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." Decision 1. Self-defence is a significant issue in this trial. Counsel for the accused opened as follows in relation to what he urged the jury to find the CCTV footage shows (T48.28-39): "What it fixes in time is this: That in the home of the accused on the evening of February 9, 2013 she at all times and in lawful response to attacks made upon her person by the deceased, Suzie Sarkis, responded in self defence. Whatever the Crown describes to you this afternoon, the detail that he has placed before you, needs and will be tested by way of scrutiny in what appears on that video. What that video shows, members of the jury, we submit to you you will ultimately see and determine for yourselves is this: An attack by the deceased that is unprovoked, protracted, hostile, focused and to some degree relentless and it ends when and only when the accused resorts to the use of the knives in the fashion that you will see in the CCTV footage to bring the matter to an end." 1. As submitted by counsel for the accused, and was accepted by the Crown, unless the Crown is able to prove beyond reasonable doubt that self-defence is not made out, the accused must be found not guilty. It is evident that in order to persuade the jury in accordance with its onus for manslaughter, the Crown's closing address properly directed attention to the evidence that related to one of the essential elements of manslaughter; namely voluntariness in terms of the act of stabbing. 2. Secondly, in terms of self-defence, attention was directed to the question of whether the accused believed her conduct was necessary to defend herself and whether the conduct was a reasonable response in the circumstances as she perceived them at that time. 3. To address those elements, it is appropriate for the Crown to address the jury on what it asserts is demonstrated in the CCTV footage leading up to and including the act of stabbing. 4. I have viewed the CCTV footage a number of times. Whilst what is shown on that footage is ultimately a matter for the jury, in my view the submission made by the Crown as to what is shown is one that was open to be made. 5. Counsel for the accused argued that the reference to the accused "arming herself" to "win the fight" is a direct reference to an intention to kill. I do not accept that is so. The Crown's submission needs to be viewed in the context of the carefully constructed series of propositions in the closing address as to what is shown on the CCTV footage at the critical time. The words "intent", "specific intent" or "premeditation" do not appear and do not necessarily arise from the interpretation of the footage put forward for the jury to consider. 6. Those aspects of the Crown's address were properly directed towards the jury's consideration of evidence that is capable of negativing self-defence, to address the Crown's high onus of proof in that regard, and in regard to the elements of manslaughter by unlawful and dangerous act. 7. Counsel for the accused stated in answer to a question by me that the asserted problem could be not cured by a direction to the jury. Accordingly, no direction was given to the jury on this issue. 8. The complaints raised by counsel for the accused are not made out. There is no proper basis to discharge the jury and I decline to do so. ********** Amendments 25 May 2018 - Added "(No 5)" to case title. 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: 08 August 2024