Hassan v R

BATHURST CJ: Yassir Ibrahim Mohamed Hassan (the applicant) was charged for the murder of his wife Mariam Henery Yousif (the deceased) on 17 April 2012. On 6 December 2013, following a trial before a jury, he was found not guilty of murder of the deceased, but guilty of manslaughter. On 21 March 2014, the applicant was sentenced by the sentencing judge to a total term of imprisonment of 12 years with a non-parole period of 9 years: R v Hassan [2014] NSWSC 280.

In sentencing the applicant, the sentencing judge proceeded upon the basis that the manslaughter of the deceased occurred as a result of what he described at [55] as a “low level verbal provocation which was shortly thereafter followed by an excessively violent and brutal attack”.

The applicant has sought leave to appeal against his sentence. The principal proposed grounds of appeal were that the sentencing judge failed to make the finding to which I have referred to at [2] above beyond reasonable doubt, or alternatively, that the finding was not open to be made beyond reasonable doubt.

Having regard to the proposed grounds of appeal and the submissions made by the parties, it is necessary to consider the evidence led at the trial in some detail. It is convenient to do so by reference to the evidence of the critical witnesses in the order in which they gave evidence at the trial.

Senior Constable Josephs was a “crime scene officer” who first examined the scene of the offence at a unit on Alice Street, South Wiley Park (the unit) on 18 April 2012. She stated that, on her arrival at 1:30am, she saw the deceased on the floor of the main bedroom, “lying between the dresser and the mattress”.

Senior Constable Josephs said that the deceased was “lying on the left side of her back facing north with her right leg behind the door and her face against the side of the lower mattress”. She said that the deceased was “only wearing a pair of underpants which were bloodstained and a blue bloodstained pyjama top was over her left arm and shoulder”. She said that there were bloodstains on “most of her body”, including her face. She said that she saw that there were no bloodstains on the sole of her right foot. She described a wound to the left thoracic area, one on her right breast, one below her right breast and one under her right arm. When the deceased was rolled onto her front, she observed a “long cut” along the right side of her back.

Senior Constable Josephs said that the floor of the bedroom was carpeted with “a light brown carpet and a mustard and green floral floor mat”. She said that the carpet and the mat had numerous blood stains on them and that she saw a “partial bare right footprint in blood on the carpet facing the hallway”. She said that the room was “crowded” and that two double-bed mattresses were “stacked on top of each other against the western wall”. She said that she saw “patches of blood staining on the edge of the lower mattress”. She said that the bed was unmade and had a “black and white and pink floral frilled quilt cover”. She said that she could see some areas of blood staining on the frilled edge. She said that a “pink and fawn floral patterned blanket and a red and pink floral patterned blanket were bundled together on the south-eastern corner of the bed closest to the door”. She said that she saw a “red stain” on the pink and fawn blanket.

Senior Constable Josephs said that, behind the bedroom door, she saw “three pieces of red coloured tissue stuck to the lower half of the door”. She said that she also saw an area of bloodstains “near to the bottom hinge side of the door”. She said that, on the wall on the south-eastern corner of the room, she saw another area of bloodstains.

On 24 April 2012, Senior Constable Josephs said that she undertook an examination of the bedding and the blankets from the bedroom. In relation to the pink and red blanket, she saw that it was stained and there were “three holes through the blanket in the bottom right-hand corner”. She said that there was a “red stain” adjacent to the first hole which testing “indicated positive for the possible presence of blood”. She also said that there was no stain beside the second hole, while a red stain beside the third hole also “indicated positive for the possible presence of blood” after testing. She also said that she then examined the pink and fawn blanket which she said had “many areas of red staining on both sides”. Once the blanket had been laid out, she identified “16 holes of varying lengths in the fabric”.

On 25 April 2012, Senior Constable Josephs said that she examined a white and blue jacket taken from the unit. She said that she saw a number of areas of red staining on the front of the jacket with the majority being on the front left side. She said that there were “smaller red spots” on the front right and also some “diluted” stains. She said that the front side of the left arm had red stains on “the white area from the elbow to the cuff and on the blue section of the arm, around the cuff and inner seam”. She also saw some “dark coloured” stains on the blue material around the armpit area. She said that tests of the stains indicated “positive for the presence of human blood”. She said that she took blood swabs from the areas and that the DNA recovered had the same profile as the applicant. She agreed that the jacket was not “in any way damaged”.

Senior Constable Josephs then said that she conducted an examination of a pair of black jeans. She said that she examined the outside of the jeans for the presence of blood and saw “nothing of interest”. However, when she turned the jeans inside out, she saw an area of red staining which ultimately tested “positive for the presence of human blood”. She said that she then turned the jeans over to examine the rear inside surface and saw a red stain on the rear pocket area of the right leg and a second stain just above the rear pocket of the left leg. The first stain tested “positive for the presence of human blood” and she then collected a swab. She said that testing of the DNA recovered showed that the major component had the same profile as the deceased while the minor component had the same profile as the applicant.

Senior Constable Josephs next examined a pair of grey boxer underwear which she understood was the underwear that the applicant was wearing when he was arrested on 17 April 2012. She said that she saw two areas of red stains on the front right of the underwear and two “small red stains” on the bottom hem of the left leg. She also said that she saw three red stains on the upper right side of the rear of the underwear. These stains tested “positive for the presence of human blood”.

On 10 May 2012, Senior Constable Josephs conducted a further examination at the unit. She said that she examined the northern wall of the hallway and saw a pale red blood stain which tested “positive for the presence of human blood”. She said that she collected a swab from the stain and that testing of the DNA recovered revealed that the major component had the same profile as the applicant and the minor component the same profile as the deceased.

Senior Constable Josephs then conducted and examination of the bedroom in which the deceased was found and saw that the double bed mattresses had been placed back down on the floor. She said that she observed a brown coat and a pair of black cargo pants on the corner of the bed nearest the door. Senior Constable Josephs then said that she examined the top surface of the mattress and saw no damage but did see “a long area of damage on the edge”, which she stated “did not appear to be a recent occurrence”. She said that she saw a number of small pale red coloured stains, a single red stain nearest to the south side of the mattress and two further stains. Tests indicated that the latter two stains were blood stains. She said that she collected a blood swab from each of those stains and that testing of the DNA recovered had the same profile as the deceased.

Senior Constable Josephs then examined the dresser in the bedroom. She said that she saw the top drawer on the eastern side had a red stain which tested “positive for the presence of human blood”. She collected a swab from the stain. She also saw a blood stain on the eastern end of the dresser which also tested “positive for the presence of human blood”. She took a swab from this stain. The major component of the DNA recovered from both stains had the same profile as that of the deceased, with other DNA from at least one other individual being present.

On 12 May 2012, Senior Constable Josephs gave evidence that she examined a pair of black underpants collected at the post mortem of the deceased on 18 April 2012. She noted that they were “very heavily bloodstained with the greatest amount on the front and rear right sides”. She observed that no areas of damage were cut in the underpants.

She then said that she examined a bloodstained pyjama top collected at the post mortem of the deceased. She saw that it was “very heavily bloodstained with congealed blood on the inside surfaces”. She said that she saw a “cut from the lower right hem up the centre to the neck line and across to the hem”. However, she said that this was “typical of cuts made by ambulance officers in rendering medical aid”. She said that she also saw 17 holes in the front of the top. On the same day, she said that she examined some clothes she found in the washing machine at the unit, namely, a pair of black coloured jeans. She stated that they had tested negative for the presence of blood.

On 24 July 2012, Senior Constable Josephs examined the floral doona cover from the bedroom in which the deceased was found. She said that she first examined what she identified as “side A”. She said that she saw “visible bloodstains on the frill on the right side and from there across the cover in patches to the third row of flowers”. She said that the stains ran “nearly the entire length of the doona cover from top to bottom on the left side”. She also noted a “small frayed tear in the right side frill approximately in the middle of the largest bloodstain”. She said that she also saw an “L-shaped frayed tear on the right side frill towards the bottom of the cover”.

She then examined the other side of the doona cover and saw bloodstains on the frill corresponding to those noted on the first side, although they were “smaller in size”. She said that she only saw one blood stain on the cover itself, but that it corresponded with the stain on the other side of the cover. A test of the stain indicated “positive for the presence of human blood” and she collected a blood swab. She referred to the blood on the frill of the doona cover, and by reference to a photograph, agreed that the body of the deceased was lying immediately below it.

On the same day, Senior Constable Josephs conducted a further examination of the two blankets which she had first examined on 24 April 2012, as I have noted at [9] above. She said that, on the pink and red blanket, she saw three areas of dark staining. The first stain tested “positive for the presence of human blood” and she collected a swab. The others tested negative. She said that she then examined the other side of the blanket and observed two dark stains in “close proximity” to each other. She tested one of these, and the test indicated “positive for the presence of human blood”. She said that she saw another dark stain in the bottom left hand corner of the blanket, which also tested “positive for the presence of human blood”. She collected a swab from each of these stains. She said that testing showed that the DNA recovered from the stains on the first side of the blanket she examined originated from two individuals, with the major component containing the same profile of the deceased. Of the swab taken on the other side, the major component had the same profile as the applicant.

Senior Constable Josephs said that she then conducted further examination for blood on the pink and fawn blanket. She said she saw the blanket had “many areas of dark staining on the tips of the fibres in the blanket”, adjacent to the holes she had identified in the blanket which I have noted at [9] above. She said that she saw a larger area of staining on the lower left edge of one side “near where the trim had been pulled away”. She performed a test for blood and it indicated “positive for the presence of human blood”. She said that she also saw a second area of staining on the tips of the blanket fibres on the top left hand corner of that side of the blanket. The test indicated “positive for the presence of human blood”. She collected a blood swab from both areas of staining.

Senior Constable Josephs then said that she examined the other side of the blanket and saw “numerous dark stains” on the left side adjacent to holes she had identified in the blanket. She said that they all appeared to be “smears across the fibres of the blanket”. In the bottom left-hand corner, she said that she saw a “small area with three small round dark stains” which looked “different in shape” to the other stains. She said that they tested “positive for the presence of human blood so she collected a blood swab. She said that the swabs taken from both sides of the blanket had the same profile as that of the deceased.

Senior Constable Josephs was shown a report obtained on behalf of the applicant from Ms Helen Roebuck, a forensic biologist consultant, in which Ms Roebuck was asked to examine both blankets, amongst other things. It was put to Senior Constable Josephs that the report stated that Ms Roebuck’s examination for the staining on the blankets was done without conducting any forensic testing, but rather, it was just a physical examination. She said that she agreed with that statement. She also agreed that Ms Roebuck’s examination was done “only recently in the last few weeks”. She also agreed with Ms Roebuck’s statement in the report that none of the stains on the blanket had a “saturated” appearance.

In cross-examination, Senior Constable Josephs agreed that she examined the applicant’s jacket and underwear and that the DNA recovered from each of those items was his and that none of her investigations revealed any blood of the deceased on either the jacket or the underwear.

Senior Constable Jarman gave evidence that, at about 11:20pm on 17 April 2012, she attended the unit. She said that she saw the applicant at the front door and, after entering the house, asked what had happened. The applicant said, “I have problems with my wife.” Senior Constable Jarman said that she asked, “Where is your wife?” to which the applicant replied “Here, here” and took her to the bedroom in which the deceased was found.

Senior Constable Jarman said that she observed blood on the applicant’s jacket as he took them to the bedroom. She said that, after she had reached the bedroom, she took a step inside the room and saw a female lying on the ground. She said that the female was next to “a double bed which was a mattress on top of an ensemble”. She said that the female was lying on her stomach with her left arm underneath her chest. Her legs were together and “facing behind the bedroom door”. She said that the female was wearing a pair of underpants and a blue t-shirt.

Senior Constable Jarman said the female was not breathing and not responding to her. She said that she observed numerous stab wounds to her body, “specifically on the back of her upper right leg, her back, and what looked like defensive wounds on her forearms”.

Senior Constable Jarman said that she had a conversation with the applicant. She said that she asked him “Did you do this to her?”, and the applicant responded “Yes”. She said that she then asked him “What with? What with?” and the applicant said “A knife”. She said that she asked him “Where is the knife?”, and the applicant said “In the safe”. Senior Constable Jarman said that she walked back into the bedroom and again attempted to roll the female over. She said she could see a large pool of blood underneath the female and, when she was moving her, observed further stab wounds to her stomach. She also observed a “tissue substance” protruding from a stab wound on her stomach.

Senior Constable Watson attended the unit at about 11:30pm on 17 April 2012. He was informed the applicant had been arrested and that he had been cautioned. He said that he had a short conversation with him in the following terms.

Senior Constable Watson said that he asked the applicant “What happened between you and your wife?”. He said that the applicant said “I have very big problems with my wife, long big problems. I have so much stress”. Senior Constable Watson asked him “Did you attack your wife?”. He said that the applicant said “We had a big fight”.

Senior Constable Watson said he made a “cursory search” of the kitchen drawers. He said that he could not locate any bloodstained knife, although he noted that there was a “large clean kitchen knife” on the drying rack next to the sink.

Constable Cuffe gave evidence that, at 12:50am on the morning of 18 April 2012, the applicant was taken by ambulance to Canterbury Hospital. She said that she drove a police car behind the ambulance. She said that she saw the applicant being treated by a doctor, Dr Rose Sacca, and that, when Dr Sacca took off a bandage from the applicant’s left arm, she saw a laceration.

She said that Dr Sacca left the applicant and the ward and returned with a Canterbury Hospital security guard, Mr Hayder Dayoub, who spoke Arabic. Dr Sacca asked the applicant, using the security guard as an interpreter, how he got the cut. The interpreter translated the applicant’s response as “My wife did it”. Constable Cuffe said that the applicant subsequently stated, through the interpreter, that “his wife was trying to stab herself with the knife and he had gone to grab the knife and had got a cut on his left arm”.

Constable Cuffe acknowledged in cross-examination that none of this conversation took place in English.

Dr Sacca gave evidence that she was the Senior Resident Medical Officer at Canterbury Hospital. She said that she saw the applicant in the Emergency Department on the morning of 18 April 2012.

Dr Sacca described the applicant as having a “superficial laceration” to his left forearm. She said that it was “about 10 centimetres” in length, and was “approximately halfway under the forearm”. She said that it was “crossed the surface of the forearm in an open, diagonal fashion with the left side”, the “outer surface of the arm being further away from the end of the arm” and the “edge of the side that was on the inside of the forearm being closer to the hand”.

Dr Sacca said that the laceration “appeared to consistent [sic] of three different depths, although still being superficial”. She said that “the side on the outer edge of the forearm was the deepest and the edges were quite gaping”. She said that they required stitches. She said that “the part in the middle of the laceration was, whilst still continuous, very superficial like a deep scratch”. She said that, finally, “the last part of the wound, was again a little bit deeper than a scratch, but not as deep as the first part and that required some sticky plasters or small little bandages”.

Dr Sacca said that she asked the applicant through an interpreter, a security guard working at the hospital, how he sustained the injury. She said that she had recorded on her notes that the applicant had said, through translation, that “left arm injured when his wife, who was trying to kill herself with a knife, then attacked him”.

Mr Dayoub was the security guard used by Dr Sacca as an interpreter on the morning of 18 April 2012. In the Emergency Department, he said that he saw a man on the bed who had an injury to his arm. He described the injury as “about 2 centimetres high” on the left arm before stopping, and then “another 2 centimetres” before stopping again, and then “another 2 centimetres”, like “a broken line”. He said that the first section was “very deep”, about 1.5 cm. He said that the second one was “deep, same thing” and that the last one was “a bit shallow”.

Mr Dayoub said that Dr Sacca asked him to ask the man what had happened, and the man replied “my wife tried to kill herself with a kitchen knife and I tried to take the knife; she slashed my left arm” or “my arm”.

Dr Van Vuuren was a forensic pathologist. On 18 April 2012, she said that she went to the unit to examine the deceased and on the same day carried out an autopsy on the deceased. In her autopsy report of 19 September 2012, she recorded the cause of death as “multiple stab wounds”. Dr Van Vuuren made the following observations in that report.

Dr Van Vuuren said that the post-mortem examination showed a stab wound on the back with the track of the wound extending in between the ribs of the back into the lung, the diaphragm, the liver, the inferior vena cava, which she described as “the big blood vessel that transports the blood from your legs back to your heart” and the kidney.

Dr Van Vuuren said that this wound was “quite significant because it went through the inferior vena cava”, which she described as “a really big blood vessel”. She said “you would bleed from it, although slowly” and that it could cause death. She stated that the bleeding she described would be internal bleeding.

Dr Van Vuuren also described a stab wound on the right side of the chest with the track of the wound extending in between the ribs of the back into the right lung. She said that a stab wound was also present at the top of the stomach area extending through the right lower lung, the diaphragm and into the liver. She also described a stab wound extending through the right breast tissue and two stab wounds present on the left chest extending into the cavity surrounding the lungs.

She also said that a stab wound was present on the left side of the upper stomach extending into the liver, the stomach and in between the stomach and the spleen. She described two more stab wounds present on the left shoulder and right leg with “superficial tracks”. She said that multiple stab wounds were also present on the left upper leg and hip which extended superficially through muscles and other soft tissues.

Dr Van Vuuren also observed what she described as “self-defence injuries” on the hands and “on the dorsal aspect” of the left arm. She said that self-defence injuries “are very superficial and are in places that you would expect people [to be injured] when they … defend themselves”.

Dr Van Vuuren also noted that there was a stab wound on the right chest with a track extending underneath the right nipple to the top of it. She also referred in the autopsy report to a stab wound on the left upper shoulder which she described as a “superficial” stab wound.

Dr Van Vuuren described another stab wound as one underneath the left armpit extending to the front and a small stab in the space between the ribs, and also identified a stab wound on the left side of the chest and one underneath the left breast. The track of the latter wound extended through the ribs, into the left lung, into the sac containing the heart, and then into the left ventricle of the heart. She said that this was the wound which “probably” killed the deceased.

Dr Van Vuuren described a number of other stab wounds in her autopsy report and she said that her evidence had summarised the more significant ones that she had noted. She said that, at a minimum, there were at least 14 stab wounds, but that there “could be more if you count the hands and arm injuries” as well. She also agreed that, when someone is stabbed multiple times, it is “common to find a lot of blood inside the body”.

Dr Van Vuuren later described what she saw on the hands of the deceased. She identified four wounds: one on the right hand and three on the left hand. She said that they were “superficial cuts to the hands” which could occur “when the person tried to grab the knife or tried to protect the hands from the stab wounds”.

Dr Van Vuuren was then asked to consider two scenarios by the prosecutor. In that context, she gave this evidence:

Dr Van Vuuren then elaborated on those answers. She agreed that the “position of the deceased and her movements” could affect how much blood came to be on the blankets. She said that, if the blanket was on top of the body, then “you would expect less bleeding than on the back, because of gravity” and, if the blanket was folded, then “some areas would contain more blood than others”. She agreed that this would also occur if “the deceased was not just lying down”, but when she was “getting up, or standing up at the time the blanket is between her and the stabber”. She then gave the following evidence:

In cross-examination, Dr Van Vuuren agreed that, if blood vessels in the body had been broken by the use of an implement inserted into the body, there would be blood on the implement while it was within the body and, once withdrawn, an amount of blood would be on the implement. She also agreed that some of the blood would remain on the implement after it was withdrawn from the body.

In cross-examination, Dr Van Vuuren was also shown photographs of the hands of the applicant and agreed that the location of two lesions on his hands was “characteristic of where you might find defensive wounds”. However, in re-examination, she said that the wounds that were shown “don’t really look like incisions”, but that they “look more like abrasions”. She said that, even if the position of the injuries was consistent with self-defence injuries, it did not mean that “abrasions always are self-defence, because you can get these injuries during normal day-to-day activities”. She said that an abrasion is basically “an injury to the superficial layers of the skin”. She described it as “basically the same thing as a scratch”. She said that the incisions that were described on the deceased were cuts which were “totally different from an abrasion”. She said that it was possible to get abrasions during self-defence injuries, but that the applicant had a knife. She said that the deceased had stab wounds that were “probably inflicted by a sharp instrument, like a knife”. She was then asked the following question by the sentencing judge and gave the following answer:

Ms Wood, who described her occupation as a “crime scene officer”, stated that, on 14 May 2012, she was handed a knife which had been collected from the crime scene. She said that she took a swab of blood from a rubber groove on the knife handle and a swab for trace DNA on that handle. She did a test for blood on the rubber groove of the knife handle and it came back “positive for the possible presence of blood”. She said that an analysis showed that the DNA recovered “appears to originate from two individuals”, who were the applicant and the deceased.

Ms Wood said that no blood was detected from the other swab on the knife handle which she took, but that the DNA recovered again “appears to originate from two individuals”, who were the applicant and the deceased.

Senior Constable Woods gave evidence that he attended the unit on 17 April 2012 and searched the applicant. He said that, during the search, he rolled him to his right side and saw “a number of red smeared stains on the front of the white tracksuit jacket he was wearing”. He said that, as he rolled the applicant to his left side, he saw a laceration which he described “as being about 7 centimetres long and 3 millimetres wide”. He said that the laceration “appeared to run along the inside of the male’s forearm”. He noticed that the laceration was not bleeding.

Ms Yousif was the deceased’s younger sister. At the time when she gave evidence, she was 15 years old.

Ms Yousif gave evidence that the deceased returned from “the Sudan” in 2008 and came to live in Australia with the applicant. She said that, at the time, she was living in Melbourne with her mother and father and that the deceased came to stay with them as well as her two children and the applicant. She said that the deceased stayed there “for a couple of months” before the applicant moved to Sydney. She said that the deceased and her children moved to Sydney “a couple of months” thereafter.

Ms Yousif said that, between 2008 and 2011, she visited her sister in Sydney “once or twice a year”. In December 2009, she said that the deceased came back to Melbourne to give birth to her third child and that she stayed with her and her mother “for a couple of weeks” before returning to Sydney. She said that she continued to have contact with the deceased by phone. She said that she would speak to her “every day, usually after she put the kids to sleep at night”.

Ms Yousif gave evidence concerning phone conversations in February and March 2012. She said that the deceased told her that “she had to always get permission from [the applicant] to leave the house” and that she “would have to call him on his lunch break, just during the day” and “every time she would go out”. Ms Yousif said that the deceased told her the applicant would beat her if she did not phone him during the day.

On 17 April 2012, Ms Yousif said that she went to school and she spoke to the deceased at about 8:00pm. She said that the deceased told her that “she had found a recording device under the master bedroom pillow”. She said that the deceased told her that she had broken the device. She said that the deceased sounded “very, very angry” and told her that this was the “third time” that it had happened. Ms Yousif said that she told the deceased to “calm down” and “ask her husband” about it. She said that the deceased responded that “she had spoken to him and that he denied it”.

Ms Yousif gave evidence of a further conversation around 10:00pm. She said that the deceased sounded “nervous” when she answered the phone and also “really upset”. She said that the deceased told her that the applicant had got home and was in his room and had not talked to her. She then said that the deceased told her she thought the applicant “would kill her”. She said that the deceased started crying and sounded “really, really upset”. She said that the deceased told her she wanted to come back to Melbourne with her kids and that she had “had enough of [the applicant] being jealous and rude”. She said that the deceased told her that she hated the applicant and could not “be with him any more because of what he was doing to her”.

Ms Yousif said that she had a later conversation with the deceased that night. In that conversation, she said that the deceased told her that she wanted her mother to call the applicant on his phone.

In cross-examination, Ms Yousif agreed that, after the deceased moved to Sydney, she came to visit her mother in Melbourne at times with her children without her husband and she would stay “for a weekend or a week” at her mother’s home.

Ms Yousif agreed that the deceased came to Melbourne for the birth of her third child and that she came without her husband. She also agreed that she and her mother would also travel to Sydney to visit the deceased and would stay at the deceased and the applicant’s unit in Alice Street. She agreed that the applicant was “always polite” to her when she was at the unit.

It was suggested to Ms Yousif that she spoke to the deceased after school on 17 April 2012 at around 3:30pm. She said that she could not remember that happening, but agreed that, if she did speak to the deceased, “nothing unusual” was said.

Ms Yousif was then asked about the first phone call at about 8:00pm on the evening of 17 April 2012. She agreed that it would be right that she described the deceased as being “very pissed off”. She was then asked about the later phone call at about 10:00pm, and she repeated that the deceased told her that she thought the applicant was “going to kill her”. Ms Yousif agreed that she said to the deceased that “he’s probably joking around, he isn’t going to do it”. At one point, it was put to Ms Yousif that the deceased did not tell her that the applicant had said that he was going to kill her and she agreed. However, immediately after, she said that the deceased did say that the applicant had said that to her.

Ms Yousif was then asked about a statement she made to the police and agreed that it was “about two weeks” after the deceased died and that matters were “fresh” in her memory. She agreed that, at the time when she made her statement, the fact that the deceased told her that the applicant said that he was going to kill her was something that was “stuck in [her] mind” and “was important”. It was put to her that there was nothing in the statement to the police to that effect nor was there anything to the effect that the deceased had “had enough of [the applicant] being jealous”.

It was put to Ms Yousif that, in her statement to the police, she had said “Cathy, I hate him. He is making me not want to love him any more. I don’t want anything to do with him after this. And I want to come back to Melbourne”. She agreed that this was what she told the police and that the deceased was “screaming” when she said it.

Ms Yousif was asked about her final conversation with the deceased and agreed that, in her statement to the police, she had said that she told the deceased that her mum was at the shops. She said that the telephone conversation between her and the deceased took “about 10, 20 minutes”. In cross-examination on this conversation, she said that the deceased told her again that she was “upset” and that the applicant would kill her, although she subsequently said that she could not recall her saying that in this conversation and that she could not remember what else was discussed in this conversation.

It was put to Ms Yousif that her phone records showed that she had a conversation with the deceased at 3:30pm for 11 minutes and 37 seconds. She said that she could not remember that phone conversation. It was also put to her that she had a telephone conversation at around 9:21pm which lasted for 17 to 18 minutes. She said that she could not recall that conversation.

Ms Yousif agreed that she was “very, very close” to the deceased. It was put to her, at the end of her cross-examination, that the deceased never said to her that the applicant had “threatened to kill her”. She said that she did not remember.

Mrs Zaki was the deceased’s mother. She gave evidence that arrangements were made for the applicant, the deceased and their family to come to Australia in October 2008. She said that, when they first arrived in Melbourne, they lived with her, with the deceased staying with her for two months and the applicant for one month.

Mrs Zaki said that the applicant did not want her to get involved with the children when they were staying at her house in Melbourne. She said that she did not like the way that the applicant was “dealing with” her daughter and her children.

Mrs Zaki said that, after the deceased moved to Sydney, the deceased would visit her in Melbourne twice a year. She said that she would only come with the children and not the applicant. She said that the deceased also returned to Melbourne in December 2009 to give birth to a child.

In October 2011, Mrs Zaki said that the deceased returned to Melbourne with her three children. She said that the deceased told her that her husband had divorced her and that she was to go back to her mother. Mrs Zaki said that the deceased was “relieved” about being divorced because she felt that she was “always controlled” and “not happy”.

Mrs Zaki gave evidence that the deceased told her that she had found a “USB or MP3 recorder”. The deceased had told her that she listened to a recording and found that her and her mother were recorded talking over the phone. The deceased had told her that she found the recorder under her pillow.

Mrs Zaki said that the deceased left Melbourne to return to Sydney with the applicant after the applicant rang her and said, "Because I divorce you when I was upset so this one is not counted". Mrs Zaki said that the deceased did not particularly like it, but wanted to go back to live with him for the sake of the children.

In November or December 2011, Mrs Zaki said that she talked to the applicant about what the deceased had told her about her conversations being recorded. She said that she told the applicant that there was “no man that does that” and that he told her to “mind her own business”.

On about 14 or 15 April 2012, Mrs Zaki said that the deceased spoke to her and told her that the applicant “took the lock out of the door” of the main bedroom. Mrs Zaki said that the deceased told her that, when she asked applicant why he did that, he said that it was “because of the kids”. She said that she was “scared” because the bedroom was the room she went into when she was “scared or upset”. The deceased told her that she would “go inside and lock herself with the keys inside the room”.

On 16 April 2012, Mrs Zaki said that she spoke to the deceased on the phone and the deceased told her that she found another recorder and that she had broken it. The deceased again said that she had found the recorder under her pillow.

On the morning of 17 April 2012, Mrs Zaki said that she spoke to the deceased. She said that the deceased told her that she wanted to use the food processor and that she had found that the cord was cut. She said that the deceased told her that she thought that the applicant cut the cord “so when he record her, the sound of the processor would be recorded as well”. Mrs Zaki said that the deceased sounded “upset” because the applicant was still recording her.

Mrs Zaki then referred to a telephone conversation with the deceased which he said took place at 9:45pm on 17 April 2012. She said that the deceased rang, her other daughter Catherine picked up the phone, and that the deceased told her, “I want to speak to mum, quick”. Mrs Zaki said that she spoke to the deceased, who was “very upset”. She said that the deceased told her that her husband was “very upset” with her and that she thought that he “would kill her”. The deceased told her that her husband was in the bedroom near the bathroom at the time of the conversation. She said that the deceased told her that she was “afraid and scared” and wanted her mother to call the applicant and talk to him. Mrs Zaki said that she responded “Rubbish, go to your bedroom. He can’t do that”, but she said that the deceased kept insisting that her mother talk to the applicant on the phone. Mrs Zaki said that she told the deceased that she would ring the applicant but that she did not do so.

Mrs Zaki said that she was also told by the deceased that “she was getting money the next day from Centrelink and wanted to buy tickets to come back to her house in Melbourne” because she had “had enough” and was “very scared”.

Mrs Zaki was cross-examined on a statement that she had made on 20 May 2012. It was suggested to her that she was told that, if the applicant, the deceased and their family moved to Australia, she knew that it was “on the condition” that they would live in Sydney. She agreed that she thought that this condition was imposed by the applicant. She also agreed that, during the time that the applicant stayed with her in Melbourne, she had problems with him, mainly about dealing with the children. She said that the applicant would tell her to “mind your own business”.

It was suggested to Mrs Zaki in cross-examination that she spoke to the deceased on a number of occasions on 17 April 2012. She said the conversation concerning the food processor took place around 11:00am that day. She said that all she could remember of that conversation was that the deceased told her that the applicant “cut the cord of this food processor because she thinks he was recording her again”.

Mrs Zaki was shown a document entitled “Calls to and from the deceased’s mobile phone on 7 April 2012”, which showed a telephone call between her and the deceased at 10:06am which lasted for 6 minutes and 10 seconds and a call at 10:57am lasting 10 minutes and 58 seconds. She said that she could only recall the one conversation.

Mrs Zaki was asked about paragraph 31 of her statement of 20 May 2012. It was put to her that she made a statement at a time when the matters were “fresh” in her memory. However, she said that, after the shock that she had with her daughter, she did not think her memory was “accurate”.

Mrs Zaki was then asked about the fact that, in her statement of 20 May 2012, she said “Mariam called my phone”. It was put to her that she did not say that it could have been her phone or her daughter Catherine’s phone. She said that she remembered that it was her phone.

In cross-examination, Mrs Zaki was referred to her evidence-in-chief that the deceased had told her that the applicant said “I’m going to kill you” to her. She was then referred to her statement that she made on 1 May 2012, in which she said the following at paragraph 32:

It was put to her that, in that statement, she did not say that the deceased had told her that the applicant had said to her that he was going to kill her. After some inconclusive cross-examination, it was put to her that the first time she said that the deceased had told her that the applicant had said that he was going to kill her was shortly before she gave evidence. She responded that she had said that in her statement of 1 May 2012. It was ultimately put to her that the entire conversation with the deceased at about 9:45pmdid not happen and she denied this.

Dr Yehia stated that she was a general practitioner who looked after the deceased, the applicant and their three children. Referring to her records, she said that, in December 2011, she saw the applicant and the deceased and the applicant mentioned that the deceased was “nervous or edgy” around him, but was “fine with other people”. She said that she had a subsequent consultation with the deceased alone on 24 January 2012 and that the deceased told her that she was “still in a depressed mood”, so Dr Yehia said that she referred her to a psychologist. She said the deceased mentioned to her that the applicant was “recording her conversation at home”.

Dr Yehia said that she spoke to the applicant about this and the applicant had told her that he had been recording the deceased’s conversations, but that he did not give any reason why he did it.

Ms Aldabra gave evidence that she was a “scientific officer” with the New South Wales Police Force. She conducted what she described as “textile damage analysis” in relation to the two blankets. She was also provided with a knife for this purpose. There was no issue that it was the knife that was used in the stabbing.

Ms Aldabra said that the purpose of the examination was to determine “the nature of the damage in the blankets and if the knife created the damage”. She gave evidence that her examination of the pink and red blanket revealed four holes ranging in length from 10 mm to 47 mm, varying in shape from “an L-shape, curved, to relatively straight”.

Ms Aldabra said her examination of the pink and fawn blanket revealed 17 holes ranging in length from 12 mm to 32 mm, varying in shape from “a broad V or an L-shaped slightly curved, curved, relatively straight to straight”. She said the knife she was given was capable of putting holes “consistent with” the holes she saw in the two blankets. She stated that, in her opinion, the damage on the blankets was caused by the knife which she had been provided or by “a similar sharp implement”.

Ms Kiprovich gave evidence that she was a “scientific officer” with the New South Wales Forensic and Analytical Science Service. She gave evidence that she was provided with the pink and red blanket and the pink and fawn blanket and examined them for the purpose of comparing fibres recovered from a blade of a knife to fibres on those two blankets.

She gave evidence concerning her analysis and expressed the view that the results strongly supported the proposition that the “pink acrylic fibres recovered from the knife blade could have come from the [pink and red blanket]”, although she noted blankets are “mass produced”.

Mr Cochrane gave evidence that he was a “senior forensic biologist” at the Division of Analytical Laboratories in Lidcombe. He gave evidence that the knife which he had been given was tested in 11 different areas.

Mr Cochrane said that the first test was on a “logo/label on the handle”. He said that there was a “positive screening test for blood” and that the DNA recovered was a mixture that appeared to originate from two individuals and that the applicant and the deceased “cannot be excluded as contributors”. He gave similar evidence in respect of a sample taken from the “bottom of the handle guard” of the knife.

Mr Cochrane also gave evidence of a sample taken from the “right side of the blade at bottom of the handle/blade edge”. He said that the only DNA that was recovered was the DNA that had the same profile as the deceased. He said that the same result came from a sample on the “right side of the blade at the top of the handle/blade edge”.

Mr Cochrane also said that a swab taken from the “right side of the blade” gave a “positive screening test for blood”, and that the DNA recovered had the same profile as the deceased. A similar result was obtained from a swab taken on the “left side of the blade”.

In relation to the “end of the handle on the knife”, Mr Cochrane said that the DNA recovered was a mixture that originated from at least two individuals. He said that the major component had the same profile as the applicant and that the minor component had the same profile as the deceased. The same result was obtained from a swab on the “right side of the handle”.

Detective Clarke said she was the “officer-in-charge” of the case. She gave evidence that she was the person who took the statement of 1 May 2012 from Mrs Zaki. In cross-examination, she acknowledged that the statement did not say that the deceased told Mrs Zaki that the applicant had said to the deceased “I will kill you”. She said that she did not recall Mrs Zaki using those words but rather that the deceased had said “He is going to kill me”.

Detective Clarke conducted an ERISP with the applicant on 18 April 2012. The ERISP and a transcript were tendered by the Crown at the trial. The copy of the transcript tendered at the trial was an amended copy of an earlier transcript with revised translations of some of the applicant’s responses. These revisions were set out in bold and were underlined.

I have set out the questions and answers from the transcript which are relevant to the present proceedings below:

Immediately prior to the applicant giving evidence, defence counsel made the following statement to the jury:

The applicant gave the following evidence through an interpreter.

The applicant said he moved to Australia because he “wanted to come and have a better life”. He said that the deceased wanted to come because her family was here.

The applicant said that, before he moved to Australia, he intended to live in Melbourne. He said that, when he, the deceased and their children arrived in Melbourne, they lived with Mrs Hannan Zaki, but he said that they moved to the deceased’s sister’s house after three weeks because there were “problems” between the deceased and her brother and because Mrs Zaki “was not dealing with me in a good way from the beginning”. He said that Mrs Zaki was “always treating me in a provocative way” and, while he declined to go into the details, he said that, when he was talking to his children, Mrs Zaki “would like the thing to happen the way she wants it to happen without asking me”.

The applicant said that, when he came to Sydney, he stayed with a friend initially but then rented a house because he was “thinking to bring my family and my children to live with me”. He said that it took three months for the deceased to come to Sydney and that he never returned to Melbourne to see the deceased’s family, although he said that the deceased went back on many occasions.

The applicant was shown a picture of his son, Salih, and had his attention drawn to what appeared to be a mark on his chin, which the applicant indicated was a “hit from his mother” which had been stitched. The applicant said that he raised this with the deceased and that she said “Sorry, I was just annoyed” and he said “Okay”. The applicant said that he took his son to the doctor to be treated. He said that the deceased apologised and admitted that she had done it. He said that he did not report the matter to the police.

The applicant was then asked some questions concerning the unit. He indicated that he and his wife slept in the main bedroom while the children slept in the second bedroom.

The applicant was then asked about recording the deceased’s conversations. He admitted that he was recording his wife, but he said that he was not recording “because of her”, but “because of the children”. He said that the children complained about the deceased and said that she hit them and locked them in the room. He said that the deceased denied doing this and said that the children were lying.

The applicant admitted that he removed the lock from the outside door of the second bedroom so that a person could not find a way to lock it from the outside, although he said that a person who was inside would still have control over whether they wanted to go in or out. He said that he did it because he found that the children were locked inside when the deceased was not home.

The applicant also acknowledged that he put an object on the frame of the bedroom door so that it “would not be able to be locked by someone”. He said that he did it because, on the occasion when he found the children locked inside the room when the deceased was not home, the children had been playing with fire and the place inside got burnt. He said that he installed the object in addition to removing the lock because his son was scared.

The applicant was asked what he meant by “fire”, and he said that the children “were locked inside the room and they had the lighter on and they were playing with that lighter and they burnt the edge of the bed and it went on fire inside the room”. He said that it was after this incident that he removed the lock and installed the object. He was then shown a photograph of a mattress with circles on it and his attention was directed to what appeared to be a hole in the mattress, exposing the springs inside. He explained that this damage occurred while the children were inside the room playing with the lighter. He said that the deceased was not at home when he found the children and that she had locked them inside. He said that he had come from work and heard the children screaming and found them inside the room.

The applicant said that he told the deceased why he removed the lock and that she apologised. He said that, after a while, the deceased said that “maybe she just remembered she went to the groceries to buy some things”. The applicant said that he told her not to lock the children in again.

The applicant said that most of the problems between him and the deceased were “because of the treatment of the children”. He said that sometimes he raised his voice because his son was “always” complaining about the deceased. He said that the deceased raised her voice also. The applicant said that, when there were problems between him and the deceased, he would go to a hotel. He said that he went to a hotel which he described as the “Formula 1” hotel “three or four times … sometimes three days, sometimes two days” and, on one occasion, he stayed for one week.

On 27 April 2012, the applicant said that he was working at a business called “Aussie Skips”. He referred to timesheets which showed him arriving at 7:13am, leaving for lunch at 1:51pm, returning to work at 2:20pm, and leaving the premises at 4:34pm. He described his work as “categorising” and “classifying” the contents of rubbish bins.

The applicant was then asked about what occurred at the police station at about midnight on the night of 17 April 2012. He said that he arrived at the station at midnight and that he had not slept or eaten between the time he finished work and the time that he arrived at the police station. He said that he did not sleep between the time he arrived at the police station and the time he was taken to the hospital. He was referred to the fact that the ERISP commenced at 4:00am and he said that he had not slept between the time he went to the hospital and the time that the ERISP started. He was referred to his answer at Q462 in the ERISP, which I have extracted at [107] above, and said that, in saying that his brain was now “more or less closed up”, he was intending to convey that he was “very exhausted”. He was also referred to his answer to Q456, and he said that he said he was “confused” because he was “exhausted”.

The applicant said that, at the commencement of the ERISP at 4:00am, he was “very exhausted”. He said that he had been working all the day and that he had not eaten anything. He said that he did not ask whether he could sleep at the police station and that nobody asked him if he wanted to rest before being interviewed.

The applicant was asked whether he recalled, in the days leading up to the death of the deceased, but not including 17 April 2012, whether he had any arguments with the deceased over the telephone. He said he did not. He said that he and the deceased were talking about moving from Sydney, going to Perth or discussing something about the children in the days prior to 17 April 2012.

He was then asked about a number of phone calls on 17 April 2012 which took place starting at 10:30am. He said that he could not recall what the conversations was about entirely, but he said that they were about “many things”, including the children, the arrangements they were making for their plans to move, and a call about the mixer, which appears to be a reference to the “food processor” described by the witnesses in the Crown case and which I have noted at [83] above. He said that he could not recall what time the call about the mixer took place.

The applicant said that, in the telephone conversation concerning the mixer, the deceased had said “You cut the wire of the mixer” to him, but then stated that, before that, she had said to him “The wire of the mixer is broken”. He said that she accused him of doing it and he said to her “Why should I do that?” and said that it was “not a big deal” and that they could get another one.

He was referred to his answer to Q107 in the ERISP, and it was pointed out to him that he said there that he had told the deceased that Salih was the one who cut the wire. He responded, “Maybe he was the one, yes”. He then said that “I don’t think he is the one who cut the wire”. He said that he told the deceased that Salih cut the wire because he had seen Salih with the deceased when she “had words with him”. He said that Salih “tries to damage everything for her like I saw him damaging the computer, throwing anything”.

The applicant said that, when he got home on the evening of 17 April 2012, the children were complaining about the deceased. He said that they said, “She is hitting us” and told him to ask her to go to work while he stayed with the children at home. He said that the children were crying.

The applicant said that he did not speak to the deceased. He said that he put his bag down on the veranda “or where I don’t know, I don’t know”. He said he then went to have a shower and went to his bedroom. He said that he did not speak to the deceased about what he had just been told by the children because he was “coming back tired, and exhausted”. He remembered that, after he got out of the shower, he was wearing “jeans, pants, and something like a soccer clothing, something like that”.

The applicant said that the room that he went to was the room in which he and the deceased slept. He said that he heard the deceased hitting the children outside and said “I heard the voice of her hit. I heard them crying”. He said that he did not get up because he was “exhausted”.

Later, the applicant was asked several aspects about his evidence concerning the bedroom door. He said that the door did not have a lock which you could operate with a key, and that when he earlier said that he removed the “lock”, he was removing the door handle. He said that the only doors that would lock using a key were the main entry door and the outside hall door. He said that he removed the handle from the outside of the bedroom door and installed the object on the frame of the door because, when the door was closing, it was very heavy and, without the handle, the deceased would not have had “the ability to push it strongly to the end”.

The applicant was then again referred to what was happening on the evening of 17 April 2012. The applicant said that he did not leave his bedroom when he heard the children outside, but that his daughter came in crying and said to him “Mum is hitting me”. He said that he could also hear Salih’s voice crying, and that “all of them” then came in, referring to all three children. The applicant said that, while he was hugging them, the deceased came in and hit them again “with a thong or something she was wearing on her feet”. He said that the deceased kicked Salih, and he fell to the ground, and that she then said “Your father is not going to protect you”. He said he “kept quiet and just left her”. The applicant said that he did not want “to talk and to heat the situation up”.

The applicant said that he then told the children to go to the bedroom. The deceased stayed in the room and “started again talking about the wire of the mixer”. He said that the argument continued and that the deceased said to him “You have relations with another one, you have a girlfriend”. He said that he responded “If I have a girlfriend, why have I got married to you?”.

The applicant said that the deceased was swearing at him and brought up other issues. He said that she brought up “the history about his family”. He said that he did not remember the words she was using when she was swearing at him, but he said that he remembered that she was saying “many things” He said that he was “not even concentrating on what she was saying”. He said that the deceased said that his family were “no good”. He said that she was talking about his sister, who was in Egypt.

The applicant was asked whether he responded and he said “When I’m upset it is my habit, my nature, I don’t like to talk about anything because I don’t want things to escalate. I keep quiet.” He was referred to the evidence he had given in his ERISP that the deceased kept “coming and going” and he said “She goes out, she comes in swearing, she goes out, she comes in swearing, and so forth all the day until night time. At the end I took the pillow and I put it on my head.” He said that he did that because he did not want to hear her swearing.

The applicant said that he fell asleep at about 11:00pm and then stated that “I heard a voice or something, maybe like a hit, but I didn’t know what was it. I don’t remember what was it.” He said that, after he heard the noise, he saw the deceased come in to the bedroom carrying a knife in her hand. He said that, at that time, he was lying down on the bed. He was referred to a photograph, and the applicant indicated on the photograph that he was between two blankets on the side of the bed closest to the door. He said that, when he saw his wife holding the knife, he did not know what she wanted to do. He then stated “I was saying what she wants to do, she wants to kill, because previously she said to me that I want to kill myself and I took the knife off her.” He said that, in saying that, the previous incident to which he was referring occurred a “few months” before 17 April 2012.

Returning to 17 April 2012, the applicant said that the deceased “took the knife” and he said that she “wanted to hit him”. He said that he knew that he wanted to hit him because “she had already hit me on my arm. She wanted to hit me and I lifted up my arm the hit went into the arm”. He said that, when the deceased hit him first, he lifted his left arm across towards his right shoulder, and then put his two hands on the blankets.

He said that, after this occurred, the deceased said to him “You are not a man”. He also said that, after the deceased hit him, she was swearing at him.

The applicant said that he was holding the blankets with two hands. He said that he remembered that he got “two of them together”. He said that he did that to cover himself so that the deceased did not hit him.

The applicant said that, after he pulled the two blankets up over himself, the deceased said to him “You are not a man” and “They are not your children, they are the children of another man. Go and look at yourself in the mirror”. He said that she also said “I’m going to end from you, I’m going to kill you.”

The applicant was asked what the deceased was doing with the knife, and he responded “Hitting, hitting, hitting continuously, she didn’t stop. And I was covering myself. And kept swearing, swearing, swearing. I was becoming exhausted, my brain was blocked. After that I don’t know what has happened, I just found her on the floor.” He clarified that she was hitting the two blankets with the knife. The applicant said that he could not remember how many times she hit the blankets with a knife. He said that it was at that stage that “I lost my control”. He said that he could not remember how he got hold of the knife. He said that he remembered putting a blanket on the deceased and lifting her from the floor.

The applicant said that the deceased said to him “I am shivering and cold.” He said that he covered her with a blanket. He said that the deceased then said that she wanted to sleep on the floor, so he put her down on the floor and covered her with a blanket. He said that he then called the police and an ambulance.

The applicant then said that he went to the children’s bedroom because “I thought maybe she had hit the children as well”. He said that he thought this because he said that “her treatment of the children is not good”. The applicant said that he put the knife “in the thing” and dressed the children. He said that the “thing” was the top of the cupboard.

It was pointed out to the applicant that he had a laceration and abrasion on one of his fingers. He said that he did not remember what had happened because the deceased “has got nails as well”.

The applicant was then referred to a conversation that he had with a doctor at a hospital, which was presumably the conversation with Dr Sacca which I have noted at [38] above. The applicant said that the interpreter for that conversation asked him whether the deceased had committed suicide while the interpreter was laughing. The applicant said that he “did not like the way he was talking and looking at me”. He said that he told the interpreter “I don’t know if she killed herself or not” because he did not want “to go further with him”. He denied that he said “My wife was holding the knife trying to stab herself. When I went over I tried to grab the knife and it cut my arm”.

The applicant denied that he wanted to hurt or kill the deceased.

From the outset of his cross-examination, the applicant denied that the problems that he had with the deceased led to what occurred. He was asked whether, before the ERISP, he had told anyone about the deceased being abusive towards the children, and he said that he did not recall whether he had. He also said that it did not upset him so much that he wanted to do something about it.

The applicant was asked in cross-examination about the time that he lived with the deceased and his children in Egypt after leaving Sudan, but before coming to Australia. He was asked whether there was an occasion in Egypt when Salih “fell on a nail which pierced the lower part of his chin”, which he denied. He stated that Salih was not hit by a nail on his chin, but rather, that the deceased hit him.

The applicant stated in cross-examination that the arguments that he had with the deceased before he came to Australia were “of a minor type”. However, he said that his wife was “harsh” to his children in Sudan.

The applicant was asked whether the deceased had mistreated his children while they were in Melbourne, and he said that they sometimes had “minor problems”, but that he usually did not like to “expose my problems to others”. He said that the deceased hit the children while they were staying at Mrs Zaki’s house, but that, since it was only a very short period of three weeks, it only happened once. He was asked what happened, and he said that, if Salih did not “come to her, instead of telling him in a good way or in a proper way, she pushes him”. He said that this was the only thing which occurred in Melbourne, but he reiterated that it was “a short period of time”.

The applicant agreed that, after the deceased moved to the unit at Alice Street, Wiley Park, she started “to mistreat the children more”. He was then asked again about the injury to Salih’s chin. He said that it had to be stitched, but then said that it happened when the applicant, the deceased and their children were living in Egypt.

The applicant also acknowledged that he told the police that, as well as hitting and mistreating the children, the deceased did not provide them with any food. He said that this happened in Wiley Park around 2010. He was also reminded that he told the police in the ERISP that the deceased was causing him problems with his work and that he had quit his job. He also said that Salih used to tell him “Please stay with us, don’t go to work, don’t leave us”. However, the applicant said that he could not remember blaming the deceased for being the reason that he quit his job. As I have noted at [121] above, the applicant was in fact working on the day of the killing.

The applicant agreed that he sent the deceased to Melbourne to her mother in October 2011. He said that she was “upset” and that they had “had a sort of disagreement”. She said that she did not want to live with him and that she wanted to go. The applicant said that he told her “It’s up to you.” He agreed that he said that he divorced her. He said that the disagreement was because of her treatment of the children. He was asked whether he was concerned “about [the deceased] taking the children away from [him] if she was mistreating them”, and he said “Yes, of course”. He said that he told Mrs Zaki his concern that the deceased was mistreating the children. He said that he could not remember exactly when he did that. Mrs Zaki gave no evidence of such a conversation.

The applicant agreed that, before the deceased went to Melbourne, he had started to record her. He said that he recorded her “maybe five, six times” and that he told her mother. He said that he would listen to the recordings “when a problem happens”. He said that, sometimes he would listen to the recordings “when I am riding my bike from home to work”, but the recordings were “for a long period”. He said that he did not listen to the conversations between the deceased and her mother. He said that he just listened “if there is a problem with the children when they are locked in the room”. It was put to him that this did not happen and he affirmed that it did. He also denied recording the deceased for the purpose of recording her conversations.

The applicant said that the deceased was “upset” when he told her that he was recording her. He said that she was upset because she would say that “my Salih is the one who was lying”. He said that the deceased was “hitting [Salih] and locking him” and telling him “what to say” to the applicant. He also said that she told Salih that he was a liar. The applicant was asked whether he was recording his wife because he “wanted to check up on her to see what she was doing”, and he said that it was only “because of the children, not because of her”.

The applicant was then asked whether he was recording the deceased so that he could hear “what conversations she was having during the day” and he responded “I am her father, when my young son comes to me and tell me and says ’Please don’t go to work’, I of course would be worried why he is saying this. This is his mother. The first school, it is home”.

The applicant agreed that Mrs Zaki “sometimes” called him if he was having arguments with the deceased. He said that he told Mrs Zaki that “[the deceased’s] emotions are not good with the children” and that “she has got something to deal with her emotional state”. He agreed that he told Mrs Zaki that these arguments were the deceased’s fault. However, he disagreed that he said “it is her fault because she doesn’t listen to what I tell her”, and said that it was about “treating the children, not about me”.

The applicant was then asked whether he told Mrs Zaki that, whenever he came home, he wanted the children to be “clean, fed and ready for bed” and that the deceased “wasn’t doing that every time”. In response, he said that he “didn’t speak” to Mrs Zaki. He was then asked again about whether he spoke to Mrs Zaki when she rang up to talk about the problems he was having with the deceased, and he said that he told her “I’m going to give you the recording, you listen to it and you will judge who is wrong, me or her. She is your daughter. Those are my children.” He said that Mrs Zaki said that she did not want to listen to the recording and he should break the recording device.

The applicant agreed that, sometime at the end of 2011, he went with the deceased to talk to Dr Yehia and that he told Dr Yehia that the deceased was “nervous or edgy” around him but that she was “fine with other people”. He agreed that he did not say anything to Dr Yehia about the deceased mistreating the children, and he said that this was because he thought it was “something private” and because he wanted to talk about it with a psychiatrist because “this is not his specialist”, referring to Dr Yehia. He said that he did not “like to reflect a picture about me and about the children, it is a bit sensitive”. He said that, if Dr Yehia had been a specialist, he would have spoken to her about the mistreatment of the children.

In 2012, the applicant agreed that “things were getting worse as far as [the deceased] mistreating the children” was concerned. He repeated that this was because the children were locked in a room or kept in a room while she was out of the house. He agreed that it was “very worrying” that they were “playing with fire while there were no adults in the unit” and that it was fortunate that he came home when he could save them from the room and the fire. It was suggested to him that, in these circumstances, he must have “decided after this event to complain to someone about what [the deceased] was doing”. He responded by saying that, before this incident had happened, he had spoken to her mother, who had said, “I don’t want to listen to the recording”. He agreed that he “got on well” with the deceased’s sister, Dimyana, but that he did not tell her about the deceased mistreating the children.

The applicant was asked and agreed that his evidence was that, at the beginning of 2012, he removed the handle from the children’s bedroom door and attached a metal plate to the door frame to stop the door from closing. He denied that this happened “not too many days” before 17 April 2012 and also that the mattress was burnt on an occasion when he and the deceased were both in the unit. He also denied that the deceased used to go into the bedroom with the children and close the door to get away from him when they argued. He also denied that he removed the handle from the door and attached the metal plate to the door frame so that she could not do that.

The applicant denied that, by 16 April 2012, his relationship with the deceased had become “very tense or strained”. He said that, when he had one month’s holiday from work, “we sat together, we sort out all our problems, we came to agreement”. He was then asked about his answers to questions 153 and 236 in the ERISP, and he agreed that he was saying that he and the deceased had “reached some agreement” that “she would change her ways”. However, he said that he did not remember the timing because “when I had this interview, first of all I was shocked, I was exhausted I was tired.

The applicant also agreed that what he was saying to the deceased was that “her way of doing things is not good” and that she should change the way she treated the children and also the way that she behaved towards him. He agreed with the proposition that he and the deceased had “reached agreement that she wouldn’t argue with [him] or cause problems with [him]”.

The applicant agreed that, on 17 April 2012, he was at work and that, when he told the police in the ERISP that he was not, it was “untrue”. He agreed that, when he was at work the deceased rang him and that he spoke to her on the phone both in the morning and the afternoon. He agreed that, at some time during those calls, the deceased was complaining about the cut to the wire of the mixer. He said that she only mentioned it once. He was reminded of his earlier evidence in which he said that the problem began on the phone when the deceased said that he had cut the wire, and he agreed with that. However, he denied that he was “unhappy” when he left work, and said that, if he had been unhappy, then he would have gone “straight away home” after her call.

The applicant agreed that he did not speak to the deceased at all when he arrived home, “despite the children telling [him] that they had been hit”. He agreed that the deceased was “very upset” when he came home because he was continuing to record her. He agreed that she was “so upset” that she said that she “wanted take the children and go”. He said that this happened after he had had a shower.

The applicant said that he was “upset” but that he told her “okay, go”. It was put to him that “this was despite the fact that [the deceased] was mistreating [his] children and abusing them” and he responded “What can I do for her? She wanted that”. It was put to him that he was “very angry” with her when she said that she was going to leave and take the children, and he responded “I was upset, but I was not upset to the extent that make me – I was upset”. He denied that he said he “would kill her”, and said that he was “upset; but not to the extent to lose control, or take an action like that”.

The applicant was referred to his statement during the ERISP that there was an incident where the deceased “produced a knife a month or so before [he] killed her”. He agreed that he recalled telling the police that the deceased “produced a knife a month ago and that [he] took it off her”. He said that he could not remember the “full details”. He said that “it was a problem as well because of the children and I was talking to [the deceased] and she started screaming, shouting and then she took the knife and she was in the kitchen”. He said that he was sitting in the lounge room and that, at that moment, she was on the phone with her sister and that her sister “heard all of this. The applicant said that, after the deceased was on the phone, he took his bag, left and went to a hotel. He said that, before he left to go to the hotel, and after she had been on the phone to her sister, the deceased had come at him with a knife. He said that she took the knife from the kitchen knives and “wanted to come and hit me with it”. He said that the deceased said “I’m going to hit you”, and that he took the knife off her. He said that he could not remember exactly what happened but asserted that the incident did happen and that the deceased’s sister heard it.

The applicant was referred to his answer to question 236 in the ERISP, and it was put to him that he was saying in that answer that he was “upset and angry” because the deceased was “not doing what you had agreed with her she would do”. He responded “In the end I am a human. Every human could become upset, but every human, again after calming, would be back to normal. I am a human”.

The applicant agreed that, between 9:00pm and 11:00pm, the deceased spoke to her sister. He said that he heard her talking over the phone. He agreed that, after she got off the phone, the deceased told him that “she was leaving and she was going to go to Melbourne and take the children the following day”. He was asked again if he was angry about that, and he said that “In the end this is her decision”. He agreed that the deceased said that she was taking the children as well, and when asked about whether he was “concerned for the children”, he repeated that it was “her decision”, and said that, at the time, “I thought it was a period she was upset. Maybe after a while, I give her some space and after a while she will revise that decision”.

The applicant was reminded of his evidence that, at some time before 11:00pm, he put a pillow over his head and “just wanted to go to sleep”. He was reminded that he had also said that he did not sleep at all that night. He responded that “It was just, like, a quick nap because I was tired coming from work”.

The applicant repeated his evidence that he was lying in bed in the bedroom where the deceased was killed. He said that he was “covered halfway” under the blankets with his arm outside the blankets and that he was wearing “jeans/pants and something like soccer clothes”. He said that the deceased was wearing “something like a blue pyjama”, pointing to above the knee. He said that he did not remember if she was wearing underpants.

The applicant agreed that the knife he said that the deceased had in her hand was the one which he had obtained from Aussie Skips. He said that he and the deceased were using it because “there was an Occasion of Eid and we wanted a knife to cut the meat”. He agreed that it did not have the appearance of a kitchen knife. Initially, he said that he remembered that, as at 17 April 2012, he and the deceased did not have many knives.

The applicant said that he used the knife about “three or four months before” to cut meat. However, he agreed that the knife had more “the appearance of a fishing knife”. It was pointed out to him that there was a 25 cm carving knife in the kitchen on 17 April 2012 and he responded that there were “Many other knives. I don’t know how many”. He was asked when Eid was celebrated, and he said that he did not remember, but that it happens every year.

The applicant was then asked if the deceased said anything to him before she hit him. He responded “No, but I didn’t know what she wanted to do; as if I was dreaming”. He said that she was “very close” to him when he first saw her.

The applicant said that he was “shocked because I thought the hit came into my body”. He agreed that he was right-handed, and that he lifted his left arm and that the deceased cut him on the forearm at that time. He said that he remembered that the sleeves of his clothes were rolled up, and that was why there was no damage to the left sleeve on the jacket that he was wearing.

The applicant was reminded that he had said that he was “holding the blankets with two hands” and that he had “gathered the two of them together”. He agreed that, in the ERISP, he did not say anything about the blankets being used to protect himself and the he only told them that the blankets were “halfway up [his] body when [he] was in bed”. He also agreed that the only thing he said to the police about using the blankets was that he “possibly covered [the deceased] with the blanket”, but he said that, during the ERISP, he was “very exhausted, my brain was completely blocked, I was under shock”. He said that “I am a human being, even the train has a station to stop at”.

It was also put to him that, in the ERISP, he did not say that he remembered that the blankets had holes in them. He responded “I was not remembering anything. I was not remembering the incident. I was just remembering a few things”.

It was suggested to the applicant that, “apart from the cut to [his] left forearm, [he] had no other cuts to [his] body” as a result of what the deceased did. He initially responded by saying that he did not know, and he was then asked whether he knew that he did not have any other cuts to his body when the police spoke to him. In answer to that question, he responded “Yes, but because this one was very big it was very obvious”. He said that he could not remember whether he had any other cuts to his body.

The applicant agreed that he was seen by a doctor the next morning, and it was put to him that he had “no other injuries apart from the cut to [his] arm”. He responded “Yes” through the interpreter. The applicant was then reminded of his evidence that, “at some stage [he] lost control” and that he said that the deceased was “hitting continuously”. He said that he could not recall whether he had any cuts to his hands. He was then asked whether he remembered that “the doctor that looked at [him] asked [him] if [he] had any other cuts” and that he “didn’t tell her that [he] had any cuts to your hands”. The applicant responded “No, yes”.

It was put to the applicant that the deceased was “struggling with [him] when [he] had the knife”, and he responded that “she was holding the knife”, and that “the knife was in her right hand”. It was put to him that he had heard the evidence that “one blanket had 17 holes in it and the other one had four holes in it”, and it was suggested to him that this was why he had “made up this story about trying to defend [himself] using the blankets”. He denied this. He was also asked whether he got the cut to his left forearm when he was stabbing the deceased and he denied this as well.

He agreed that, after the incident, he put the knife in the cupboard and he said that he did so because “I wanted to make sure [the deceased] didn’t hit the children”. However, he agreed that he told the police that he put the knife in the cupboard so that the children would not find it. It was also put to him he went to the bathroom to wash because he was “covered in [the deceased’s] blood” and he denied this.

Towards the conclusion of his cross-examination, the applicant gave the following evidence:

Ms Roebuck was a “forensic biologist” called by the defence. She said that, between 2009 and 2012, she was employed by the New South Wales Police Force Forensic Services Group, and that her role there including “undertaking examinations of exhibits submitted by the police for the presence of biological material”, namely, “blood, semen, saliva and body fluids”. She said that her tasks also included “sampling for DNA submission and conducting a small amount of DNA analysis” within the facility itself. She said that she also attended court to provide expert evidence.

Ms Roebuck agreed that she examined the pink and red blanket and the pink and fawn blanket. She said that they were examined “for the presence of any damage so anything, any holes, tears, that kind of thing”. She was also asked to “assess whether the damage present could have been caused in the form of a stab cut” to the two blankets. She stated that both the blankets had “a number of areas of damage” and she concluded that “all of the areas that I identified were in fact stab cuts”. She said that, at the time she did the examination, she did not have available to her the notes of Ms Aldaba, although she did have them before compiling her report.

Ms Roebuck said that she concluded that there were “six areas of dark blood-like staining” on the pink and red blanket. She was referred to the statement in her report that “None of these areas – that is the six areas of dark blood-like staining – had a saturated appearance”. She said that, by using the term “saturated”, she was referring to “a stain that would have soaked into the fabric”. She said that, by contrast, the appearance of “the red brown stains” on the pink and red blanket were “on the surface of the fabric so they were much lighter and across the surface of the fibres, not soaked into the fabric itself”. She agreed that, in other words, it might be described as a “transfer”.

Ms Roebuck was referred to her statement in the report that “None of these areas, that is the areas of dark blood-like staining, had a saturated appearance that would be expected if the blanket had been in direct contact with a person who had freely bleeding injuries”. She explained that the expression “freely bleeding” refers to when “a cut is produced the blood will have to flow to the surface of the wound” and will then “flow from the wound across the skin”. She explained that this was “different to something like a paper cut when you just see a very small amount of blood”, whereas “freely bleeding would be from a much more substantial wound and really talks about flow of blood across the surface of the skin”.

Ms Roebuck was referred to the knife which was said to have been used in the attack and was asked whether, if a person have been stabbed with that type of knife, a freely bleeding injury would be expected. She responded that, if the wound did result from a “stab”, then she would agree, but she also said that “not every injury caused by that knife would necessarily freely bleed”. She said that it was the use of the word “stab” that indicated to her that a freely bleeding injury would be expected, although she said that this was “probably the limit of my expertise in that”.

Ms Roebuck was referred to her examination of the pink and fawn blanket and agreed that she concluded that “none of the stains had a saturated appearance that would be expected if the blanket has been in contact with a person who had freely bleeding injuries”.

Ms Roebuck was then asked about the scenarios put to Dr Van Vuuren in the first question of the evidence which I have extracted at [51] above. She was asked to not only assume that scenario, but also to assume that there was only one blanket, that the victim had a T-shirt on, and that there were “in excess of 16 stab wounds”. She gave the following answer:

She was then asked these questions and gave these answers:

In cross-examination, Ms Roebuck agreed that she did not spend “significant time” looking at bloodstaining at the time she examined the blankets. She said that it was sometime after that examination that she was asked to “provide an opinion about bloodstaining and the appearance of bloodstaining”. She agreed that she had made “limited notes” about the bloodstaining and that she did not do any testing.

Ms Roebuck agreed that she did not get any photographs of the injuries on the deceased’s body and was not provided with any of the crime scene photos, although she said she would have “reassessed my findings based on those photographs”. She also agreed that she did not have a report from any crime scene officer who attended the scene. Notwithstanding these limitations, she agreed that she felt “with some confidence” she could comment about the damage, including that the stain was a “transfer” stain and that you could not see any saturation.

Ms Roebuck also agreed that she was asked to comment on whether “the appearance [of the blanket] was consistent with having been used to cover a victim with 20 stab wounds”. She agreed that it would have been of assistance to have information about “where the victim was”, and that the only information she had was “one sentence relating to the number of stab wounds”.

Ms Roebuck was asked whether, in reaching an opinion as to “whether or not the appearance of the bloodstaining on the blanket was consistent with having been used to cover someone with stab wounds”, it would have assisted her to have a copy of the autopsy report to know more about the stab wounds. She agreed that this would have allowed her “to provide more interpretation of the staining”. She also agreed that she was not provided with the evidence of Dr Van Vuuren. She agreed that, as well as the autopsy report, Dr Van Vuuren’s evidence may have assisted her in her opinion about the staining on the blankets, and stated that it would have “enabled me to re-evaluate my findings and perhaps give a more expressive opinion on the staining”.

Ms Roebuck agreed that she was not a medical practitioner and it was put to her she did not have “any experience in what wounds were bleeding what way”, and she responded that she was not trained medically, but that she had seen “a significant number of homicide cases and the resulting wounds”, which she said is “very different” to a doctor’s expertise. However, she agreed that “a doctor is different in that the doctor can talk about where wounds would bleed internally more than they would bleed externally”.

Ms Roebuck agreed that the amount of blood on the blanket could vary with the amount of time that the blanket was in contact with a person who was stabbed, whether the person was struggling with the person doing the stabbing and making many different types of movements, as well as the positioning of the blanket relative to that person. However, she maintained that, for a case with “in the order of 16 freely bleeding injuries”, which she admitted was an assumption, she “would be expecting to see more bloodstaining than was apparent on those blankets”.

Ms Roebuck was asked these questions and gave these answers:

The sentencing judge concluded that the applicant killed the deceased by “stabbing her on a large number of occasions in a violent attack to her body”. He stated that the “stab wounds penetrated a number of [the deceased’s] principal organs and blood vessels including her heart, both her lungs, her kidneys and liver, and her inferior vena cava”. He said that she “died almost immediately”.

The sentencing judge directed himself as to the principles to be applied by a sentencing judge in making findings of fact. Quoting from R v Isaacs (1997) 41 NSWLR 374 at 377-8, he concluded that the “primary constraint” upon the sentencing judge is that “the view of the facts adopted by the judge for the purposes of sentencing must be consistent with the verdict of the jury”. He said that a “second constraint” was that “findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt”.

The sentencing judge stated at [18] that, “given the nature of the particular offence, that is, one associated with domestic violence by a man against a woman, the principles of general deterrence and institutional denunciation of the crime involved must play an important, although proportionate role”, referring to R v Greene [2001] NSWCCA 258 at [16]. He said that general deterrence is “a powerful factor in the protection of the public by making it clear that others who may be tempted to engage in similar conduct will meet with severe punishment”.

The sentencing judge concluded that, after the birth of the youngest child of the applicant and the deceased in Melbourne, the marital relationship deteriorated. He stated that there were a number of factors which aggravated the breakdown: first, the age difference between the couple; second, the fact that the deceased “had a more relaxed approach to socialising with the broader community” than the applicant; third, the applicant was “critical of the way in which his wife was bringing up their children”, and that he thought that her discipline was too harsh; and fourth, the applicant had, on a number of occasions, secretly recorded his wife “having conversations with her mother and sister on the telephone, and also interacting with their children”. He noted that the applicant saw nothing wrong with this conduct.

The sentencing judge noted that the marital relationship had deteriorated to such an extent that, in October 2011, the deceased and her three children moved to Melbourne and the deceased told her mother and sister that the applicant “had, in accordance with Muslim law, divorced her”. The sentencing judge noted that the separation lasted “a number of weeks” when the deceased, at the applicant’s request, returned to Sydney with her children.

The sentencing judge also referred to the fact that, on 17 April 2012, the deceased rang her husband to discuss the fact that their coffee grinder had been “rendered inoperative by the cutting of the electrical power cord”. He found that they had an argument in which she accused him of cutting the power cord, which he denied and for which he blamed Salih, their 7-year-old son. He stated that the applicant, who was “obviously angry”, told the deceased that “she should wait until he got home”.

The sentencing judge said that he found the applicant an “unimpressive witness”. His conclusion at [33] was in the following terms:

The sentencing judge said that, in those circumstances, to the extent that “objectively, or else independently, established facts contradict [the applicant’s] evidence”, he generally accepted them. However, he stated expressly that “any finding which is adverse to [the applicant] must be one of which I am persuaded beyond reasonable doubt”.

The sentencing judge rejected the applicant’s evidence that, during the course of 17 April 2012, the applicant and the deceased had discussed selling household items in advance of moving to Perth. He stated that, “had such a discussion taken place, I would have expected [the deceased] to have told her mother and sister”. He noted that, during the course of 17 April 2012, the deceased told both her sister and her mother that she and the applicant had argued over the telephone on that day and that the applicant was angry. He stated that he was satisfied that this had occurred.

The sentencing judge noted that the applicant left work at about 4:35pm, and stated that he was satisfied that he arrived home at about 6:00pm, and that the attack occurred at about 11:00pm.

The sentencing judge accepted that, once the applicant’s account of what occurred on the evening in question was rejected, there was little evidence about what happened and it was not correct for him to speculate. However, he stated that, by 8:30pm, he was satisfied that the children had been put to bed in their bedroom. He also stated that he was satisfied that, in the period between 6:00pm and 11:00pm, there were “a number of verbal arguments, about a variety of matters,” between the applicant and the deceased which caused the deceased to be “upset and scared of her husband”. He referred to the telephone conversations that the deceased had with her mother and sister, and stated that she was “clearly unhappy and distressed”.

The sentencing judge stated that he was satisfied that, during the evening, the applicant changed into her nightwear, consisting of “a pair of underpants and a long, blue T-shirt”. He said that he was satisfied that she went to bed and covered herself with the pink and red blanket. The sentencing judge stated that he was satisfied that “[the applicant], having returned home, had a shower and changed into clothes which were street clothes and not of a kind which he would wear to bed”.

The sentencing judge found that, at the time when the applicant attacked the deceased, he had “lost his self-control to such an extent that he must have formed an intention to kill [the deceased]”. He stated that this finding was consistent with the jury’s verdict. He stated that what caused the applicant to lose his self-control could not be “precisely determined”, but he said that he was “persuaded that it must have consisted of words said by his wife to him in the course of one of the verbal exchanges which occurred between them that evening”.

The sentencing judge said that the most likely account was that given by the applicant in his evidence when he said that the deceased said to him “words to the effect that he was not a man, the children were not his but were another man’s and he should take a look in the mirror, and further that these words were accompanied by swearing on her part”. He said that he accepted this because “it accords with the probabilities of what occurred and it provides the only rational explanation as to the cause of [the applicant’s] loss of control”.

The sentencing judge, in those circumstances, reached the following conclusion at [47]:

The sentencing judge referred to the evidence of Dr Van Vuuren, and stated that the “distribution of the wounds and their number, and in particular, the depth of a number of the wounds … delivered through a blanket, persuade me beyond reasonable doubt that [the applicant] mounted the brutal and vicious assault on the deceased whilst she was on or in the bed and cowering under one of the blankets”. He said that he was satisfied that she received “defensive wounds to her arms and hands as she attempted to cover her upper body during the assault”. He stated that he was satisfied that “the wounds to her thigh and her back” were “sustained during the assault as she curled up and tried to turn away from her husband while he attacked her”.

The sentencing judge found that, at some stage during the course of the assault, the applicant sustained a laceration to his left upper arm. He concluded that the assault “forced [the deceased] off the bed and onto the ground where she bled profusely”. He said that the applicant “left the room and left his wife to die” and then proceeded to “wash himself in the bathroom, leaving smears of his wife’s blood in the bathroom and on the floor”.

The sentencing judge stated that, in these circumstances, he was “satisfied beyond reasonable doubt that against a background of marital disharmony, on the evening in question, one or more arguments took place between” the applicant and the deceased, culminating in the deceased “questioning [the applicant’s] manhood and whether he had fathered their children”, coupled with verbal abuse “by swearing at him”. He concluded that, as a consequence of this assault the applicant “lost his self-control to such an extent that he brutally stabbed his wife to death”.

The sentencing judge concluded that the degree of provocation was “at the lower end of the scale, particularly given the maturity of [the applicant] as a 54-year-old man” at the time of the assault.

In those circumstances, the sentencing judge proceeded to sentence the applicant “upon the basis of a low level verbal provocation which was shortly thereafter followed by an excessively violent and brutal attack”. The sentencing judge stated that he was “well satisfied” that the applicant’s account of what occurred, which suggested that he killed his wife while acting in self-defence, was incorrect and that the applicant “must have known it to be incorrect when he gave the police that version”.

The sentencing judge referred to various matters required to be considered by s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). He stated that, although there were “a number of matters which may be regarded as aggravating factors within the meaning of the legislation”, he should not “have any additional regard to them, as they are included in the offence and do not merit separate consideration”.

The sentencing judge stated that there were a number of mitigating factors which he was required to take into account. The first was that the offence was not “part of a planned or organised criminal activity”. The second was that the applicant was “provoked by the victim”. In that context, he found that the applicant was provoked, and “hence has been found guilty of manslaughter and not murder” and that “no further weight ought be attributed to this consideration because it has already been taken into account”.

The sentencing judge stated that the third factor was that it was relevant to note that “the offender had no prior criminal convictions and was a person of good character”. He stated that he took this factor into account.

In relation to the applicant’s prospects of rehabilitation and the likelihood of reoffending, he referred to a report of a psychologist, Ms Delphine Bostock, who expressed the view that “providing he receives appropriate support, the likelihood of [the applicant] committing further offences in the future is minimal”. He accepted this opinion. He concluded that the applicant had “reasonable prospects of rehabilitation, largely because he did [not] have any empirically-based criminogenic needs associated with violence, and did not have any prior history of criminal conduct”.

The sentencing judge said that, “save for his early plea of guilty, I see no evidence of remorse whatsoever in the attitude of [the applicant] to what has occurred”. He said the “totality of the evidence reveals to me a man who feels unable to demonstrate any regret for what he did, and a man who felt wronged by his current predicament”. He stated the applicant “regards himself as the victim of what occurred and not a perpetrator”.

The sentencing judge stated that the applicant was “entitled to a full discount of 25 per cent” for his plea of guilty to manslaughter.

The sentencing judge said that, in his assessment, the level of criminality was “very serious”. He repeated his view that “the provocation was at a low level, and although the loss of self-control was almost immediate, the degree of violence inflicted on [the deceased] was excessive”. He stated that he regarded the case as “showing why the offence of manslaughter is properly regarded as a major crime”, and that the present case was “a most serious example” of it.

The sentencing judge referred to the applicant’s subjective circumstances, noting that he grew up in Sudan in “what seems to have been a loving family” and that, before marrying the deceased, he was married to his first wife and the divorce was “amicable”. He noted that, when the applicant came to Australia in 2008, he commenced employment and had “largely remained employed ever since”. He also noted that, “in all respects, prior to the events in question, he was a man of good character”.

The sentencing judge stated that, without regard to any discount for his plea of guilty, he determined that the appropriate sentence was one of a total of 16 years imprisonment. However, the sentence was reduced to 12 years imprisonment because of his guilty plea.

The sentencing judge also stated that he was not satisfied that he should make a finding of “special circumstances”, and that, accordingly, the non-parole period ought to be 9 years. He stated that he was “well satisfied that the nature and seriousness of the crime means that any lesser penalty … would be [in]adequate to punish him, and to denounce the crime”.

The applicant relied on the following grounds of appeal:

It is convenient to deal with these grounds together.

The applicant submitted that the sentencing judge reached his conclusion that the assault resulted from “verbal provocation” because, in his view, it accorded with the “probabilities” of what occurred and provided “the only rational explanation” of the loss of control, as I have noted at [211] above. The applicant submitted that the use of the term “probabilities” was indicative of “failure to make the critical finding beyond reasonable doubt” and that the use of the words “the only rational explanation” seemed to “reverse the onus of proof”. The applicant submitted that it was “not a matter of determining what was the most probable occurrence”, but a question of “whether the Crown had established beyond reasonable doubt on all the evidence that the applicant had not acted in self-defence and the deceased had not provoked the applicant by attacking him with a knife”.

Counsel for the applicant submitted the fact that the sentencing judge did not determine the matter beyond reasonable doubt was demonstrated by the fact that he did not take into account that “the DNA of the deceased was located on the handle of the knife” while the deceased’s blood was not. She submitted that the inference which should have been drawn was that “the deceased must have held the knife at some time”, which she submitted was evidence that the applicant was “provoked either by the deceased approaching him with the knife or having acted in self-defence as a result of the deceased approaching him with a knife”.

In his written submissions, the applicant submitted that the evidence as to “the distribution of the wounds, their number and or their depth, did not establish beyond reasonable doubt that the attack upon the deceased occurred whilst she was in the bed”. Counsel for the applicant submitted that “the expert evidence was not definitive as to where the deceased had been stabbed”.

It was also submitted by the applicant that the sentencing judge “failed to refer to the expert evidence of the lack of blood on the blanket at the incision points” and “the location on the right hand side of the blanket of the majority of the incision points”. Counsel for the applicant referred to the evidence of Dr Van Vuuren that it would be expected there would be blood on the blanket “at the point where the knife was removed from [it]”, but submitted that the incision marks on the blanket did not coincide with the staining marks Dr Van Vuuren would have expected had the deceased been stabbed through the blanket. She submitted that this was consistent with the applicant’s evidence that “the deceased stabbed the blanket before he disarmed her and stabbed her before she ended up wrapped in the blanket”.

Counsel for the applicant also referred to the fact that “the blood on the doona was located on the side of the doona” which he submitted was “not consistent with the applicant having stabbed the deceased as she lay in bed”, but rather, was consistent with “a struggle where the deceased came to rest on the floor leaning against the bed”. She submitted that this also was consistent with the evidence given by the applicant at the trial.

The applicant also submitted that the sentencing judge failed to have regard to what was described as the “defensive wound” to the applicant’s forearm. In his written submissions, the applicant complained that there was no reference to “the expert evidence that the laceration to the applicant’s forearm was consistent with a defensive wound from a knife attack”.

At the hearing, counsel for the applicant referred to statement in the Crown’s written submissions about the applicant’s injury that “it is far from clear that it was sustained as defensively”. She pointed to the fact that the question was whether there was “reasonable doubt that the injury was not sustained defensively”.

Counsel for the applicant submitted that the failure of the sentencing judge to take these matters into account demonstrated that the findings made by him were not made beyond reasonable doubt. She submitted that, in these circumstances, the finding that “the provocation was verbal” was in fact based “on probabilities”. She submitted that, if there was a doubt as to what occurred, that doubt should have gone in favour of the applicant.

The applicant submitted that, while there was no requirement for the offender to be sentenced on “the most favourable view of the facts that are consistent with the verdict”… any matters in which there is a reasonable doubt must be resolved in favour of the accused”. He submitted that it was not open to the sentencing judge to “make the critical finding beyond reasonable doubt given the acknowledged paucity of evidence as to what occurred immediately prior to the stabbing”.

The Crown pointed to the fact that manslaughter was left to the jury on the basis of either excessive self-defence or provocation. She pointed out the task of the sentencing judge was “to make his own findings of fact consistently with the verdict”. She pointed out that, in dealing with the facts, the sentencing judge reminded himself of the principles to be applied.

The Crown submitted that it was “important to understand the respective strength of the evidence in relation to self-defence and provocation”. She noted that, although the applicant gave evidence that the deceased attacked him with a knife while he was lying in bed and that the injury to his arm occurred while he was defending himself, his evidence as to his state of mind was “equivocal”. She referred to the evidence to which I have referred at [182] above and submitted that, even if the applicant’s response after the interpreter sought clarification was “ambiguous”, it did not evidence that he remained “scared” of the deceased so as to support a belief that “his subsequent conduct was necessary to defend himself”. She said that this evidence was “more consistent with other evidence that the applicant gave to the effect that he lost self-control after [the deceased] hit him with the knife (on his account), after which he could not recall what happened”.

The Crown referred to the findings of the sentencing judge to which I have referred at [207]-[211] above, in particular, the finding that she was “upset and scared”, and submitted this was supported by the evidence of Ms Yousif and her mother.

The Crown also submitted that the reference by the sentencing judge at [46], to which I have referred at [211] above, where he referred to his findings “according with the probabilities”, did not involve making a finding as to the level of provocation on the balance of probabilities rather than beyond reasonable doubt. She also submitted that his description of what occurred as being “the only rational explanation” did not involve a reversal of the onus of proof.

The Crown submitted there was sufficient evidence for the sentencing judge to be satisfied beyond reasonable doubt that the deceased was “cowering under at least one [of the blankets] at the time of the attack”. She referred to the fact that the evidence established that there was a series of incision marks in the blankets, with 6 in the pink and red blanket and 17 in the red and fawn blanket. In relation to the red and fawn blanket, she pointed out that there were “many areas of red staining on both sides of the blanket”, and on side A, there were “many areas of staining on the tips of the fibres of the blanket adjacent to holes 1 to 16”, a “larger area of staining on the lower left edge of the blanket” on that side and “an area of staining on the tips of the blanket fibres in the top left corner”. She also pointed to the evidence that, on side B, there were “numerous dark stains adjacent to holes 1 to 15”. She noted the evidence of Ms Aldaba that the holes were made by a knife or “similar sharp implement”, which I have set out at [95]-[97] above, and the evidence of Ms Kiprovich that the pink acrylic fibres collected from the knife could have come from the pink and red blanket, which I have set out at [98]-[99] above.

At the hearing, the Crown referred to the observation of Senior Constable Josephs to the effect there were not only “visible bloodstains on the frill” of the doona, but also that the stains extended around “the entire length of the doona cover from the top to the bottom at the left hand side”, which I have set out at [19] above.

The Crown said that the submission that the injury to the applicant’s arm was a defensive wound was not supported by the evidence. She submitted that the evidence of Dr Van Vuuren was that the lacerations on the applicant’s hands were not defensive wounds and that the wound on the arm was not “typical” of a defensive wound. In written submissions, she referred to the description of the wound given by Dr Sacca to which I have referred at [36] above and the evidence of Dr Van Vuuren to which I have referred at [54] above and submitted that, in light of that evidence, it was “well open” to the sentencing judge to conclude that the injuries the applicant sustained were not defensive in nature. She submitted that the sentencing judge’s findings to which I have referred at [213]-[214] above were consistent with that evidence.

So far as the submission by the applicant that the fact that “the two blankets were not saturated with [the deceased’s] blood” supported his contentions that he was holding the blankets and that she was stabbing him through them, the Crown referred to the two scenarios put to Dr Van Vuuren to which I have referred at [51]-[52] above, and in particular, her conclusion that the wounds caused more internal haemorrhaging than external haemorrhaging. She submitted that it was open to reject the evidence of Ms Roebuck due to the absence of information which underpinned her conclusion.

The Crown also submitted that the sentencing judge was entitled to reject the applicant’s evidence. She pointed to the fact that, during his interview with the police, he said “nothing about defending himself with the blankets”. She pointed to his answers to questions 78-84 in the ERISP, which she described as his “first account” of the events of the evening of 17 April 2012. She then referred to the different accounts given in his answers to questions 253–271 and his answers to questions 287–296. She pointed out that it was only in his answer to question 300 that he mentioned the blankets, and he said that “there was a blanket but I wasn’t completely covered”.

The Crown also pointed to the answers given by the applicant to questions 301, 302, 306, 336, 338 and 418–419, which she submitted showed that, during the ERISP, the applicant had given a number of accounts of what had happened, but none in the same form as the evidence he gave at trial as to “the blankets being held up by him while [the deceased] was stabbing through it”.

The Crown submitted that it was open to the sentencing judge to conclude that the fact that the DNA of the deceased and the applicant was found on the knife handle while no blood was found there was “not sufficient to support the alternative inference for which the applicant contended when viewed with all of the other evidence”. She noted that there was evidence from the applicant’s ERISP that the deceased handled the knife prior to the assault and that there was no evidence of the time at which the DNA came to be on the knife or the age of the DNA.

Ground 1 can be dealt with shortly. It is well-established that sentencing judges “may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27], quoting R v Storey [1998] 1 VR 359 at 369.

In R v Isaacs (1997) 41 NSWLR 374 at 378, a case in which there was a question about whether the jury had convicted the appellant of manslaughter resulting from provocation rather than a dangerous and unlawful act, it was pointed out that two primary constraints on a judge in finding facts for the purpose of sentencing were first, that “the view of the facts adopted by the judge for the purposes of sentencing must be consistent with the verdict of the jury” and second, that findings of fact, to the extent they are adverse to the accused, “must be arrived at beyond reasonable doubt”: see also Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [5], [9], [14]. It was not suggested in the present case that the sentencing judge should have inquired of the jury of the basis for the verdict: see Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37 at [33]-[45].

The sentencing judge, towards the commencement of his judgment, correctly directed himself as to the two constraints on a sentencing judge. I have referred to this direction at [199] above.

The applicant submitted that the sentencing judge departed from this standard for two principal reasons: in finding that the provocation must have consisted of words said by the deceased, the sentencing judge first said that “the most likely account” of the words used by the deceased was that given by the applicant, and second, that this “accords with the probabilities of what occurred” and provided “the only rational explanation” for the applicant’s loss of control, as I have set out at [211] above.

I do not think the sentencing judge erred in his approach to the correct standard of proof in that paragraph. First, in saying that “the most likely account” was that the deceased used the words attributed to her by the applicant during the course of the dispute which led to the killing, he was in fact accepting the evidence of the applicant about what the deceased said. This did not involve any finding against the applicant which had to be proved beyond reasonable doubt.

Nor do I think that he was applying an incorrect standard in making the remark that the fact that the provocation occurred in that fashion “accords with the probabilities of what occurred” and provided “the only rational explanation” of the applicant’s loss of control. The sentencing judge’s remarks in that paragraph must be considered in the context of his earlier remarks at [44] that he was “persuaded” that the applicant’s loss of self-control was caused by the words used by the deceased, and his finding at [49], expressly made beyond reasonable doubt, that the applicant attacked the deceased while she was on the bed, and his finding at [52]-[53], also expressly made beyond reasonable doubt, that, as a consequence of the abuse from the deceased, the applicant lost his self-control and stabbed the deceased to death.

It seems to me that, in those circumstances, the sentencing judge’s reference to “the probabilities” and the verbal abuse being “the only rational explanation” of the cause of the applicant’s loss of control did not involve a finding on the balance of probabilities that the attack was caused by a verbal provocation as distinct from a provocation resulting from a stabbing attack with a knife or self-defence. His reference to “the probabilities” and the words attributed to the deceased by the applicant being “the only rational explanation” were directed to the nature of the verbal provocation in circumstances where the primary judge was satisfied beyond reasonable doubt that the only alternative causes of either self-defence or provocation as a result of being attacked with the knife were not made out.

The second basis on which it was submitted that the sentencing judge had not made his findings beyond reasonable doubt was that he did not take into account expert evidence, particularly the fact that, while the deceased’s DNA was found on the handle of the knife, her blood was not. While that evidence may be relevant to the question of whether it was open to the sentencing judge to conclude beyond reasonable doubt that the assault resulted from verbal provocation, it does not follow that, in reaching his conclusion, he applied the wrong test. Whether he was in error in reaching this conclusion is the subject of ground 2.

It follows that ground 1 of the grounds of appeal has not been made out.

Although the Court did not have the sentencing judge’s summing-up to the jury, it is apparent from the opening statement made to the jury on behalf of the applicant, which I have set out at [108] above, that he was seeking to persuade the jury that “Not only did [the deceased] come at him with a knife but she actually tried to stab him, and he attempted to defend himself” and that “Far from letting up once he had taken the knife off her, she continued [to attack him] both verbally and physically”.

Thus, it was critical to the defence case that not only was there verbal provocation, but that the deceased was originally in possession of the knife and in fact attempted to stab the applicant with it.

It was, in my opinion, open to the sentencing judge to be satisfied beyond reasonable doubt that that was not what in fact occurred. The sentencing judge, in my opinion, was entitled to reject the evidence of the applicant on this issue.

The first account given by the applicant as to what occurred was given in answer to a question from Senior Constable Jarman, who asked him “Did you do this to her?”, to which he responded “Yes” and told her that he used a knife. He also stated to Senior Constable Watson “I have very big problems with my wife, long big problems. I have so much stress”. There was no mention of the deceased attacking him with a knife.

The first suggestion from the applicant that the deceased had attacked him came in what he told Dr Sacca, as recorded in her notes: “Patient states left arm injured when his wife, who was trying to kill herself with a knife, then attacked him”. However, by the time of the ERISP later in the morning of 18 April 2012, the applicant provided a number of different accounts. First, he criticised the deceased for her treatment of their children, which was not supported by any other evidence. He claimed that the deceased grabbed their son and started to hit him. He said that he started to talk to her. He then said that she said that “I’m going to commit suicide” and took the knife. He then said that “I was sitting in the room so she went and hit me” on his left arm. He said that she started hitting him and he could not “put up with that”, so he hit her with the knife: see ERISP Q73-Q83).

Later in the ERISP, the applicant referred to an argument about the wire to the mixer being cut saying the argument took place originally by telephone in the afternoon. He said that the argument continued. He claimed that the deceased had agreed the day before she would change her ways, but said that, on the night in question, she was “hurting me with her words and raising her voice”. He said that he said “enough, I am very tired”, and claimed that he put a pillow over his head. He said that the next thing was “I was lying down in bed, I saw her carrying the knife”, and said that she was standing above him. He said that he got up towards her straight away in order “not to hit me or to hit herself”. He said that she then hit him with the knife and started swearing at him. He said that he “couldn’t take it”, saying that “You can see here that I‘m injured and despite all of that … she does not appreciate this or that”: see ERISP Q106-Q109, Q129, Q236, Q253-Q296.

He next said that he was leaning on the bed under the covers, which were halfway up. He said that she was still swearing, he saw himself bleeding, he took the knife off her, and she was saying “bad words”: see ERISP Q300-Q302. At that stage in the ERISP, the applicant said that the deceased did not threaten to commit suicide that night, but that she had previously threatened to do so: see ERISP Q325-Q329. The applicant also said, towards the end of the interview, that he thought that the deceased could have stabbed him because “she brought this specific knife”, and that she had tried to stab him a month before: see ERISP Q331-Q332.

It can be seen there were a number of internal inconsistencies in the applicant’s account of what occurred. He first said that the deceased threatened to commit suicide. Second, he initially said that he was “sitting in the room” when he was hit by the deceased in the left arm. Subsequently, he said that he was lying in bed, that she was standing above him, and that he got up straight away. Finally, he said that he was on the bed under the covers, which were halfway up. His last version was that, as the deceased started hitting him, he was leaning on the edge of the bed. Significantly, in none of these versions was there any suggestion that the deceased attempted to stab him multiple times through the blanket.

I have set out the evidence of the deceased in chief at the trial at [137]-[142] above. This version was quite different to his earlier versions, particularly in relation to his claim that he was covering himself with blankets and that she was hitting the two blankets with the knife.

There are a number of other difficulties with the applicant’s evidence. First, the allegation of the mistreatment of the children was not supported by any other evidence. The suggestion that he and the deceased were moving to Perth must be considered in light of the fact that, in her conversations with her mother and sister on 17 April 2012, the deceased apparently made no mention of this fact. Further, the applicant made no mention in the ERISP of the fact that, when he arrived home on 17 April 2012, the children complained that she was hitting them, as distinct from the comment that she grabbed his son and hit him. Nor did he mention that the deceased had threatened to leave with the children the following day. The sentencing judge was also entitled to accept the evidence of Ms Yousif and Mrs Zaki which established at least that the applicant was a controlling individual of whom the deceased was afraid.

Having regard to these matters, it is my opinion that it was open to the sentencing judge to reject the applicant’s version of events. His suggestion that the deceased repeatedly stabbed at him through the blankets while he tried to protect himself was only raised at the trial and was quite different from his earlier versions, which themselves were inconsistent. Further, a version of events which involves the deceased stabbing at the applicant some 20 times through the blanket without inflicting any injury apart from that on his forearm, with the applicant then losing self-control, taking the knife from her, and repeatedly stabbing her, is totally improbable. Even leaving aside the other difficulties with his evidence to which I have referred, the sentencing judge, who had the advantage of seeing the applicant give evidence, was entitled to reject his versions of events.

In these circumstances, the sentencing judge was entitled to be satisfied beyond reasonable doubt that the deceased did not attack the applicant with a knife, but rather, was stabbed when she was under at least one of the blankets either on or alongside the bed. The deceased, by the time of the attack, had changed into her pyjamas, by contrast to the applicant, who was in “street clothes”. Further, the only explanation for the incisions on the blanket was that they were caused by stabbing through it with a sharp implement. As the Crown pointed out, there were in fact many stains on the blanket, a number of which were adjacent to the holes. The absence of “saturated” bloodstains was explained by Dr Van Vuuren in the evidence which I have set out at [51]-[52] above. The primary judge was entitled to accept her evidence in preference to the evidence of Ms Roebuck, particularly having regard to the paucity of material on which Ms Roebuck based her opinion, and the fact that she was not a medical practitioner.

The applicant placed particular reliance on two matters. The first was the assertion that the wound to the applicant’s left arm was a “defensive wound”. Having regard to the evidence of Dr Van Vuuren to which I have referred at [54] above, the sentencing judge was entitled to conclude to the contrary.

The other matter relied on by the applicant was that, while the deceased’s DNA was on the knife handle, traces of her blood were not. However, the applicant had said both in the ERISP and in evidence at trial that the deceased had previously handled the knife. In these circumstances, it was open to the sentencing judge to arrive at the conclusion he reached beyond reasonable doubt, notwithstanding this evidence.

It follows that this ground of appeal has not been made out.

The applicant noted that the sentence imposed was arrived at after allowing a 25% discount for the offer to plead guilty to manslaughter. He observed that the sentencing judge’s starting point was therefore 16 years with a non-parole period of 12 years.

The applicant referred to the “Public Defender’s Sentencing Table” for manslaughter domestic stabbings, which he submitted demonstrated that the sentence was “at the very top of the range” for a manslaughter domestic stabbing. Counsel for the applicant pointed out at the hearing that there were only two cases where a higher total sentence was imposed and only one where there was a higher non-parole period. She accepted that one of the two cases was irrelevant, but submitted that the other case, R v Anderson [2016] NSWSC 399, was relevant to a consideration of this issue. It should be noted that an appeal from that decision was allowed: Anderson v The Queen [2018] NSWCCA 49.

Counsel for the applicant submitted that the effect of what the deceased said, which was that she had been “unfaithful during the course of marriage”, and the shock of finding out the children were not his, meant that the case was one akin to where the victim was found “in flagrante”. She also relied on the fact that the appellant reported the killing, while accepting that he did not do so immediately.

The Crown pointed out that the sentencing judge found the offence was a “most serious” example of manslaughter. She referred to Biddle v The Queen [2017] NSWCCA 128 at [105], where Hoeben CJ at CL observed that, in respect of offences committed in the context of a domestic relationship, “general deterrence, community protection and denunciation in sentencing for domestic violence are considerations which are of considerable importance in the community at the present time”.

For a sentence to be manifestly excessive, it must be shown to be “unreasonable or plainly unjust”: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], [22]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]-[59] (Hili v The Queen).

As I have noted, the applicant referred to a table, which he described as the “Public Defender’s Sentencing Table” for manslaughter domestic stabbings. The table provides little assistance. As has been repeatedly pointed out, a range of sentences so disclosed is not necessarily the correct range or otherwise determinative of the upper or lower limits of the sentencing discretion: Hili v The Queen at [54], citing Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]-[305]; R v Pham (2015) 256 CLR 550; [2015] HCA 39 at [26]-[27].

Ultimately, the only case that the appellant relied on as comparable to the present case was R v Anderson [2016] NSWSC 399. In that case, a plea of guilty on the basis of excessive self-defence was accepted. The facts on which the sentencing judge sentenced the offender were that, following a struggle between the deceased and the offender, the offender grabbed the knife from the deceased, and the circumstances were such as to no longer justify him stabbing her. After a discount of 20% for his guilty plea, the sentencing judge sentenced the offender to a term of imprisonment of 12 years and 9 months with a non-parole period of 9 years and 6 months.

On the appeal in Anderson v The Queen [2018] NSWCCA 49 (Anderson v The Queen), it was found that the sentencing judge erred in holding that the struggle between the offender and the deceased had ceased once the offender regained possession of the knife, and thus, that the justification for the stabbing had passed. The Court stated at [42] that this was contrary to the agreed facts and the other material available, which showed that there had been a struggle for possession of the knife and that the struggle continued after the applicant got possession of it, in the course of which he stabbed the deceased in the chest. The Court resentenced the applicant to a sentence of 12 years with a non-parole period of 9 years, the same sentence imposed in the present case, albeit with a discount of 20% for a guilty plea, compared with 25% in the present case.

That case does not provide any basis for concluding that the sentence in the present case was manifestly excessive. The offender in Anderson v The Queen was sentenced on the basis of manslaughter by excessive self-defence in the context of an ongoing struggle involving the use of a knife, by contrast to the present case.

The offence in the present case was a most serious one. On the findings by the sentencing judge, which were open to him, the deceased, who was defenceless, was subject to a violent and sustained attack resulting from a “low level” verbal provocation. The sentencing judge found that, although the applicant was previously a person of good character, and there was little likelihood of further offending, he showed no remorse or regret for what occurred, as I have noted at [222] above.

The Crown was correct in pointing out that, in domestic violence offences of this nature, general deterrence, community protection and denunciation are important in sentencing. It must be made clear by the courts that such domestic violence will warrant severe punishment.

In these circumstances, the sentence was not manifestly excessive.

In the result, the following orders should be made:

JOHNSON J: I agree with the reasons and proposed orders of Bathurst CJ.

PRICE J: I agree with the reasons of the Chief Justice and the orders that the Chief Justice proposes.