationship with Mr Dave and about the termination. The deceased demanded evidence of that event (a receipt or the clinic papers). The appellant said she returned to the flat on the morning of 30 July where the deceased was awake and waiting for her. She said an argument developed during which the deceased came into the bedroom armed with a knife. They had a struggle and the deceased threatened her and called her rude names. She got angry and put her hand over the deceased's mouth to stop her speaking. They fell to the floor and she put her hand around the deceased's neck and squeezed. 7. The appellant appealed on the following grounds of appeal: Ground 1 The trial judge erred in her directions on the question of self-defence in respect of both murder and manslaughter. Ground 2 The trial judge erred in her directions regarding using the appellant's lies and post-offence conduct as consciousness of guilt for murder. 1. The Crown conceded that the trial judge's written direction on self-defence in relation to the offence of murder was erroneous. The Crown further conceded that, in the circumstances, it could not be concluded that no miscarriage of justice had occurred and accordingly that the conviction should be quashed with an order for a new trial. We were satisfied that those concessions were appropriate. In the circumstances, the appellant did not press the balance of ground 1 or ground 2. 2. It is appropriate briefly to explain our reasons for accepting the Crown's concessions. Section 421 of the Crimes Act 1900 (NSW) provides: 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. 1. The judge provided a written document to the jury as an aide memoire to the summing up (MFI 39). In that document, the topic of self-defence was addressed in the following terms (emphasis added): Where self-defence is raised on the evidence as a lawful excuse, as it is here, the Crown must prove (in addition to 1 and 2) beyond a reasonable doubt that either, (a) The accused did not believe at the time of the acts of smothering and strangulation that it was necessary to do what she did in order to defend herself, or that (b) Those acts were not a reasonable response in the circumstances as the accused perceived them to be. If the Crown eliminates self-defence by proving one of these things, your verdict would be one of guilty to murder. If, on the other hand, the Crown fails to prove either of those things, then the verdict is one of not guilty to murder. 1. The judge directed the jury substantially in those terms in her summing up. Her Honour said: It is for the Crown to eliminate or to rule out that as an issue by proving to you beyond reasonable doubt that Ms Patel's acts in smothering and strangling Ms Joshi were not done by her in self-defence, and it can do that by proving beyond reasonable doubt the things that I have got marked there on your handout as items (a) and (b). Firstly, the Crown can set out to prove to you beyond reasonable doubt that the accused did not believe at the time of the acts of smothering and strangling Ms Joshi that it was necessary to do what she did in order to defend herself, so that is the first way in which the Crown can negative or eliminate or rule out this issue of self-defence by providing to you that in fact Ms Patel did not believe at the time she did those acts that it was necessary to do those things to defend herself. Or the Crown can prove the second of these things that I have set out for you there as item (b) and that is that the acts were not a reasonable response in the circumstances as Ms Patel perceived them to be. A reasonable response is a proportionate response essentially, a proportionate response to the violence that Ms Patel told you in evidence was offered to her by Ms Joshi who, she says, came at her with a knife. For the Crown to eliminate self-defence as an issue it has to prove beyond reasonable doubt one of those things, (a) or (b). It does not have to prove both of them, it has to prove one of them beyond reasonable doubt. If you decide that the Crown has failed to prove either of those things then Ms Patel must be acquitted. The verdict would be one of not guilty. 1. Her Honour proceeded to direct the jury as to the alternative verdict of manslaughter in the event that they were to conclude that the Crown "has not proved either (a) or (b)" (summing up, pages 17-18). 2. As conceded by the Crown, the direction on that issue was erroneous. The effect of the direction was that the appellant could be found guilty of murder even if the Crown failed to prove she did not believe her acts were necessary in order to defend herself. The true position is that, in order to prove that the appellant was guilty of murder, the Crown had to prove beyond reasonable doubt that the appellant did not believe her conduct was necessary to defend herself. In the result, the judge's directions left open the possibility of conviction for murder where the appropriate verdict would have been what might be termed excessive self-defence manslaughter. 3. In the circumstances, the Crown properly conceded that the Court would not be satisfied that no substantial miscarriage of justice had actually occurred. It followed that the conviction had to be quashed. 4. For those reasons, the Court made the following orders on 24 May 2017: 1. That the conviction be quashed. 2. That there be a new trial. 1. The proceedings will be entered in the next arraignments list on 2 June 2017.