Abdallah v R

1. [1]

   BATHURST CJ: I have had the advantage of reading the judgments of Macfarlan JA and Hamill J in draft. I agree with the orders proposed by Hamill J. Because of the disagreement between their Honours and the fact that the proceedings raise somewhat unusual and difficult issues, it is desirable that I set out my reasons for agreeing with his Honour’s order.

2. [2]

   The facts giving rise to the proceedings are set out in the judgment of Macfarlan JA and it is unnecessary to repeat them. As Macfarlan JA has pointed out, the applicant was originally tried for the murder of the victim and found not guilty of murder but guilty of manslaughter. Her conviction for manslaughter was quashed and a retrial ordered on the ground that the jury was misdirected concerning self-defence, a critical issue at the trial. She was retried and convicted, the application for leave to appeal is brought from that conviction.

3. [3]

   The sole ground of appeal against conviction is in the following terms:

4. [4]

   Before dealing with what is described in the ground of appeal as the “incontrovertibility principle” and its application in this case, it is convenient to set out the relevant issues involved in the charges of murder and manslaughter in circumstances where self-defence is raised as an issue. Macfarlan JA has set out the relevant legislation.

5. [5]

   To convict for murder in the present case it would have been necessary for the Crown to establish beyond reasonable doubt, first, that the applicant attacked the victim with the intention either to kill her or inflict grievous bodily harm upon her: Crimes Act 1900 (NSW) s 18(1)(a). Self-defence having been raised, it would also be necessary for the Crown under s 419 to negative the matters in s 418. If the Crown failed to do so, the accused would be entitled to an acquittal. Thus in the present case, it would be necessary for the Crown to negative that the applicant’s conduct was necessary to defend herself and/or the conduct was a reasonable response in the circumstances as she perceived them.

6. [6]

   However, if the Crown was unable to negate the proposition that the applicant believed the conduct was necessary to defend herself but only that the conduct was a reasonable response, the effect of s 421 of the Crimes Act would be to reduce the offence to manslaughter.

7. [7]

   In the present case, such material as is available to the Court means that it is speculative to determine the basis on which the jury reached its conclusion that the Crown had not proved that the applicant had committed murder: Cheung v The Queen (2009) 209 CLR 1; [2001] HCA 67 at [7]-[10].

8. [8]

   By contrast, to establish manslaughter the Crown must establish that the death of the victim resulted from an unlawful and dangerous act of the applicant. It is not necessary to establish either an intention to kill or inflict grievous bodily harm. If self-defence was raised, the Crown again would have to negative the matters in s 418. Section 421 has no operation in these circumstances as it only operates to reduce a charge from murder to manslaughter.

9. [9]

   In the present case, on one view because manslaughter was the only charge on the indictment, it was immaterial whether or not the applicant intended to inflict grievous bodily harm on the victim assuming the Crown could prove that she died as a result of an unlawful and dangerous act. If she did die as a result of an unlawful and dangerous act and the Crown was able to negative the matters in s 418, she would be guilty of the offence charged, namely, manslaughter. That was the approach essentially taken by the trial judge. In her written directions (MFI 27) she stated that the Crown must prove that the accused voluntarily did an act that caused the death of the deceased and that act was unlawful and dangerous. She stated that to prove the offence of manslaughter, the Crown did “not have to prove an intent to kill or to cause really serious physical injury”. She also said that in their opening addresses at the start of the trial both the Crown Prosecutor and defence counsel indicated that the issue in the trial was Element 5 (the act was unlawful) and that was “the matter in dispute”.

10. [10]

    She also stated in the written directions that the Crown’s case was that “when Ms Abdallah stabbed Ms Sarkis, causing her death it was unlawful homicide”, and that the accused said “the act of stabbing the deceased was done in self-defence and therefore lawful”. Her Honour’s summing-up on the issue was in the following terms:

11. [11]

    These directions were given in the context of a Crown closing address, the relevant portions of which have been set out in the judgment of Macfarlan JA at [52]. Although that portion of the address was directed to the issue of self-defence, it was certainly material from which a jury could reason that the applicant stabbed the victim with the intention to inflict grievous bodily harm on her.

12. [12]

    As Hamill J has pointed out, an application to discharge the jury was made following the Crown’s address and that in rejecting that application the trial judge said “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”.

Incontrovertibility

1. [13]

   It is well established that what can conveniently be described as the principle of double jeopardy goes beyond circumstances where a plea of autrefois acquit is available to an accused person. In Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, the plurality at [10] approved the rationale for the various rules that are described as “rules against double jeopardy” stated by Black J in Green v The United States (1957) 355 US 184 at 187-188:

2. [14]

   In Mraz v The Queen (No 2) (1956) 96 CLR 62; [1956] HCA 54 the appellant was charged with murder, it being alleged that the victim died during or immediately after being raped by him. He was acquitted of murder but convicted of manslaughter. The conviction for manslaughter was subsequently quashed by the High Court. There was no issue at the trial that the victim had died during or shortly after having sexual intercourse with the appellant, the issue at the trial being whether she consented to such intercourse. The appellant was subsequently indicted on a charge of rape and entered a special plea of issue estoppel in reliance on the verdict in the earlier proceedings. The High Court held that the plea was made out.

3. [15]

   The Court held the verdict must be taken to cover the issue of rape and negative its commission by the applicant. The Court stated the principle so far as relevant to the present case in the following terms at 67-68:

4. [16]

   As Macfarlan JA has pointed out this passage was cited with approval in Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 at [76].

5. [17]

   Mraz was a case where there were two routes which could have led to the acquittal on the charge of murder. In a passage which is relevant to the present case, the Court held that in the circumstances of that case it was appropriate to exclude one of the two possible avenues of conviction where it was clear that avenue was not the basis on which the jury reached its verdict. The Court made the following remarks at 69-70:

6. [18]

   By contrast, in the present case it is not possible to conclude that one of the two routes to acquittal was “a merely logical possibility”.

7. [19]

   Garrett v The Queen (1977) 139 CLR 437; [1977] HCA 67 (‘Garrett’) concerned a trial for rape at which the issue was consent. Evidence was permitted over objection that the applicant had been tried for rape of the same person previously, that that person had denied having consented to sexual intercourse and the applicant had been acquitted. All members of the Court said the evidence should not have been admitted. Barwick CJ, with whom Stephen, Mason and Jacobs JJ agreed, described at 445 “the relevant principle” as “that the acquittal may not questioned or called into question by any evidence which, if accepted, would overturn or tend to overturn the verdict”. The statement that the principle extends to evidence which would tend to overturn the verdict has been questioned in subsequent decisions of the High Court (see the judgment of Macfarlan JA at [77]-[79]) and rejected by this Court in Restricted Decision v R [2019] NSWCCA 124. That issue does not arise in the present case.

8. [20]

   In Garrett the trial judge also directed the jury that the acquittal of the appellant on the previous charge was a neutral fact. Barwick CJ at 445 stated that “it was not neutral and, if the prosecutrix were rightly permitted to give the evidence she gave, the acquittal was a dominant of which the applicant was entitled to full credit” and “[t]o have said that the acquittal was neutral was to deny the applicant the full benefit of the acquittal”. That portion of his Honour’s judgment has not been questioned.

9. [21]

   R v Storey (1978) 140 CLR 364; [1978] HCA 39 (‘Storey’) concerned the admissibility of evidence on a trial for rape. The evidence was tendered to show that the accused took the prosecutrix away from a railway station against her will with an intent to rape her. The accused had been previously acquitted of forcible abduction of the prosecutrix. The Court of Criminal Appeal in Victoria quashed the conviction on the basis that the evidence should not have been led. A majority of the High Court upheld the decision; Stephen, Mason and Aickin JJ on the ground that the evidence tending to show that the accused were guilty on an offence of which they had been acquitted was admissible but it had not been made clear to the jury that the previous acquittal could not be challenged and that the evidence must not be taken as proving guilt on the previous charge; Jacobs J on the ground that the evidence was wrongly admitted.

10. [22]

    Mason J, after referring to the passage from Garrett to which I have referred at [19] above, made the following remarks:

11. [23]

    Aickin J, with whom Stephen J agreed, reached the same conclusion on this aspect of the case at 409-411 as Mason J. Jacobs J determined the evidence was inadmissible. He made the following remarks:

12. [24]

    That case again emphasised the importance of giving the accused “the full benefit” of an earlier acquittal and of the need in circumstances where evidence may otherwise deprive the accused of that benefit, to give directions to ensure the accused obtained it.

13. [25]

    It should be noted that consistent with later authorities, Barwick CJ, Gibbs and Mason JJ considered that the doctrine of issue estoppel in civil law had no application in criminal proceedings, whilst the other members of the Court said it would only apply in rare cases. However, except to this extent, the authority of the decisions to which I referred above was not undermined.

14. [26]

    In Rogers v R (1994) 181 CLR 251; [1994] HCA 42 the question was whether the admission of records of interview which were rejected in earlier proceedings would constitute a direct challenge to verdicts of acquittal on previous charges during the course of which the evidence was rejected. The majority held that the doctrine of issue estoppel had no application in criminal proceedings. However, the majority also held that the tender of the records of interview was an abuse of process as “a determination that the confessions [in the interview] were made voluntarily would undermine the incontrovertible correctness of the verdicts of acquittal”: see 181 CLR 251 at 280.

15. [27]

    In R v Carroll (2002) 213 CLR 635; [2002] HCA 55 the accused was charged with perjury, the false testimony being his sworn evidence at a trial for murder that he did not kill the deceased. His conviction for murder had been quashed. It was held that the indictment for perjury was an abuse of process. Gleeson CJ and Hayne J explained the principles in the following manner:

16. [28]

    Gaudron and Gummow JJ, referring to Storey, explained at [91] that there would be cases where “relevant evidence tending to show that the accused was guilty of an offence of which the accused had been acquitted may be admitted, but only if the jury can be and is directed not to interpret it in such a way as to deny the acquittal”. They made the following comments:

17. [29]

    It can be noted that each of the judgments in that case left open the question of whether the wider proposition expressed by Barwick CJ in Garrett should be accepted, whilst Gleeson CJ and Hayne J also emphasised at [45] that they were not attempting “to decide what may be the limits of the principle about incontrovertibility".

18. [30]

    This review of the authorities supports the following five propositions. First, the principle can apply in at least three sets of circumstances; the first being a challenge to the indictment as an abuse of process, the second in considering the admissibility of evidence and the third in circumstances where evidence is properly admitted on the question of whether the jury should be directed as to the acquittal of the accused on a previous charge.

19. [31]

    Second, the principle is now based on the fact that to controvert a final acquittal is an abuse of process by reference particularly to the need for finality of litigation, the consequential need for an acquittal to be incontrovertible and the need for individuals to be protected from repeated attempts to secure convictions.

20. [32]

    Third, irrespective of whether the principle extends to render evidence which would only tend to contravene an acquittal inadmissible, the courts have declined to determine the limits of the doctrine.

21. [33]

    Fourth, whatever its limits as Mason J pointed out in Storey at 396, an acquittal must be fully recognised and without qualification in all criminal proceedings.

22. [34]

    Fifth, there is no general proposition that the doctrine can have no application where there is more than one route by which a jury could reach its verdict and the Court cannot discover which of these routes was taken. In these circumstances, the incontrovertibility of the verdict must still be respected, at least to the extent that it is possible to do so.

The present case

1. [35]

   In the present case, the indictment charging manslaughter did not contravene the principle. As I have emphasised, the elements of the offence are different to those of murder in respect to the question of intention to kill or inflict grievous bodily harm.

2. [36]

   Although the ground of appeal was cast widely, it did not seem to be contended that the evidence led was inadmissible as contravening the principle. It would seem to me that in prosecuting the manslaughter charge, the Crown was entitled to lead evidence which supported a charge which had different elements to murder. In the present case, the retrial of manslaughter took place as a result of an order of the Court quashing the original conviction and ordering a retrial. To contend that the evidence could not be led would render such a retrial nugatory and itself be an affront to the administration of justice.

3. [37]

   However, the fact remains that the manner in which the charge was presented by the Crown to the jury left it open to the jury to conclude that the applicant stabbed the victim intending either to kill her or inflict grievous bodily harm and at least having regard to the ferocity of the attack, it was not carried out in self-defence. To reason in this way would challenge the incontrovertibility of the verdict of murder and, to adopt the words of Gummow and Gaudron JJ in Carroll at [92], “deny the acquittal”.

4. [38]

   Although I accept that minds might differ, I do not think that the statements by the trial judge to the jury that the Crown did not have to prove an intention to kill or inflict grievous bodily harm is sufficient to overcome the difficulty which arises. To give what Barwick CJ described in Garrett and Mason J in Storey the applicant “the full benefit of the verdict”, it seems to me that the jury should have been told of the acquittal and the limitations that imposed on the manner that they could reason to a conviction.

5. [39]

   In these circumstances, I agree with the orders proposed by Hamill J.

6. [40]

   MACFARLAN JA: In 2015 the applicant stood trial in the Supreme Court before Adamson J and a jury on a charge that on 9 February 2013 she murdered Ms Suzie Sarkis, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). At that trial, the applicant was found not guilty of murder but guilty of manslaughter. On 2 December 2016 this Court quashed the conviction and ordered a new trial, on the basis that the jury was misdirected concerning self-defence, this being the central issue at the trial ([2016] NSWCCA 275). Whilst the trial judge’s direction accorded with that suggested in the Criminal Trials Bench Book, the suggested direction was found to be erroneous.

7. [41]

   In 2017 the applicant was tried in the Supreme Court before Lonergan J and a jury on a charge of the manslaughter of Ms Sarkis. The jury returned a verdict of guilty and on 22 May 2018 her Honour sentenced the applicant to imprisonment for 9 years, with a non-parole period of 6 years and 9 months commencing on 10 February 2013 and expiring on 22 September 2024. The applicant is eligible for release to parole on 22 June 2022.

8. [42]

   On the present appeal, the applicant contends that her conviction of manslaughter at the trial before Lonergan J should be quashed because the manner in which the Crown conducted its case controverted the applicant’s earlier acquittal on the charge of murder. She submitted that whilst the originally articulated Crown case (that the applicant’s admitted killing of the deceased was not a reasonable response to the threat to herself that she perceived) did not offend the principle of incontrovertibility, the Crown later impermissibly maintained a case of murder by contending before the jury that the applicant intended to cause the deceased grievous bodily harm. The applicant conceded that neither the parties nor the trial judge adverted at the trial to the possibility that the Crown’s conduct of the case in this manner constituted a breach of the principle of incontrovertibility.

9. [43]

   For the reasons appearing below, I consider that, whilst the applicant should be given any necessary leave to appeal, her appeal should be dismissed, as should her application to appeal against the sentence imposed on her.

The factual circumstances

1. [44]

   The applicant and the deceased were cousins and were living together at the time of the deceased’s death on 9 February 2013.

2. [45]

   On 29 January 2013 the applicant had caused a CCTV camera to be installed in the lounge and dining room area of the townhouse in which she lived with the deceased. Footage from the camera showed that on 9 February 2013 there was a physical altercation between the applicant and the deceased in the lounge area of the premises during which the deceased pushed the applicant to the ground and repeatedly punched her to the head and body, and kicked her torso. A struggle thereafter occurred (partly off camera) until the applicant was depicted running into the kitchen, followed by the deceased. The applicant then picked up two knives from the kitchen bench and held them out. The deceased came towards the applicant and the applicant jabbed at the deceased with the result that the deceased collapsed on the floor. The deceased was found to have died from a single knife wound which penetrated about seven to 10 centimetres into her chest, puncturing her right lung and causing a cardiac arrest.

Relevant statutory provisions

1. [46]

   Provisions of the Crimes Act of present relevance are as follows:

The trial before Adamson J

1. [47]

   On the present appeal, no material concerning the trial before Adamson J was before the Court other than what could be gleaned from the earlier decision of this Court of 2 December 2016.

2. [48]

   The following appears in the judgment of Hoeben CJ at CL in that decision. His Honour’s description of what occurred is not affected by the fact that his Honour dissented as to the outcome of the appeal.

3. [49]

   In relation to the inscrutability of the jury verdict, Button J observed:

The trial before Lonergan J

1. [50]

   In opening to the jury, the Crown initially put its case as follows:

2. [51]

   Later in the opening, in referring to the CCTV footage, the Crown said:

3. [52]

   The Crown’s final address included the following:

4. [53]

   The applicant’s counsel then complained about these submissions, submitting that they were directed to a case of murder not the charged case of manslaughter. He applied for a discharge of the jury but the trial judge rejected the application (R v Katherine Abdallah (No 5) [2017] NSWSC 1672). In her judgment her Honour said at [5] that the fact that the Crown might put a submission at the trial “relevant to a charge of murder does not mean the submission is not appropriate for a trial for manslaughter where self-defence is raised”.

5. [54]

   In thereafter concluding its closing address, the Crown said:

6. [55]

   The trial judge’s summing-up included the following:

The submissions on the conviction appeal

1. [56]

   The applicant’s written submissions on appeal summarised her arguments as follows:

2. [57]

   Later in the written submissions, she put the following:

3. [58]

   In oral argument on appeal, senior counsel for the applicant submitted that it was a “false argument” to say that there were two possible bases of the jury’s verdict of acquittal of murder at the first trial. He said that there was in fact only one possibility and “you can work it out in this case”. He did not however provide any guidance as to how that could be done other than to submit that it was “overwhelmingly likely” that the applicant was convicted of manslaughter on the basis of s 421 of the Crimes Act.

4. [59]

   Counsel then proceeded to submit that if there were in fact two possible bases of the first jury’s verdict, that put the applicant “in a better position, not a worse position”. He submitted that if the acquittal of murder and conviction of manslaughter were based on excessive self-defence (see s 421 of the Crimes Act), the jury in the second trial needed to be told that it had to accept that the applicant believed that she had acted in self-defence (leaving aside the question of whether, as the Crown contended, her actions were an excessive response to the threat). On the other hand if the jury at the first trial acquitted the applicant of murder because it was not satisfied that she had an intent to kill or inflict grievous bodily harm (that is, “a murderous intent”), the jury at the second trial had to be told that it was “not open to [it] to conclude that she had such an intention at all”.

5. [60]

   The Crown submitted on appeal that at the second trial it had not invited the jury to find that the applicant had the intent required to establish the mental element of the offence of murder and it pointed to the trial judge’s specific indication to the jury as follows (in her summing-up at [63]) that an intention to kill or cause serious physical injury was not a part of the Crown’s manslaughter case:

6. [61]

   Secondly, the Crown accepted that an accused is entitled to “the full benefit of an earlier acquittal” and that he or she will not obtain that if the jury in the later trial is “asked to make a finding which cannot be reconciled with the earlier verdicts” (R v Gilham (2007) 73 NSWLR 308; [2007] NSWCCA 323 at [220]). The Crown submitted however that the difficulty “lies in identifying what an earlier acquittal, in fact, determined, so as to identify what is inconsistent or irreconcilable with the acquittal”. The Crown then argued that its submissions in the trial before Lonergan J (that the applicant’s conduct in stabbing the deceased was deliberate and that the applicant did not believe that it was necessary to stab the deceased in order to protect herself) were not inconsistent with the applicant’s earlier acquittal for murder. This was so because there were two alternative bases upon which the jury at the trial before Adamson J may have acquitted the applicant of murder (and found her guilty of manslaughter). The first possible basis was that it was not satisfied beyond reasonable doubt that the applicant intended to kill or inflict grievous bodily harm on the deceased and the second was that, whilst it was satisfied of that intent, it was also satisfied that the applicant believed her conduct was necessary to defend herself but used excessive force to do so.

Determination of the conviction appeal

1. [62]

   The principle that an acquittal is incontrovertible in subsequent proceedings was considered by the High Court in Mraz v The Queen (No 2) (1956) 96 CLR 62; [1956] HCA 54 although the Court there used the terminology of “issue estoppel” which has since been rejected (see R v Storey (1978) 140 CLR 364 at 374; [1978] HCA 39). The decision in Mraz nevertheless remains authoritative. It was relied on by the applicant in its submissions in this Court and was cited with approval by the High Court in Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 at [76] (footnote (53)).

2. [63]

   The principle of incontrovertibility is a reflection of a “central and pervading tenet of the judicial system … that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances” (D’Orta Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [34]). That tenet is also reflected in the “rule against double jeopardy” which is manifested in a number of aspects of the law (Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [9]-[10]). Underlying these concepts is the aim of the law to achieve finality so that, relevantly to this case, an issue that has finally been determined cannot be re-litigated (see Island Maritime Ltd v Filipowski (2006) 226 CLR 328; [2006] HCA 30 at [41]). It follows from these considerations that the principle of incontrovertibility will not be infringed unless the person relying upon it can demonstrate that the issue in question has in fact been determined earlier. It is insufficient to demonstrate that the earlier decision may have involved, although it did not necessarily involve, determination of the point in question.

3. [64]

   In Mraz the applicant was charged with the murder of a woman, the Crown case being that the death of the woman had been caused during or immediately after the commission of an act of rape upon her by the applicant. At that time, s 18 of the Crimes Act 1901 (NSW) provided that the crime of murder was committed if the act of the accused causing the death charged was done during or immediately after the commission by the accused of the crime of rape. At the trial, it was not disputed that there had been sexual intercourse between the applicant and the woman and that at the time, or shortly afterwards, the woman had died. The issue that was contested was whether or not such intercourse had taken place without the woman’s consent. The applicant was found not guilty of murder but guilty of manslaughter. The manslaughter conviction was however quashed on appeal. Subsequently, the applicant was charged with rape, based on the same facts. He was convicted of rape and on appeal, contended that the conviction was inconsistent with his earlier acquittal of murder.

4. [65]

   The High Court held that where an issue has been “distinctly raised and found” in criminal proceedings, “if there be any subsequent litigation between the same parties, no allegations legally inconsistent with the finding may be made by one of them against the other” (at 69). It also held that for the purpose of determining what issues were judicially determined it is proper to look beyond the record to identify the issues that were in fact litigated. Having identified the issues that were left to the jury in that case, the Court concluded that “the jury found a verdict upon the very issue which under the plea of not guilty the indictment for murder, properly understood according to law, presented to them as an issue of rape or no rape” (at 71). As a result the earlier verdicts were taken “to negative the commission of [rape] by the applicant” (ibid) and the Court quashed the applicant’s subsequent conviction of rape.

5. [66]

   The present case is different because there were two possible routes by which the jury at the trial before Adamson J could have arrived at its verdicts of not guilty of murder but guilty of manslaughter. As appears from [48] and [49] above, it was open to that jury, in accordance with the Crown case left to it for consideration, either to be satisfied beyond reasonable doubt that the applicant did not intend to kill the deceased or inflict grievous bodily harm when she stabbed her, or alternatively to be satisfied that the applicant believed that she needed to act to defend herself but that she responded to the threat from the deceased in a manner that was not reasonable in the circumstances as she perceived them. As a result, it cannot be concluded that the verdict of manslaughter in the trial before Lonergan J was inconsistent with the applicant’s acquittal of murder in the trial before Adamson J. As the basis of the earlier verdict cannot be determined, the verdict is thus to this extent inscrutable (Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [7]; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [67]). The Crown’s case at the trial before Lonergan J that the applicant was guilty of manslaughter by an unlawful and dangerous act was not inconsistent with the earlier verdict of acquittal of murder because the basis of that verdict is not known or knowable. Contrary to the applicant’s submission (see [58] above), the inscrutability of the jury’s verdict cannot be side-stepped by this Court speculating as to what was or was not the likely basis on which the jury proceeded.

6. [67]

   The applicant’s primary submission on appeal (see [56] above) was that the Crown was “not permitted to establish a case of manslaughter by unlawful and dangerous act under s 18(1)(b) by proving an act done with intent to cause grievous bodily harm being murder, under s 18(1)(a), when the applicant had already been acquitted of murder”.

7. [68]

   This submission must be rejected at least because, for the reasons I have given, it is not known whether the jury at the trial before Adamson J acquitted the applicant of murder on the basis that it was not satisfied beyond reasonable doubt that she intended to inflict grievous bodily harm on the deceased. There is thus no necessary inconsistency between the later case and the earlier verdict.

8. [69]

   The same reasoning answers the applicant’s alternative submission referred to in [56] above as it is also premised on the proposition that the earlier jury found that the applicant had a murderous intent (but acted excessively in self-defence) whereas in fact it may not have been satisfied of that intent. The jury may have acquitted the applicant of murder but convicted her of manslaughter on the basis of her commission of a dangerous act which was not rendered lawful by any reasonable action by her to defend herself.

9. [70]

   None of the other authorities referred to in the submissions on appeal, including those referred to below, assist the applicant’s case on appeal.

10. [71]

    In Storey, evidence that was admitted at a rape trial was found by the High Court to be inconsistent with the accuseds’ acquittal of forcible abduction at an earlier trial. The majority justices other than Jacobs J concluded that the admission of the evidence should have been accompanied by an instruction to the jury that the evidence was not to be taken as proving guilt on the previous charge. Jacobs J concluded that the evidence was inadmissible.

11. [72]

    Mason J, who was one of the majority judges, said the following after reviewing earlier authority (at 396-7, see also Aickin J, with whom Stephen J agreed, at 415):

12. [73]

    There was no conflict with these principles in the present case because at the second trial Lonergan J made it clear to the jury that it was not part of the Crown’s case that the applicant acted with an intent to kill or inflict grievous bodily harm (see [60] above).

13. [74]

    In Carroll, the respondent was acquitted of murder after giving evidence that he did not kill the victim. This evidence was directed to the only issue at the trial, namely whether the respondent killed the victim. Subsequently, the respondent was charged with perjury in respect of that evidence. The High Court held that the perjury indictment was an abuse of process and should be permanently stayed. It held that conviction on that indictment would contradict the respondent’s earlier acquittal of murder as both charges raised the same ultimate issue. Gleeson CJ and Hayne J noted at [26] that what the prosecution had to prove at each trial was not identical but that “the factual inquiries made at the two trials, in the end, came to focus on the same issue – did the respondent kill [the victim]?” They also noted that ‘the prosecutor expressly acknowledged that the perjury case was conducted, in practical effect, as a re-trial for murder’ (ibid).

14. [75]

    Their Honours stated at [35] that the application for a stay was based upon “the need for decisions of the courts, unless set-aside or quashed, to be accepted as incontrovertibly correct” (citing Rogers at 273).

15. [76]

    The position was different in Restricted Decision [2019] NSWCCA 124, where the issue at the first trial was whether the accused had been driving a vehicle under the influence of alcohol. His subsequent prosecution for giving perjured evidence at that earlier trial as to how many alcoholic drinks he had consumed was not inconsistent with his acquittal at that trial because, although material to the outcome, the evidence was not decisive, there being many other factors that were also relevant to the Magistrate’s conclusion that the accused was not driving under the influence of alcohol.

16. [77]

    In Carroll, Gaudron and Gummow JJ drew the same distinction between the contradiction at a later trial of evidence that was determinative of the outcome of an earlier trial and contradiction of evidence that was simply material to its outcome. Their Honours instanced the subsequent impeachment of alibi evidence given at the earlier trial; where there had been a jury trial, as in that case, it could not be known whether the alibi evidence was determinative of the jury’s verdict.

17. [78]

    Carroll does not assist the applicant in the present case because, there only being one issue at the earlier trial in that case, it was clear on what basis the verdict of acquittal was arrived at. As I have said, there were however two possible bases here.

18. [79]

    In Garrett v The Queen (1977) 139 CLR 437 at 445; [1977] HCA 67, Barwick CJ said that an “acquittal may not be questioned or called into question by any evidence which, if accepted, would overturn or tend to overturn the verdict”. For reasons that I gave in Restricted Decision [2019] NSWCCA 124 at [31] (with the concurrence of Harrison J), this observation is not however authority for any broader principle than the principles to be derived from Carroll. In particular, it is not to be understood as attracting the principle of incontrovertibility where subsequent proceedings or evidence “might have the incidental effect of casting doubt upon, or even demonstrating the error of, an earlier decision”. Gleeson CJ and Hayne J said in Carroll at [50] that it did not so extend.

19. [80]

    For these reasons, the Crown’s case before Lonergan J was not inconsistent with the applicant’s acquittal at the earlier trial before Adamson J. As a result, the applicant’s challenge to her conviction fails.

The Grounds of Appeal

1. [81]

   The applicant seeks leave to appeal against her sentence on the following grounds:

2. [82]

   The applicant’s submissions on appeal addressed these three grounds together.

The sentencing judgment

1. [83]

   Lonergan J noted the following at the outset of her judgment:

2. [84]

   In her submissions to this Court, the applicant referred to the following paragraphs of her Honour’s reasoning:

Determination of the Grounds of Appeal

1. [85]

   The applicant’s first argument is that the effect of her Honour’s findings recorded in [43], [44] and [46] was that her Honour found that the applicant’s acts were done with an intent to at least cause serious injury which was tantamount to a finding that she had an intention to do grievous bodily harm and thus, subject to the question of self-defence, was guilty of murder. The applicant submitted that this finding contradicted her acquittal of murder and was therefore impermissible.

2. [86]

   I reject this submission as, for the reasons given above, it is not known whether or not the jury at the first trial was or was not satisfied that the applicant acted with an intent to murder or inflict grievous bodily harm. Therefore, even if her Honour’s finding was to be characterised in the manner submitted by the applicant, it would not have been inconsistent with the prior acquittal.

3. [87]

   Secondly, the applicant submitted that the sentencing judge’s findings contravened the principle stated in De Simoni because her Honour took account of a circumstance, namely, the applicant’s intent to inflict grievous bodily harm, that would have rendered her guilty of an offence (namely, murder) for which the penalty was greater than for manslaughter and of which the applicant was not charged.

4. [88]

   In De Simoni the applicant was charged with robbery which was relevantly defined in the Criminal Code (WA) as stealing with the use of, or a threat to use, “actual violence”. Separately, and giving rise to exposure to more severe sentences, the legislation identified circumstances of aggravation, including wounding or the use of “any other personal violence to any person”. The legislation required any circumstance of aggravation relied upon to be charged in the indictment.

5. [89]

   In sentencing the applicant in De Simoni, the trial judge noted that wounding had not been charged as an aggravating feature. In describing the crime, his Honour then referred to the applicant as having struck the victim from behind on the head with a piece of wood and having subsequently assisted the victim “by washing her wound” (see 386).

6. [90]

   In the High Court, Gibbs CJ (with whom Mason and Murphy JJ agreed and formed the majority) stated the subsequently oft-cited principle that (at 389):

7. [91]

   The majority however found that there had been no breach of this principle in that case. First, “the manner in which [the sentencing judge] mentioned the fact that the victim was wounded – in relation to the act of applicant in washing the wound – [did] not indicate that he relied upon the wounding in deciding upon the sentence” (at 394).

8. [92]

   Secondly, the judge was entitled to take into account that there had been violence committed by the applicant towards the victim because that constituted “actual violence” for the purposes of the unaggravated offence of robbery of which the applicant was charged. The judge was entitled to take that into account notwithstanding that the same facts also established that there had been “other personal violence to any person” which was an aggravating circumstance that had not been charged and which was relevantly to be regarded as referring to the same conduct as “actual violence”. Thus, if the facts in question establish an element of the offence charged, they may be taken into account, without breaching the De Simoni principle, even though they also establish an aggravating circumstance which has not been charged.

9. [93]

   The result of these considerations for the purposes of the present case is that, in sentencing the applicant for the crime of manslaughter, Lonergan J was entitled to take into account her findings concerning the violent acts of the applicant notwithstanding that on the applicant’s argument on appeal those findings may also have established that (subject to the question of self-defence) the applicant was guilty of the more serious, and uncharged, crime of murder. The acts found by her Honour were clearly “dangerous” acts and their commission constituted an element of the charged offence of manslaughter “by unlawful and dangerous act”. It did not matter that they may also have established an element of an uncharged offence.

10. [94]

    Thirdly, the applicant submitted on appeal that Lonergan J’s finding that it was implicit in the jury’s verdict in the second trial “that the Crown had proven beyond reasonable doubt that the offender was not acting in self-defence” (at [48]) was “far too general in the circumstances of the case”. It is not clear what consequences the applicant says should flow from acceptance of this submission but it is sufficient to say that I reject it.

11. [95]

    The judge’s reference to the verdict indicating that it was proved that the applicant “was not acting in self-defence” was accurate. The general expression her Honour used was appropriate because it was capable of embracing both of the limbs of s 418 of the Crimes Act – that the applicant did not believe her conduct was necessary to defend herself or that the conduct was not a reasonable response in the circumstances as she perceived them. The limb that was applicable depended upon the unknown and unknowable fact as to which route the jury at the second trial took to arrive at its verdict. It may have been satisfied that the applicant’s conduct was unlawful (because it was not in self-defence on either or both of these bases).

12. [96]

    The applicant then submitted that, as the second trial jury’s verdict did not reveal which route the jury took, her Honour should have done so on sentence. In my view however it was not necessary for her Honour to do so. It was sufficient to proceed, as her Honour did, upon the basis that “the offender was not acting in self-defence”. It was not a sufficiently significant matter for sentencing for her Honour to have fallen into error by not determining the basis for that result. Moreover, it was not suggested to her Honour on behalf of the applicant that that was a material matter for her Honour to determine and in my view for that reason the submission should not in any event be entertained on appeal.

13. [97]

    For these reasons, the applicant’s challenges to her sentence fail.

Orders

1. [98]

   For the reasons above, I propose the following orders:

   1. (1)

      To the extent necessary, grant leave to the applicant to appeal against her conviction and sentence.

   2. (2)

      Dismiss the appeals against conviction and sentence.

2. [99]

   HAMILL J: I am grateful to have had the benefit of reading the draft judgment of Macfarlan JA. It is unnecessary for me to revisit his Honour’s analysis of the evidence and facts of the case or to refer in any detail to the somewhat unusual procedural history of the litigation. The appeal raises important questions concerning the application of the principle of incontrovertibility to trial proceedings where there is more than one possible basis for an earlier acquittal. I have reached different conclusions to those of Macfarlan JA. The principle of incontrovertibility was not applied properly, or at all, in the proceedings at first instance and the applicant’s trial miscarried. The Prosecutor implicitly urged a finding that the applicant intended to inflict grievous bodily harm, and the jury was invited to determine the question of whether the applicant believed that her conduct was necessary to defend herself. At least one of those issues was resolved favourably to the applicant in the earlier proceedings. Even if the prosecution was entitled to prove one of those things on the second trial, it was not entitled to prove both.

3. [100]

   I would allow the appeal and quash the applicant’s conviction. I would make an order for a re-trial and allow the Director of Public Prosecutions to exercise their discretion as to whether the proceedings should be discontinued in the circumstances of the case. These are my reasons for those conclusions.

4. [101]

   I will refer to the trial conducted in 2015 before Adamson J as “the first trial” and, where the context requires distinction, I will refer to the jury which acquitted the applicant of murder but convicted her of manslaughter as “the first jury”. On the hearing of this appeal, it was common ground that there were two bases upon which the first jury may have reached its verdict of not guilty of murder but guilty of manslaughter.

5. [102]

   The first basis was that the jury was not satisfied beyond reasonable doubt that the applicant formed an intention to kill or inflict grievous bodily harm. At times in this judgment, and consistent with the language employed by Macfarlan JA, I will refer to this as a “murderous intent”. Accordingly, and on this basis, the mental element of murder was not established and the jury was required to consider the alternative verdict of manslaughter on the basis that the applicant caused Ms Sarkis’ death by an unlawful and dangerous act.

6. [103]

   The second possible basis of the first jury’s verdicts was that it was satisfied beyond reasonable doubt that the accused formed a murderous intent but not satisfied that the prosecution had excluded the possibility that the applicant believed her conduct was necessary to defend herself. That basis of manslaughter, usually described as manslaughter by excessive self-defence and now provided for in s 421 of the Crimes Act 1900 (NSW), [1] required the jury to be satisfied the applicant’s conduct was not a reasonable response to the circumstances as she perceived them. [2]

7. [104]

   In the second trial, the prosecution purported to put the case of manslaughter solely on the basis of manslaughter by unlawful and dangerous act. It is unnecessary to decide whether it was open to put manslaughter on the second basis – that is, manslaughter by excessive self-defence under s 421 of the Crimes Act. Generally, that form of manslaughter arises as an alternative where the accused person is charged with murder. The question of whether a substantive charge of manslaughter can be based on the provision of s 421 was mentioned in passing in the applicant’s submissions but was not ventilated in any detail. Because the case was not put in that way at trial, it is unnecessary to consider the matter further.

8. [105]

   In terms of the application of the principle of incontrovertibility to the second trial, the critical question concerns the findings inherent in, or flowing from, the verdict of not guilty of murder in the first trial. Those findings could not be controverted when the applicant was put in jeopardy on the second occasion.

9. [106]

   At the risk of repetition, but to refine the things said in the preceding paragraphs, there were two possible explanations for the acquittal on the murder charge in the first trial:

   1. (1)

      The first jury was not satisfied beyond reasonable doubt that the accused formed an intention to kill or inflict grievous bodily harm. Upon that finding, manslaughter by excessive self-defence would not arise and the only basis upon which the first jury could have convicted of manslaughter was by finding the applicant guilty of manslaughter by unlawful and dangerous act.

   2. (2)

      Alternatively, the first jury was satisfied beyond reasonable doubt that the accused formed a murderous intention, but was not satisfied that the prosecution had negatived the possibility that the applicant believed that her conduct was necessary to defend herself.

10. [107]

    Because there was more than one possible basis for the acquittal, the application of the principle of incontrovertibility to the second trial was more complex than it would be in the ordinary case. It was therefore unfortunate that the parties paid little or no attention to the issue until, towards the end of the trial, objection was taken to parts of the Prosecutor's closing address and the applicant made an application for discharge of the jury. Even at that critical stage, the trial Judge was not provided with any real assistance by reference to the authorities concerning the principles of incontrovertibility, finality, res judicata or double jeopardy. However, the submissions made by the applicant at trial – that the Prosecutor's address was essentially inviting the jury to make findings consistent with a murder charge – implicitly invoked those principles. Similarly, the prosecution’s election to put its case in the second trial solely on the basis of manslaughter by unlawful and dangerous act was a decision that may have been guided by the legal requirement that it was not permitted to controvert the findings inherent in the earlier acquittal for murder.

11. [108]

    Part of the applicant's submission to this Court was that the application of the principle of incontrovertibility required the Court to discern the basis of the first jury's verdict. This is no doubt correct to a point: see, for example, the judgment of Jacobs J in The Queen v Storey (1978) 140 CLR 364; [1978] HCA 39 at 407-410. In a case like The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55 where the issue at the first trial (for murder) was whether the accused caused the death of the victim, the operation of the principle to the subsequent trial (for perjury on that issue at the first trial) required the Court to have regard to the basis of the earlier verdict. Similar considerations applied in Storey where the issue in the first trial (for abduction) was consent and the conviction in the second trial (for rape) was quashed. However, it is one thing to discern the basis of an earlier acquittal in a case where there is a single issue. It is a quite different thing to attempt to divine the basis of a jury’s verdict in a case where there is more than one possible explanation for the earlier acquittal.

12. [109]

    In the present case, the Court was taken to the earlier judgment of the Court of Criminal Appeal and, in particular, to the observations of Hoeben CJ at CL and Button J in which their Honours expressed the view that the guilty verdict in relation to manslaughter was grounded in excessive self-defence: Abdallah v R [2016] NSWCCA 275. The opinions expressed by the members of the Court of Criminal Appeal accorded with the findings of the sentencing Judge. These observations are set out in the judgment of Macfarlan JA at [48] and [49] and can be found in the earlier judgment of this Court at [15], [16] and [44] (Hoeben CJ at CL) and [103]-[104] (Button J).

13. [110]

    I do not accept that it is for the trial Judge in a subsequent trial, or this Court on appeal, to determine the basis of the first jury's verdict when there were multiple issues and the case was put on alternative bases. There is an element of speculation in taking such a course no matter how cogent and logical the arguments in favour of one particular form of manslaughter may be. The fact that both paths to acquittal (for murder) were put to the jury establishes as a matter of legal certainty that it was open to the jury to reach its verdict by either route or on either basis: cf Storey at 409 (Jacobs J). The application of the principle of incontrovertibility to the second trial requires more precision and certainty than requiring the Court in those proceedings to attempt to determine what was in the mind of the jury that acquitted in the earlier trial.

14. [111]

    As to the application of the principle of incontrovertibility to a case where the first trial involved two possible bases for the acquittal, the arguments of the parties were diametrically opposed.

15. [112]

    The applicant submitted that if the Court could not determine the basis of the acquittal for murder by the first jury (and by corollary the basis of the guilty verdict for manslaughter) the principle applied in such a way that it could not be put in the second trial either (1) that the applicant had an intention to kill or inflict grievous bodily harm or (2) that the applicant did not believe that her conduct was necessary to do what she did in self-defence.

16. [113]

    Conversely, and at the other extreme, the implication behind parts of the respondent's submission was that the principle of incontrovertibility had no practical application in the second trial. As I understood the argument, it was submitted that because the basis of the first jury's reasoning was not known, it could not be suggested that a finding of murderous intent, or of an absence of a subjective belief that the applicant’s conduct was necessary in self-defence, controverted the findings inherent in the first verdict. This argument seemed to run contrary to the Prosecutor’s election to run the second trial solely on the basis of manslaughter by unlawful and dangerous act and his careful avoidance of a direct submission that the applicant acted with a specific intention to kill or inflict grievous bodily harm.

17. [114]

    At the hearing of the appeal, and in the context of the Prosecutor’s submissions at the trial that led to the application to discharge the jury, the learned Crown Advocate was asked whether it was open to the Prosecutor to submit to the jury that the applicant intended to inflict grievous bodily harm:

18. [115]

    That submission was repeated shortly thereafter:

19. [116]

    However, in the course of the argument that followed, Senior Counsel appeared to resile from those absolute negative responses. The refined submission seemed to be that, hypothetically at least, the Prosecutor could have submitted that the applicant formed a murderous intention but that could only be put on the basis that it was accepted that the applicant believed subjectively that her conduct was necessary:

20. [117]

    If those answers were correct, and I believe they were, I am unable to see how the respondent's arguments on this appeal can succeed. The respondent’s oral submission echoed the applicant’s written submission at [46]:

21. [118]

    The respondent placed considerable reliance on the judgment of Gleeson CJ and Hayne J in R v Carroll. In the passages relied on by the respondent, their Honours emphasised that the principle of incontrovertibility is closely related to, or based upon, the principle of finality in litigation. Whilst so much is accepted, the principle is also concerned with fundamental notions of fairness and justice and what is described in varying circumstances as "double jeopardy". In Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 McHugh, Hayne and Callinan JJ observed at 614:

22. [119]

    In earlier cases, the principle of incontrovertibility was couched in the language of “issue estoppel”: see for example, The King v Wilkes (1948) 77 CLR 511; [1948] HCA 22 and Mraz v The Queen (No 2) (1956) 96 CLR 62; [1956] HCA 54. In Storey the High Court held that the doctrine of issue estoppel is not applicable to the criminal law but applied the same kinds of principles as those earlier cases. Other High Court cases have applied similar principles: see, for example, Garrett v The Queen (1977) 139 CLR 437; [1977] HCA 67; Carroll; Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32.

23. [120]

    In Storey Mason J said at 396:

24. [121]

    And at 400:

25. [122]

    Jacobs J, having eschewed the language of issue estoppel in the preceding paragraph, said at 407:

26. [123]

    In the present case, if the first jury may have resolved the murder charge favourably to the applicant on the basis that it was not satisfied that the applicant had a murderous intent, it was contrary to those principles to allow the question of whether the applicant formed such an intention to be ventilated again in the second trial. Similarly, if, in acquitting the applicant of murder, the first jury was not satisfied beyond reasonable doubt that the prosecution had negatived the subjective aspect of self-defence, it was not permissible for the second jury to be called upon to revisit that question. So much appeared to be accepted by the respondent in the reformulated concession, set out at paragraph [116] above. That is, according to the submission, it may have been open to put to the jury that the applicant had an intention to kill or to inflict grievous bodily harm, provided the jury was directed that it must proceed on the basis that the applicant believed her conduct was necessary to defend herself. While the factual matrix is different, this accords with what Jacobs J said in Storey at 411:

27. [124]

    In the second trial, the jury was invited to consider both limbs of self-defence under s 418 of the Crimes Act. Relevantly, and putting aside the onus and standard of proof, the jury was invited to determine whether the applicant (subjectively) believed her conduct was necessary to defend herself. This issue was left to the jury both in the written directions and in the summing up. The jury was directed:

28. [125]

    If the reasoning of the original sentencing Judge and the Court of Criminal Appeal was correct and the first jury acquitted the applicant of murder on the basis that this subjective aspect of self-defence was not excluded, these directions allowed the finding of the first jury to be controverted.

29. [126]

    Further, while the Prosecutor was careful to avoid making a submission in terms that the applicant intended to cause grievous bodily harm (or really serious injury), the closing address invited the jury to make factual findings which could only be consistent with that specific intention. For example, the Prosecutor submitted:

30. [127]

    And:

31. [128]

    These and similar submissions were made ostensibly in the context of the Prosecutor putting arguments on the issue of whether the acts of the applicant were intentional and in rebuttal of self-defence. While these submissions may have been legitimate in a trial for murder, it was not open to put the argument in that way in a trial of manslaughter by unlawful and dangerous act in circumstances where the first jury may have resolved the issue of specific intention favourably to the applicant. The care with which the Prosecutor avoided the language of specific intention is indicative that he was conscious of the issue.

32. [129]

    Again, Jacobs J made relevant observations in Storey at 410:

33. [130]

    In the course of the Prosecutor’s address, counsel for the applicant raised an objection to the submissions and made an application for a discharge of the jury. In the course of dismissing that application, the trial Judge said “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”: R v Katherine Abdallah (No 5) [2017] NSWSC 1672 at [5]; see also the observations at [10]-[11]. It was not put directly that her Honour erred in the exercise of her discretion in declining to discharge the jury. But the sole ground of appeal against conviction asserted:

34. [131]

    The applicant’s written submissions asserted that the way in which the trial unfolded demonstrated that:

35. [132]

    Neither party assisted the trial Judge by suggesting that the jury should be directed in such a way to ensure that the acquittal for murder was not controverted. Submissions along those lines would have been particularly helpful in the circumstances as they unfolded and once the application for discharge was refused.

36. [133]

    The applicant submitted that the jury in the second trial should have been instructed that the applicant had been acquitted of murder in the previous trial. This submission was made in the context of an argument that it was necessary to instruct the jury that it was not permitted to reason in a way that was inconsistent with the applicant’s acquittal. The respondent submitted that there may have been sound tactical reasons why counsel appearing for the applicant at the second trial would not want the jury to know about the first trial. I accept that the jury required clear direction to ensure that the acquittal was not controverted but I do not accept that it was necessary for the second jury to know the details or result of the first trial. Whether it is appropriate to go into such detail will depend on the circumstances of the case: see, for example, Storey at 397 (Mason J). Even so, the second jury needed unambiguous guidance as to the reasoning processes that were permitted and those that were not. Clear directions needed to be provided but not necessarily by reference to the circumstances of the first trial or the fact that the applicant had been acquitted of murder.

37. [134]

    It was necessary to provide the jury with directions similar to those discussed by Dixon J (as his Honour then was) in Wilkes. In Wilkes the respondent faced trial on three counts namely (1) manslaughter of a Mrs Boulton, (2) conspiracy with Mrs Boulton and Mr Prior to procure the unlawful miscarriage of Mrs Boulton and (3) conspiracy with Mr Prior to defeat the course of public justice. A jury acquitted the respondent of the first two counts but convicted him of the third count. The Court of Criminal Appeal quashed the conviction and declined to order a re-trial. The prosecution sought leave to appeal to the High Court. At 518, Dixon J said:

38. [135]

    While Dixon J decided the case on the basis of an issue estoppel, an approach since eschewed by the High Court in criminal cases – see, for example, Storey – the directions endorsed by his Honour remain relevant and important in a case such as the present. Such a direction need not be subject to elaborate explanation and does not require the jury to be directed that the accused person was previously put to trial or acquitted of any particular offence.

39. [136]

    In the peculiar circumstances of the present case it was necessary for the jury to be directed that, as between the prosecution and the applicant, it was conclusively established that (i) the applicant did not act with an intention to inflict grievous bodily harm and (ii) that the prosecution could not exclude the possibility that the accused acted in the belief that it was necessary to do what she did in self-defence. At the very least, the jury should have been directed that it could not find both an intention to inflict grievous bodily harm and that the applicant did not believe her actions were necessary in self-defence.

40. [137]

    Similar considerations arose in Storey. In that case, the respondent was acquitted of forcible abduction and subsequently put to trial for rape based on the same evidence. The majority held that the evidence was admissible provided the jury was clearly directed to reason in such a way that the acquittal was not denied. Mason J (as his Honour then was) said at 396-397:

41. [138]

    Aickin J (with whom Stephen J agreed) came to a similar view, saying at 424-425:

42. [139]

    Jacobs J made similar observations at 408-409. For example, his Honour said:

43. [140]

    The issue of admissibility and directions discussed by the High Court in Storey also arose in the circumstances of the applicant’s second trial. The CCTV footage, and other evidence of the nature of the stabbing, was admissible provided the jury was properly directed (by the Judge) and not encouraged (by the Prosecutor) to reason in a way that was inconsistent with the earlier acquittal. I can see no reason why the trial Judge could not have directed the jury that it was not permitted to reason that the applicant formed an intention to kill or inflict grievous bodily harm or that she did not believe her conduct was necessary to defend herself. As I have said, it was not necessary to explain why the direction was given or to provide information about the first trial. The trial Judge could simply direct the jury clearly as to the reasoning process it could and, more importantly, could not, adopt. If further explanation was required, the trial Judge might have indicated that she is the Judge of the law and that the parties agree in the circumstances that such a direction was necessary and that the jury must follow that direction and not adopt either of the impermissible processes of reasoning.

44. [141]

    Macfarlan JA (at [60] and [73]) has pointed to the directions given to the jury, both in writing and in the course of the summing up, that emphasised that it was not necessary for the prosecution to prove an intention to kill or inflict grievous bodily harm. However, directing a jury in that way is not the same as advising the jury that it was forbidden, as a matter of law, from concluding that the accused formed a murderous intent. Rather, these directions left open the possibility that the jury could reason that the applicant formed an intention to kill or inflict grievous bodily harm while emphasising – correctly but, in the present context, irrelevantly – that the prosecution was not required to prove such a specific intention. If the jury (or some members of the jury) did approach the case on the basis that the applicant intended to kill or cause grievous bodily harm, the prosecution’s task of establishing that the applicant’s conduct was not a reasonable response in the circumstances became substantially easier. Further, such a finding controverted the acquittal for murder if the first jury was not satisfied that the applicant acted with a murderous intent. On the other hand, if the first jury was satisfied that the applicant acted with such an intention, the only possible basis for the acquittal was that the first jury was not satisfied that the prosecution had eliminated the possibility that the applicant believed her conduct was necessary in self-defence. That issue was also left to be determined by the second jury.

45. [142]

    Even allowing for the possibility that it was open to the prosecution to prove one of those things on the second trial, it was not entitled to prove both: Storey at 411; and see the respondent’s concession set out at [116] above.

46. [143]

    It follows that I am unable to agree with the conclusion of Macfarlan JA at [63] that the cases to which his Honour refers establish that “the principle of incontrovertibility will not be infringed unless the person relying upon it can demonstrate that the issue in question has in fact been determined earlier.” I do not accept that the applicant is attempting to “side-step” the opacity or inscrutability of the first jury’s verdict of acquittal. Rather, she is attempting to ensure that her acquittal is “recognized fully and without qualification for all purposes in criminal proceedings”: Storey at 396.

47. [144]

    The question that divides Macfarlan JA and me concerns a fundamental issue about the application of the principles described variously in the authorities as res judicata, incontrovertibility, double jeopardy and, in earlier cases, issue estoppel. The question arises in such unusual circumstances that Senior Counsel for the applicant described the case as an “outlier”. [8] The issue concerns the operation of the relevant principles in cases where an earlier acquittal is explicable on more than one basis. The conclusion reached by Macfarlan JA is that the later verdict does not controvert the earlier one if the basis of the verdict cannot be determined conclusively. I prefer to approach the matter on the basis that the prosecution at a subsequent trial cannot put a case that may controvert or contradict the earlier acquittal. Neither party drew the Court’s attention to any past authority where this specific issue was considered or decided. However, my conclusion is consistent with the observations of Jacobs J in Storey including where his Honour said at 409:

48. [145]

    See also his Honour’s comments at 410-411 that the prosecution could not attempt to prove both that the complainant was taken from the railway station against her will and that at that time the accused had an intention to have sexual intercourse with her. It could prove one or other, but not both.

49. [146]

    The respondent referred to this Court’s decision in Restricted Decision [2019] NSWCCA 124 and to the discussion of the statement of Barwick CJ in Garrett at 445 that an “acquittal may not be questioned or called into question by any evidence which, if accepted, would overturn or tend to overturn the verdict.” The Restricted Decision is of no assistance in considering the present case. The applicant does not rely on any “broader principle” than those that are well established by cases such as Mraz, Storey, Carroll and Sio. Further, the application for a stay of proceedings in Restricted Decision was based on the decision of a Magistrate in circumstances where the reasons for the earlier acquittal were transparent.

50. [147]

    While the trial Judge was not asked to give directions such as those I have concluded were necessary, I agree with Macfarlan JA that it is inappropriate to invoke rule 4 of the Criminal Appeal Rules 1952 (NSW). Counsel for the applicant at trial raised an objection to the Prosecutor's address and sought a discharge of the jury on the basis of that address. Further, the case raises important questions about the application of fundamental principles. The applicant should have leave to appeal if necessary. On the other hand, no criticism of the trial Judge is justified in circumstances where the parties at trial did not turn their collective minds in any meaningful way to the issues ventilated on this appeal. Her Honour was guided by the approach taken by counsel and nobody suggested after the application for discharge was refused that directions in accordance with those contemplated by the High Court in Wilkes or Storey should be given. Even so, the trial miscarried in a fundamental respect and it is not an appropriate case to refuse leave pursuant to rule 4 or to apply the proviso on the basis that there was no substantial miscarriage of justice.

51. [148]

    While I have some sympathy for the applicant's argument that the Court should not order a re-trial, I do not accept that this is a case where the Court would enter a verdict of acquittal. The case was a reasonably strong one and the sentence is yet to expire. While much of the sentence has been served and a re-trial would represent the third time the applicant has been put in jeopardy, these are matters properly left to the discretion of the Director of Public Prosecutions to determine whether to continue or discontinue the prosecution of the applicant.

52. [149]

    In view of my conclusion that the conviction cannot stand, it is unnecessary to consider the application for leave to appeal against sentence.

53. [150]

    For those reasons I favour the following orders: –

    1. (1)

       To the extent necessary, grant leave to the applicant to appeal.

    2. (2)

       Allow the appeal against conviction.

    3. (3)

       Quash the verdict of guilty to manslaughter.

    4. (4)

       Order that there be a new trial.

    5. (5)

       The matter is listed for mention in the Supreme Court Arraignments List on 14 February 2020 or such other date as directed by the Criminal List Judge.