R v Katherine Abdallah (No 5) [2017] NSWSC 1672

Supreme Court New South Wales

Medium Neutral Citation: R v Katherine Abdallah (No 5) [2017] NSWSC 1672 Hearing dates: 8-24 November 2017 Date of orders: 22 November 2017 Decision date: 22 November 2017 Jurisdiction: Common Law - Criminal Before: Lonergan J Decision: Application refused Catchwords: CRIMINAL PROCEDURE – application for discharge of jury – comments made by Crown in closing address – use of word "aim" in relation to manslaughter charge – use of word "deliberately" in relation to manslaughter charge – where deliberateness not an element of charged offence – where self-defence raised Cases Cited: Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 Category: Procedural and other rulings Parties: Regina Katherine Abdallah (Accused) Representation: Counsel: Mr J Bowers (Crown) Mr G Stanton (Accused)

Solicitors: Director of Public Prosecutions (Crown) Bannisters Lawyers (Accused) File Number(s): 2013/40978 Publication restriction: Nil

Judgment 1. An oral application for a discharge of the jury was made on Wednesday 22 November 2017. This was the 11th day of this trial. The application came some hours into the Crown's closing address. 2. The accused is standing trial for manslaughter by dangerous and unlawful act in stabbing the deceased in the right chest on 6 February 2013. The act of stabbing and the altercation leading up to it is captured on CCTV footage that has been shown to the jury. Self-defence is in issue. 3. The complaint by counsel for the accused is that the argument posited by the Crown was more appropriately directed to an allegation of murder than to manslaughter. It was argued that the language used by the Crown of "aim" at the chest, where there are vital organs, coupled with the assertion of a deliberate act, is akin to asserting murder, an "act of pre-meditation" with "specific intent". 4. Secondly, it was argued that the description does not reflect the evidence in the CCTV footage of the event (Exhibit E) as the CCTV footage shows that the knife in fact "moves across the chest of the accused and makes contact with the chest of the victim". 5. In response the Crown stated that the submissions were directed to the question of whether the accused was acting in self-defence. It was argued that part of that defence is the need for the jury to make a determination regarding the circumstances as the accused perceived them to be at the time of the stabbing. The Crown submitted that it was open to summarise the evidence the way he had and that it is relevant to the accused's state of mind at the time and so is relevant to self-defence. The fact that this analysis might also be relevant to a charge of murder does not mean the submission is not appropriate for a trial for manslaughter where self-defence is raised. 6. The part of the Crown's address in issue is as follows, the references to the 24-hour clock (eg 17.59.46) are references to what it is submitted is shown on the CCTV footage at those times: "The accused armed herself, ladies and gentlemen, at a point in time when she knew Ms Sarkis had no weapons. Ms Sarkis followed the accused but she stops at the entrance to the kitchen. She saw the accused holding the knives and she stayed where she was (17.59.46). The accused lunges at Ms Sarkis, thrusting the knife in the left hand at her (17.59.47). She follows up a second later by swinging the knife in her right hand at Ms Sarkis (17.59.48). Ms Sarkis did take a couple of steps towards the accused but when she does it, her arms are down by her side. The Crown says the accused then positions herself and lunges at Ms Sarkis a third time with the knife in her right hand (17.59.53). The Crown says she aimed directly and deliberately for Ms Sarkis's chest in that third thrust of the knife. And as you know, she stabbed it hard into Ms Sarkis's upper right chest, to a depth of no less than 7 centimetres. As I said before, where lots of vital organs are. The Crown says the footage shows, when you look at it carefully and it is helpful to look at it a number of times, this part of it at any rate, members of the jury when she stabbed the deceased, Ms Sarkis, the accused acted swiftly, deliberately and effectively. Plunging a knife deep into someone's chest is not a reasonable thing to do, the Crown says. You see, at the time the accused knew Ms Sarkis had no weapons. She saw she didn't have her arms raised. The accused chose to arm herself with two weapons and to use both of them instead of leaving the place. It is always a matter for you, members of the jury, but the Crown says that's not self-defence. The Crown says this accused acted out of ongoing aggression, determined to win the fight, in the end using those knives." 1. The relevant test to apply in determining an application for discharge of the jury is set out by the High Court in Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 ("Crofts"). Before discharging the jury in this trial, I am required to be satisfied that there is a high degree of necessity to do so. As the plurality (Toohey, Gaudron, Gummow and Kirby JJ) observed in that decision (at 440): "No rigid rule can be adopted to govern decisions on an application to discharge the jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript."