R v Katherine Abdallah (No 5)

1. [1]

   An oral application for a discharge of the jury was made on Wednesday 22 November 2017. This was the 11th day of this trial. The application came some hours into the Crown’s closing address.

2. [2]

   The accused is standing trial for manslaughter by dangerous and unlawful act in stabbing the deceased in the right chest on 6 February 2013. The act of stabbing and the altercation leading up to it is captured on CCTV footage that has been shown to the jury. Self-defence is in issue.

3. [3]

   The complaint by counsel for the accused is that the argument posited by the Crown was more appropriately directed to an allegation of murder than to manslaughter. It was argued that the language used by the Crown of “aim” at the chest, where there are vital organs, coupled with the assertion of a deliberate act, is akin to asserting murder, an “act of pre-meditation” with “specific intent”.

4. [4]

   Secondly, it was argued that the description does not reflect the evidence in the CCTV footage of the event (Exhibit E) as the CCTV footage shows that the knife in fact “moves across the chest of the accused and makes contact with the chest of the victim”.

5. [5]

   In response the Crown stated that the submissions were directed to the question of whether the accused was acting in self-defence. It was argued that part of that defence is the need for the jury to make a determination regarding the circumstances as the accused perceived them to be at the time of the stabbing. The Crown submitted that it was open to summarise the evidence the way he had and that it is relevant to the accused’s state of mind at the time and so is relevant to self-defence. The fact that this analysis might also be relevant to a charge of murder does not mean the submission is not appropriate for a trial for manslaughter where self-defence is raised.

6. [6]

   The part of the Crown’s address in issue is as follows, the references to the 24-hour clock (eg 17.59.46) are references to what it is submitted is shown on the CCTV footage at those times:

7. [7]

   The relevant test to apply in determining an application for discharge of the jury is set out by the High Court in Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 (“Crofts”). Before discharging the jury in this trial, I am required to be satisfied that there is a high degree of necessity to do so. As the plurality (Toohey, Gaudron, Gummow and Kirby JJ) observed in that decision (at 440):

Decision

1. [8]

   Self-defence is a significant issue in this trial. Counsel for the accused opened as follows in relation to what he urged the jury to find the CCTV footage shows (T48.28-39):

2. [9]

   As submitted by counsel for the accused, and was accepted by the Crown, unless the Crown is able to prove beyond reasonable doubt that self-defence is not made out, the accused must be found not guilty. It is evident that in order to persuade the jury in accordance with its onus for manslaughter, the Crown’s closing address properly directed attention to the evidence that related to one of the essential elements of manslaughter; namely voluntariness in terms of the act of stabbing.

3. [10]

   Secondly, in terms of self-defence, attention was directed to the question of whether the accused believed her conduct was necessary to defend herself and whether the conduct was a reasonable response in the circumstances as she perceived them at that time.

4. [11]

   To address those elements, it is appropriate for the Crown to address the jury on what it asserts is demonstrated in the CCTV footage leading up to and including the act of stabbing.

5. [12]

   I have viewed the CCTV footage a number of times. Whilst what is shown on that footage is ultimately a matter for the jury, in my view the submission made by the Crown as to what is shown is one that was open to be made.

6. [13]

   Counsel for the accused argued that the reference to the accused “arming herself” to “win the fight” is a direct reference to an intention to kill. I do not accept that is so. The Crown’s submission needs to be viewed in the context of the carefully constructed series of propositions in the closing address as to what is shown on the CCTV footage at the critical time. The words “intent”, “specific intent” or “premeditation” do not appear and do not necessarily arise from the interpretation of the footage put forward for the jury to consider.

7. [14]

   Those aspects of the Crown’s address were properly directed towards the jury’s consideration of evidence that is capable of negativing self-defence, to address the Crown’s high onus of proof in that regard, and in regard to the elements of manslaughter by unlawful and dangerous act.

8. [15]

   Counsel for the accused stated in answer to a question by me that the asserted problem could be not cured by a direction to the jury. Accordingly, no direction was given to the jury on this issue.

9. [16]

   The complaints raised by counsel for the accused are not made out. There is no proper basis to discharge the jury and I decline to do so.