Abdallah v R

HOEBEN CJ at CL:

On 23 February 2015 the applicant was found not guilty of murder but guilty of manslaughter (s 24 Crimes Act 1900 (NSW). The maximum penalty for that offence is imprisonment for 25 years.

On 8 May 2015 the applicant was sentenced to imprisonment for 11 years commencing 8 December 2014 and expiring 7 December 2025, with a non-parole period of 8 years and 3 months expiring on 8 March 2023.

The applicant was sentenced on the basis that she possessed the requisite intent for murder, believed that her conduct was necessary but that the act causing death was an unreasonable response to the perceived circumstances (i.e. excessive self-defence).

The applicant has appealed against her conviction and has sought leave to appeal against the sentence.

The deceased was the applicant’s cousin. At the time of the deceased’s death the two women had been living together in a townhouse owned by the applicant at Brighton-le-Sands. The deceased had moved out of her parents’ house to live permanently with the applicant at the end of 2012, i.e. five or six weeks before her death.

The applicant had on 29 January 2013 caused a CCTV device to be installed in the lounge and dining room areas of the townhouse. Footage from that device was tendered at trial and depicted the applicant’s infliction of a single knife wound to the torso of the deceased after a physical altercation between them.

The knife penetrated about 7-10cms into the deceased’s chest puncturing her right lung causing cardiac arrest following oxygen build up in the chest cavity outside the lung. Blunt force head injury and cocaine ingestion were contributory causes. The cocaine ingestion rendered the deceased more prone to cardiac arrest. There was no issue at trial as to cause of death.

Exhibit D comprised the CCTV material and depicted the events leading up to the death of the deceased commencing at 5.51pm on Saturday 9 February 2013. Exhibit D also contained audio material commencing from a point following the collapse of the deceased when the applicant rang triple 0. There were two cameras and on occasion the same event is shown from two different angles.

The CCTV material depicts an argument between the two women, after the deceased smashed a vase onto the floor. In the course of that argument, the deceased attacked the applicant in the lounge area, punching her and pushing her to the ground. The applicant was punched in the head and body and was kicked while on the ground. The deceased then moved away from the applicant and a short delay ensued while the applicant regained her feet. The applicant then attacked the deceased and although partly obscured, appeared to push her down onto a chair. Much of that struggle occurred off camera. Towards the end of that episode, the applicant picked up a four pack of V-drink and struck the deceased on the forehead.

The applicant then moved quickly into the kitchen and took two large knives from a knife block. The applicant turned towards the deceased who slowly walked towards her with her hands by her side. The applicant is shown to wave the knives at the deceased twice and then stab her in the chest with the knife in her left hand. The applicant ran from the kitchen. The deceased collapsed onto a table, took four or five steps in the direction of the front door, before collapsing on the floor of the lounge room. The applicant rang triple 0 at 6.02pm and provided her address and phone number. She was shouting loudly and hysterically but hung up when the operator asked her for a second time what had happened. The operator called the applicant back at 6.04pm at which time the applicant was still acting in a highly emotional way. The audio from this telephone call was superimposed onto Exhibit D.

It was common ground that during the course of those phone calls the applicant told various lies about what happened and the identity of the offender. At one point while talking to the operator the applicant cleaned and put away the knives but told the triple 0 operator that she was administering CPR to the deceased. The applicant repeated the lies to ambulance officers and later that night to police. When she was informed that police had watched the CCTV footage, she said that she had acted in self-defence. The applicant did not participate in an ERISP, nor did she give evidence at trial. The applicant gave evidence in the sentence proceedings.

By way of further background, there was evidence of recent hostility between the women. The cause seemed to be that the deceased, who was unlicensed, had taken the applicant’s Mercedes on Friday evening (8 February) and had been detected at 10.30pm by Highway Patrol officers travelling at 112kms in a 60km zone. When this was reported to the applicant by police (the deceased having driven away from police after being lawfully stopped by them) she told the police “She’s going to be in serious trouble when I get her. You guys will probably be called back.”

Context evidence was adduced of earlier recent physical altercations between the women to establish the applicant’s state of mind at the time of the act causing death. This evidence included events at the premises earlier on the day of the deceased’s death and at Crawford Road in the afternoon of that day after the deceased had again taken the applicant’s car without her permission. The women became involved in a physical fight in Crawford Road which was witnessed by a number of people. This arose from the applicant’s anger at her vehicle being again taken without her permission.

Although manslaughter by unlawful and dangerous act went to the jury, the principal issue at trial was self-defence. Both the Crown and counsel for the applicant opened on this basis. Closing addresses also focused on self-defence and her Honour identified this as the principal issue.

Written directions on the standard of proof and onus were provided, as were written directions on the elements of murder, self-defence, excessive self-defence, provocation and manslaughter by unlawful and dangerous act. Drafts of these directions were provided to counsel during the trial and approved by them (MFIs 23 and 26).

MFI 23 as finally provided to the jury was in the following terms. The direction in relation to provocation has been left out since it played no part in the appeal. It should be noted that in the summing up, her Honour’s oral directions were in almost identical terms to MFI 23.

The parts of MFI 26 relevant to this appeal were:

In her Honour’s summing up she said the following about lies as evidence of consciousness of guilt:

Her Honour’s directions as to the elements of murder, self defence, excessive self-defence, provocation and manslaughter by unlawful and dangerous act are set out at [181] – [195] of her summing up. As indicated above, the directions so given were in identical terms to MFI 23. In her summing up, her Honour gave additional directions as follows. These were similar to the directions at [13] and [14] of MFI 26.

The relevant sections of the Crimes Act 1900 (NSW) (the Act) under consideration in the appeal were:

The applicant submitted that under s 418 a person is not guilty of the offence of murder if the act causing death was done in self-defence. The applicant submitted that unless some other separate and lesser basis is put for involuntary manslaughter (i.e. unlawful and dangerous act manslaughter) then if self-defence is not excluded on murder, the person is entitled to an outright acquittal. She submitted that acquittal for murder was open either because the jury had a doubt attaching to the mens rea for murder or a doubt as to whether the Crown had negatived self-defence.

The applicant submitted that there were significant errors in the written directions provided at trial and that these misdirections were largely replicated in the oral directions. The applicant identified the same error in [5], [8] and [10] of MFI 23.

In [5] the applicant submitted that the third sentence “If you decide that the Crown has failed to prove at least one of them beyond reasonable doubt, then the appropriate verdict is one of “not guilty of murder” but you need to consider the alternative verdict of manslaughter” was wrong. She submitted that if the Crown failed to eliminate self-defence she was entitled to an acquittal and there was no need to consider “excessive self-defence” manslaughter. She submitted that the same error was replicated in [8] which stated “Where the Crown has failed to prove (iii), manslaughter by excessive self-defence is to be considered”. She submitted that the same error occurred in [10].

The applicant submitted that these directions were incongruous and clearly wrong and were repeated in the oral directions at [188] and [190] of the summing up.

In support of that proposition, the applicant relied upon Sio v The Queen [2016] HCA 32; 90 ALJR 963. That case concerned an accused who was acquitted of murder but convicted of armed robbery with wounding. The High Court held that his conviction for armed robbery with wounding was unreasonable because it was inconsistent with his acquittal on the charge of murder. This was because both offences had as an element that the accused foresaw the possibility that the victim might be wounded by the use of a knife. His acquittal of murder meant this element must have been decided by the jury in his favour which meant that he could not be convicted of armed robbery with wounding. This rendered the verdict unreasonable.

The applicant submitted that her Honour’s impugned directions contained error because if the Crown had failed to eliminate self-defence in a charge of murder, the jury must have found in her favour that she did believe at the time of the stabbing that it was necessary to do what she did in order to defend herself, and that the stabbing was a reasonable response in the circumstances as she perceived them, or had a reasonable doubt about whether the Crown had excluded those matters. It was therefore not open to then require the jury to again consider the issues raised by “excessive self-defence” because those matters had already been decided in her favour. She submitted that the fact that the jury had acquitted her of murder implicitly meant that the issue of excessive self-defence had been decided in her favour and by analogy with the decision in Sio v The Queen, it was not open to require the jury to consider that issue again.

The applicant submitted that [11] of MFI 23 contained error in that it was not only incongruous that the jury was asked to revisit an issue already decided in her favour but the direction in [11(iii)] introduced the idea of something less than “excessive force”, i.e. force which was “otherwise unreasonable”. She submitted that this expanded the scope of excessive force to something else which was “otherwise unreasonable”. The applicant submitted that there was a misstatement of onus and standard in [11(ii)] by the use of the phrase “reasonably possible” rather than the standard of “beyond reasonable doubt”.

The applicant submitted that her Honour’s directions on “unlawful and dangerous act” manslaughter identified “the stabbing” as the unlawful act. This was the same act as that identified on the murder charge. She submitted that the “stabbing” would have had to have been done absent intent to cause death or serious harm. She submitted that such an approach was inconsistent with the manner in which her Honour articulated the Crown case on this subject in her summing up ([208]). There the act identified was said to be “brandishing/using the knives”. The applicant submitted that brandishing a knife was a significantly less serious action than stabbing by a deliberate act and was far less easy for the Crown to establish as being done, absent self-defence. The applicant noted that the written directions made no mention of such an issue.

The applicant submitted that although the direction at [14] in MFI 23 stated that a “relevant act” was unlawful if “not done in self-defence”, the conduct amounting to self-defence in the context of manslaughter was not otherwise explained in the written directions. She submitted that this was quite inadequate to bring home to the jury the element of excluded self-defence on manslaughter. She submitted that whatever the “relevant” act was, it could not be done with intent to kill or cause grievous bodily harm and as a result, it was much more difficult for the Crown to prove that this act was not done in self-defence. This was particularly so if the “unlawful act” was the brandishing of the knife or knives, rather than the act of stabbing.

In summary, the applicant submitted that there were a number of significant errors in the way critical subjects were left for determination by the jury. Most particularly, manslaughter by excessive “or unreasonable” force was left for the jury to consider (again) after they had already acquitted of murder based on self-defence. In raising these issues the applicant appears to have been relying upon the first limb of s 6(1) of the Criminal Appeal Act 1912 (NSW) and asserting that these errors constituted a miscarriage of justice.

The Crown accepted that s 418 absolved an accused of criminal responsibility if the Crown failed to establish to the criminal standard that (a) the person did not believe the conduct was necessary and (b) the conduct was not a reasonable response in the circumstances as he or she perceived them. It submitted that s 421 operated where the jury was satisfied that a subjective element was present (belief in the necessity of the conduct) but was also satisfied beyond reasonable doubt that the conduct was not a reasonable response in the circumstances as the accused perceived them. Criminal liability for manslaughter by excessive self-defence became attached by force of, and in the circumstances described in s 421, specifically by s 421(2) – a person is not criminally responsible for murder but is to be found guilty of manslaughter if the circumstances in s 421(1) exist. The Crown submitted that liability under s 421 is not expressed to be dependent on s 418. It depended on the matters set out in s 421 being satisfied and a consideration of s 418 was not a pre-condition to a consideration of s 421.

The Crown submitted that there was no constraint on the jury considering guilt on an alternative count before they arrived at a verdict on the principal count. The Crown submitted that the only constraint on the jury considering alternative counts related to the order in which their verdicts are delivered. The jury could not deliver a verdict on an alternative count unless they had first acquitted the accused of the principal count (Stanton v R [2003] HCA 29; 77 ALJR 1151; Vo v The Queen [2013] VSCA 225; 39 VR 543).

The Crown submitted that there were two routes to manslaughter – voluntary manslaughter by operation of s 421 or involuntary manslaughter in the event that the jury were not satisfied of the mental element for murder. It submitted that it was not possible to determine the basis of the verdict in this case notwithstanding that her Honour sentenced on the basis of excessive self-defence manslaughter. The Crown submitted that the verdict of acquittal of murder did not indicate that the jury accepted both the subjective and objective limbs of the test of self-defence. The jury could have acquitted of murder because they were not satisfied of the mental element or on the basis of excessive self-defence, pursuant to s 421(2).

The Crown challenged on a number of bases the applicant’s primary submission that if the Crown failed to establish beyond reasonable doubt element [1(iii)] in MFI 23, she was entitled to an acquittal, subject “only” to another lesser case based on unlawful and dangerous act manslaughter. The Crown submitted that the submission failed to acknowledge that the consideration of element [1(iii)] required consideration of both s 418 and s 421 and that was the effect of the directions given in MFI 23 [5], [8] and [10]. The Crown submitted that the applicant’s argument also failed to accommodate the terms of s 421 which provided that a failure to prove the objective limb of the “defence” of self-defence results in an acquittal for murder and guilty of manslaughter. The Crown submitted that in this case the verdict of not guilty of murder did not indicate that the jury accepted both the subjective and objective limbs of the test for self-defence. To the extent that it was based on self-defence (rather than a failure to find murderous intent), the verdict was an acquittal by virtue of the operation of s 421(2).

The Crown submitted that it was implicit in the applicant’s submission that the jury were required to reason through the possible verdicts sequentially, i.e. s 418 before considering s 421 (contrary to Stanton v R). The Crown submitted that the applicant’s submission failed to recognise that the Act clearly contemplated that where the Crown establishes that the accused’s response was not reasonable in the circumstances as the accused perceived them, the accused was liable for manslaughter and not murder. The Crown submitted that on the applicant’s reasoning, s 421 would rarely, if ever, be enlivened. The Crown noted that no authority was cited by the applicant in support of this submission, which failed to engage with the scheme of the legislation or with precedent, and should be rejected. The Crown submitted that her Honour’s directions properly instructed the jury as to the operation of both ss 418 and 421 and that no error was demonstrated.

The Crown submitted that the applicant’s challenge to the direction in [11(iii)] of MFI 23 was not made out. It submitted that both ss 418 and 421 described the objective limb of self-defence as conduct that was “a reasonable response in the circumstances”. It submitted that this was picked up in the written directions. It submitted that the word “excessive” is found in the heading to s 421 and is commonly used to describe the partial “defence” (e.g. Grant v R [2014] NSWCCA 67 at [65]). The Crown submitted that the addition of the phrase “otherwise unreasonable” in the direction must be read subject to the preceding phrase “not a reasonable response in the circumstances as she perceived them because …”

The Crown submitted that the direction in [11] needed to be considered in light of the evidence and the issues raised at trial (Doggett v The Queen [2001] HCA 46; 208 CLR 343 at 346). The Crown submitted that the question for the jury was clear – was the applicant’s act of stabbing the deceased (an act which was caught on CCTV and which the jury watched) – a reasonable response in the circumstances as she perceived them. The Crown submitted that in the circumstances the direction did not introduce some other lesser standard to the statutory test and the submission should be rejected.

In relation to the applicant’s submission that the onus and standard of proof were misstated in [11(ii)] of MFI 23, the Crown submitted that this was of little significance because the jury could only have reached the direction on excessive self-defence if they were not satisfied beyond reasonable doubt that the applicant did not believe that her conduct was necessary to defend herself as properly directed at MFI 23 [4(a)]. The Crown submitted that the formulation in [11(ii)] arguably conveyed a lower standard of proof than required. This was significant because it was a direction, the satisfaction of which was sufficient for a lesser verdict (manslaughter not murder), rather than necessary for conviction (discussed in Hadchiti v R [2016] NSWCCA 63 (decision restricted) at [107]. Lastly, the Crown submitted that this was the only part of the summing up which it could be argued departed from the traditional expression of onus and standard of proof. It submitted that the jury were repeatedly instructed, both orally and in writing, that the burden of proof lay with the Crown to the criminal standard. This was to be contrasted with the directions in Hadchiti which used an unorthodox formulation in six out of eight written questions provided to the jury. The Crown noted that in Hadchiti the court had not accepted the proposition that the impugned formulation reversed the onus of proof.

The Crown challenged the applicant’s submission that the oral direction at [208] of the summing up was wrong because it identified the relevant unlawful and dangerous act as the brandishing of knives whereas the written direction in MFI 23 identified the unlawful and dangerous act as the stabbing of the deceased. The Crown submitted that this submission was not made out because both the oral direction on unlawful and dangerous act (at [193]) and the written direction identified the relevant unlawful and dangerous act as the stabbing of the deceased. The Crown submitted that the reference by her Honour to the brandishing of knives at [208] was made in the course of recounting the Crown address on excessive self-defence not unlawful and dangerous act manslaughter.

In relation to the applicant’s challenge to [14] of MFI 23 concerning the concept of unlawfulness (in unlawful and dangerous act manslaughter), the Crown submitted that the direction was not inadequate because it failed to “bring home the element of excluded self-defence on manslaughter”. The Crown submitted that this submission was not made out because the direction stated:

In Filippou v The Queen [2015] HCA 29; 256 CLR 47 the plurality (French CJ, Bell, Keane and Nettle JJ) restated the function of this Court under s 6(1) of the Criminal Appeal Act 1912 (NSW):

In Smith v R [2015] NSWCCA 193 Simpson JA described the way in which a jury might reason to a verdict of manslaughter by excessive self-defence. The verdict in that matter was the same as in this matter, i.e. not guilty of murder but guilty of manslaughter. How the jury reasoned to that result was, of course, not known. Although Simpson JA made her observations in the context of a sentence appeal, her analysis is of assistance. The directions of Adamson J did not set out the reasoning in this way but the jury may well have reasoned to their verdict in this way. Simpson JA relevantly said:

In the present case we do not know on what basis the jury acquitted the applicant of murder. The process of reasoning set out by Simpson JA in Smith was well open to the jury on the directions which were given. There is nothing to suggest that they behaved illogically or unreasonably by rejecting self-defence under s 418 but then finding in favour of the Crown under s 421. The opacity of the jury’s reasoning process in this case distinguishes it from what occurred in Sio v The Queen. There, by a process of elimination, it was clear that the acquittal by the jury of murder carried with it an acquittal on the lesser charge of armed robbery with wounding.

It would appear to be uncontroversial that excessive self-defence under s 421 is not a new species of manslaughter but is a category of voluntary manslaughter. That is clear from the terms of s 421(2) – an accused is not criminally responsible for murder but on a trial for murder, the person is to be found guilty of manslaughter – so liability is clearly connected to and derivative from the asserted initial antecedent liability for murder. Nevertheless the presence of s 421 in the Act does place the offence of murder in a special category compared to other offences when considering self-defence.

Implicit in the applicant’s submissions is the assumption that the jury must consider s 418 before considering s 421 and that is why her Honour’s directions in [5], [8] and [10] of MFI 23 were in error. That is certainly one way of approaching such consideration but it is not the only way and it is not mandatory. The flexibility of a jury in how they approach such matters was made clear in Stanton v R and Vo v The Queen.

In its terms, s 421 does not require the jury to have proceeded through the gateway of s 418 before considering s 421. Although her Honour’s impugned directions deal with s 418 before considering s 421, nowhere in those directions does her Honour require the jury to have followed that sequence. On the contrary, at [13] of MFI 26 and at [220] of the summing up when dealing with alternative verdicts, her Honour made it clear that it was a matter for the jury as to how they approached their task in determining their verdict. It is fully consistent with her Honour’s directions that the acquittal for murder was found as a result of excessive self-defence pursuant to the operation of s 421(2), rather than by reason of the jury having found both of the requirements for the full defence of self-defence.

A difficulty with the applicant’s submissions on this issue is how the jury would have got to s 421 if they first had to proceed through the s 418 gateway. The applicant’s sequential approach, i.e. dealing with s 418 before s 421, would conceivably leave s 421 with little work to do. The better approach in a case such as this where self-defence was the primary consideration is for the jury to consider the reasonableness of the response at the same time for the purposes of both s 418 and for s 421. If the jury find belief and that it was a reasonable response, a full acquittal is the result. If they find belief but that it was not a reasonable response, then excessive self-defence is in play and the partial defence is established. That approach is consistent with her Honour’s directions at [5], [8] and [10] of MFI 23.

Alternatively, if the correct approach is to deal with ss 418 and 421 sequentially, there is clearly error in her Honour’s directions at [5], [8] and [10] of MFI 23. It is an error, however, which if the directions were followed, would not produce a miscarriage of justice nor would the error have deprived the applicant of a chance of acquittal that was fairly open to her.

This is because if the jury found that the Crown had failed to eliminate either limb of self-defence, which is the precondition in the third sentence of [5] of MFI 23, and went on to consider excessive self-defence under s 421, they should logically have reasoned “Why are we considering this issue again when we have already made a decision about it?” You would expect a jury to reason “We’ve already found that neither limb of self-defence has been eliminated by the Crown so we don’t need to consider again whether we are satisfied that the stabbing was an unreasonable response” or in the alternative, “We’ve already found the Crown has established beyond reasonable doubt that the stabbing was an unreasonable response so we don’t need to consider that again”. In other words, the result would be the same. There is no basis for the applicant’s assumption that the jury was likely to or must have reached a different conclusion when considering the s 421 issue to that which they had already reached in relation to s 418.

The fact that the jury found the applicant guilty of manslaughter on the particular facts of this case is strongly suggestive that if they considered ss 418 and 421 sequentially, they found the subjective test as to belief in favour of the applicant but found in favour of the Crown on the reasonable response question. If that was their process of reasoning, there is no basis to suggest that when they came to consider s 421 they would have reached any different conclusion on the identical question. Accordingly, although the directions were erroneous they would not have been productive of a miscarriage of justice.

It is necessary to look at the directions as a whole. Their effect, taken as a whole, is to include in the concept of self-defence not just self-defence under s 418, but excessive self-defence under s 421 so that both ss 418 and 421 were under consideration. The directions clearly set out the two requirements of belief and reasonableness and direct the jury that if both were satisfied then that is a full defence and must result in an acquittal. If only the belief is satisfied and reasonableness is not, then s 421 operates to require a verdict of manslaughter. It seems likely from the verdict that the jury were satisfied beyond reasonable doubt of the unreasonableness of the stabbing. This is particularly so when one has regard to Exhibit D, the estimate of the depth of the wound and its location. Somewhat unusually for cases of this kind, Exhibit D graphically shows the detail of how the death of the deceased came about. Given what is depicted on Exhibit D, it is difficult to see how any reasonable jury could possibly fail to be satisfied beyond reasonable doubt that stabbing the deceased was not a reasonable response by the applicant in the circumstances, as she perceived them, because the particular use of force by her was excessive. It follows that no miscarriage of justice has occurred and there has been no departure from trial according to law.

While there may be some logical inconsistencies in a literal application of the directions, regard has to be had to their total effect. It is also necessary to have regard to the issues at trial. It is not without significance that defence counsel barely said a word about intent. His submissions were directed to self-defence. This was also the focus of the Crown submissions. Similarly, the jury could have been under no illusion as to what they were to be satisfied of, or what the Crown had to prove to eliminate the full defence and also for the partial defence. They were not required to reason through them in a piecemeal way. The likely explanation for the verdict is found in the operation of s 421(2). It follows that the directions did not involve a miscarriage of justice nor deprive the applicant of the chance of a complete acquittal which was reasonably open to her.

If one accepts that ss 418 and 421 do not have to be approached sequentially but can be looked at together, or that s 421 can be considered separately, the erroneous directions do not produce a miscarriage of justice. Even if the directions were erroneous so that ss 418 and 421 had to be approached sequentially, as a matter of common sense and logic if the jury had once failed to be persuaded that the applicant’s response was unreasonable there was no basis for submitting that they must or may have reached a different conclusion on that question when considering s 421 as the directions required. It follows, therefore, that on either approach the applicant was not subject to a miscarriage of justice.

The other matters raised by the applicant under this ground of appeal have been largely dealt with by the Crown in submissions. In that regard, the submissions of the Crown at [37] – [41] hereof should be accepted. It is clear that the applicant’s challenge to [11(ii)] of MFI 23 is in conflict with the observations in Hadchiti v R and also the decision of the majority in Moore v R [2016] NSWCCA 185.

The availability of self-defence as a defence to manslaughter as well as murder was dealt with appropriately by her Honour at [12] and [14] of MFI 23 and in her summing up which replicated those directions.

Ground of Appeal 1 has not been made out.

The applicant accepted that, with the exception of the suggested lie to investigating police that there were no CCTV cameras in the townhouse, there was no issue between the parties as to the fact that lies were told, as asserted by the Crown. There was no issue that the conduct of cleaning the knives took place during the applicant’s telephone conversation with the triple 0 operator. The complaint by the applicant is however twofold. The first is that when giving directions about the possible innocent explanation for the applicant’s conduct, her Honour failed to stress that the applicant’s concern was that she would be wrongly implicated in the offending. The applicant submitted that the way in which the directions were given merely referred to the fear of the applicant that the lies and actions would implicate her without the important qualification of such implication being “wrong”.

The second submission was that it was not clear from the directions how the lies and conduct could be related to the actual offending in circumstances where their occurrence was not in dispute. In that regard, the applicant submitted that the jury should have been told that the lies and conduct were of very minimal probative value. This is particularly so when they could not be used to distinguish murder from manslaughter. The applicant submitted that at most, the lies and conduct could only be implied admissions of some general wrongdoing.

This ground of appeal is not made out. When one looks at [11] and [12] of MFI 26 her Honour covered the issue raised by the applicant by offering an innocent explanation of the lies and conduct “such as panic or to protect herself against an unjust accusation”. Similarly, at [116] of the summing up, her Honour set out the applicant’s response to these lies and conduct as: “The defence case in relation to this issue is that the accused was in a state of panic and was at times hysterical. She believed that she would be unfairly blamed for the injury to the deceased …”. At [117] of the summing up her Honour observed:

In relation to the applicant’s second point, it is appropriately answered by the following directions in her Honour’s summing up:

It is clear that the directions on lies and other conduct appropriately addressed the issues before the jury and identified the limitations on how the evidence could be used.

This ground of appeal raises the same issue as Ground of Appeal 1. It relies upon the proposition that because the jury acquitted the applicant of murder it must have determined favourably to the applicant the reasonableness of her conduct and so she was entitled to the same finding on the issue of manslaughter by excessive self-defence. It was on this basis that the applicant submitted that the verdict was unreasonable. The applicant submitted that had the jury not been erroneously invited to reconsider excessive self-defence, the applicant would have been entitled to an outright acquittal.

As an alternative, the applicant submitted that having regard to Exhibit D, had the jury found the applicant guilty of involuntary manslaughter, i.e. manslaughter by an unlawful and dangerous act, such verdict would have been unreasonable because it was not open to the jury to find beyond reasonable doubt that the applicant’s act in stabbing the deceased was an unlawful and dangerous one. The applicant submitted that a reasonable person in her position in the circumstances depicted by Exhibit D would not have realised that the deceased was being exposed to an appreciable risk of serious injury.

The applicant submitted that Exhibit D established that the jury ought to have entertained a doubt in respect of her response in the context of an unlawful and dangerous act.

With due respect to the alternative submission of the applicant, I find the submission surprising. The depth and location of the wound tend strongly against the applicant’s submission. Most importantly what is depicted in Exhibit D is that after two episodes of violence, one initiated by the deceased and the other by the applicant, when the deceased approached the applicant in the kitchen, the applicant not only waved the knives at her but stabbed her.

Taking those matters into account and having watched Exhibit D on a number of occasions, I have no difficulty in finding that it was open to the jury to find beyond reasonable doubt that the applicant’s conduct involved a deliberate act on her part and that her act of stabbing the deceased was an unlawful and dangerous one. For the jury to have made any other finding would be perverse.

In relation to the applicant’s primary submission under this ground, which raises the same issue as Ground of Appeal 1, there is no need to make any further response than has already been set out in relation to that ground. In short, Sio v The Queen was a very different case to this one. It does not necessarily follow from the jury’s acquittal of the applicant on the charge of murder that a consideration by them of manslaughter by excessive self-defence was foreclosed because they had already made a finding on this issue in her favour.

For the reasons set out in relation to Ground of Appeal 1 and above, this ground of appeal has not been made out.

In relation to the conviction appeal, the orders which I propose are that leave to appeal be granted but that the appeal be dismissed.

Because mine is a minority opinion, it is not necessary to deal with the application for leave to appeal against sentence.

CAMPBELL J: I have had the considerable advantage of reading in draft the judgments of Hoeben CJ at CL and Button J. As they differ on Ground 1 in relation to the self-defence misdirection, and accordingly in relation to the disposition of the appeal, I wish to explain my decision about this. At the outset I record that I agree with what Hoeben CJ at CL has written about Grounds 2 and 3. I also agree that in the circumstances it is unnecessary to consider the question of sentence.

Self-defence was the central issue at the trial and the question was whether the Crown had proved beyond reasonable doubt that the appellant did not stab the deceased in self-defence. I agree with Hoeben CJ at CL and Button J that, with respect, the learned trial judge misdirected the jury as to the law that was necessary for the jury to apply in deciding this issue. I think it should be pointed out that her Honour’s written and oral directions on self-defence accorded perfectly with the suggested direction in the Criminal Trials Bench Book at [6 – 460] as it stood at the date of the trial. Given the unanimous view of this Court that suggestion must be taken to have been legally inadequate. It has now been corrected (see [6 – 465]).

In my view, Ground 1 is a ground which involves a question of law alone and leave to appeal is not required: s 5 Criminal Appeal Act 1912 (NSW). As Hoeben CJ at CL’s discussion of Filippou demonstrates, this involves the second limb of s 6(1) of the Act. The misdirection is a “wrong decision on [a] question of law” because it is a misdirection on a matter of substantive law concerning the law of self-defence as it applies in murder cases. The settled interpretation of s 6(1) is that the expression “miscarriage of justice” where it first appears in the sub-section qualifies each of the limbs of s 6(1), not only the third limb: Weiss v the Queen (2005) 224 CLR 300 at 308 [18]; Filippou at 54 [13].

Hoeben CJ at CL has decided that the error does not involve a miscarriage of justice. In those circumstances, it was unnecessary for his Honour to consider the operation of the proviso.

Filippou makes clear that the expression “miscarriage of justice” where it first appears in s 6(1) means “a departure from trial according to law” (at 54 [13]); Weiss at 308 [17] – [18] is footnoted). The passage cited from Weiss makes clear that the meaning of the expression is derived from the “old Exchequer rule”: “any departure from trial according to law regardless of the nature or importance of that departure” would suffice to justify a re-trial (original emphasis). The proviso in the common form criminal appeal statute ameliorates the strictness of the old rule by requiring the dismissal of the appeal where, error notwithstanding, no substantial miscarriage has occurred.

If my understanding of these matters is correct, the failure of the learned trial judge to direct the jury that to eliminate self-defence as an issue in a murder trial (MFI 23 [5]) the Crown must negative by proof beyond reasonable doubt both (not either) of the elements of self-defence was such a departure from a trial according to law. This being so, the appellant’s Ground 1 was made out without more, subject only to the consideration of the proviso.

In Filippou at (55 [15]), French CJ, Bell, Keane and Nettle JJ said:

At the risk of being tedious, I think it instructive to set out the following passages from Weiss (at 313-4 [34]-[35]; and 315-6 [39]-[40]):

As French CJ, Gummow, Hayne and Crennan JJ said in Baiada Poultry Pty Ltd v the Queen (2012) 246 CLR 92; [2012] HCA 14 at 104 [29]:

Considering the evidence at trial, including the fact of the jury’s verdict of guilty of manslaughter, and bearing in mind the natural limitations of the appellate process, I accept that a verdict of not guilty of murder, but guilty of manslaughter is well open. Like Hoeben CJ at CL and Button J, I have watched Exhibit “D” a number of times. What it depicts, coupled with the “consciousness of guilt of culpable homicide” evidence, in particular, supports that verdict. The Crown case is further enhanced by the contextual evidence of previous animosity between the accused and the appellant. However, I cannot say that verdict was inevitable.

I cannot say that such a result was inevitable because the conditions upon which the issue of self-defence may entitle the appellant to an outright acquittal were never explained to the jury. The written directions have been set out by Hoeben CJ at CL at [17] above. As his Honour points out, her Honour’s oral directions were in almost identical terms. It was never put in express terms that self-defence may be a complete defence. The emphasis in paragraphs [4], [5], [9], [10], [11] and [12] of “MFI 23” was on self-defence as a gateway to manslaughter, if I may put that way, not acquittal. To repeat myself, the directions are silent about what consequence would follow if the Crown had failed to prove beyond reasonable doubt both of the conditions set out in paragraph [4] of “MFI 23”. With respect, paragraph [10] was erroneous because it directed the jury that if they were not satisfied that the Crown had excluded self-defence they needed to consider the alternative verdict of manslaughter (by excessive self-defence). As Mr Game SC argued, this was erroneous because if the jury were not satisfied that the Crown had excluded self-defence, the accused was entitled to an outright acquittal. Notwithstanding the apparent strength of the Crown case and the demonstration of a rational logical train of reasoning to the verdict actually reached at the trial, as the jury were not asked to consider whether self-defence was available to the appellant to justify an acquittal, the appellant was “denied … the benefit of the jury’s consideration of … [her] … principal [defence]”.

I am not satisfied that the possibility that the appellant has been denied a chance of acquittal fairly open to her has been excluded beyond reasonable doubt.

Before leaving the matter, I wish to record that I agree that Hoeben CJ at CL at [48] above that the better approach to instructing the jury on self-defence in murder cases is to deal with ss 418 and 421 at the same time. I also agree with Button J that “ss 418 and 421 constitute, and must be explained to the jury as, an integrated conceptual whole”.

This is not the occasion to attempt the formulation of a model direction for use in murder cases. Obviously there is no single appropriate approach. But I consider it appropriate when self-defence is raised that the jury is instructed that self-defence may be either a complete or partial defence to the charge of murder: if a complete defence, the accused is not guilty of murder; and if a partial defence, the accused is not guilty of murder, but is guilty of the somewhat less serious offence of manslaughter (by excessive self-defence). An explanation can then be given of what the Crown has to prove beyond reasonable doubt to exclude the complete defence and what is required to exclude the partial defence. Dealing with these issues at the same time should make clear to the jury that the failure of the Crown to exclude both elements to the jury’s satisfaction beyond reasonable doubt entitles the accused to acquittal both of murder and its alternative, manslaughter.

I agree with the orders proposed by Button J.

BUTTON J:

I have had the substantial benefit of reading in draft the judgment of Hoeben CJ at CL. I agree with much of what his Honour has written.

As for ground 2 in the appeal against conviction, I agree with the Chief Judge at Common Law that no error is established in the directions about lies and consciousness of guilt.

As for ground 3, which asserts that the verdict of guilty of manslaughter is unreasonable or unable to be supported, I agree that that proposition is unsustainable as a matter of evidence. The CCTV footage of the stabbing, combined with the depth and location of the wound, strongly supports the proposition that the applicant committed the offence of manslaughter.

Turning to ground 1, I agree with what his Honour has written about the directions given by the trial judge to the jury with regard to manslaughter by unlawful and dangerous act, self-defence to manslaughter, and causation.

I have respectfully come to a different view, however, about the directions given to the jury about self-defence with regard to murder, and the potential role of self-defence in either leading to a complete acquittal of both murder and manslaughter (on the basis of complete self-defence), or a verdict of not guilty of murder but guilty of manslaughter (on the basis of excessive self-defence). I have come to that view for the following reasons.

First, as his Honour has said, self-defence was the central issue in the trial.

Secondly, I agree with his Honour that the directions in para 5 of MFI 23 were, with respect, incorrect. For convenience, I repeat the entirety of that paragraph:

It can be seen from s 418(2) of the Crimes Act 1900 (NSW) that, in the circumstances of this murder trial, self-defence had two relevant “legs”.

The first leg was the question of whether the applicant believed that her conduct was necessary to defend herself.

The second leg was whether that conduct was a reasonable response in the circumstances as the applicant perceived them.

If the Crown at trial failed to prove beyond reasonable doubt that the accused did not believe her conduct was necessary to defend herself, and the Crown failed to prove beyond reasonable doubt that the conduct of the applicant was not a reasonable response in the circumstances as the applicant perceived them, then the applicant was entitled to a complete acquittal; that is, a verdict of not guilty of murder and not guilty of manslaughter. So much is clear from the statement of Parliament to be found in s 418(1) of the Crimes Act, the statement of onus to be found in s 419 of the Crimes Act, and the import of s 421 of the Crimes Act (which only plays a role if the Crown succeeds in satisfying the jury beyond reasonable doubt that the conduct was not a reasonable response in the circumstances as the accused perceived them).

And yet it can be seen that the last sentence of para 5 of MFI 23 was to contrary effect: it instructed the jury that even if “the Crown has failed to prove at least one of [the legs of self-defence] beyond reasonable doubt, then the appropriate verdict is one of “not guilty of murder” but you need to consider the alternative verdict of manslaughter”.

To express my analysis above more concisely and comprehensibly, and leaving out questions of onus in an effort to avoid confusing double negatives: if the Crown failed on both legs of self-defence, the applicant was entitled to a complete acquittal. The last sentence of para 5 is to opposite effect.

Thirdly, that is an error with regard to a fundamental aspect of the structural interaction between complete self-defence (leading to a complete acquittal) and excessive self-defence (leading to a verdict of not guilty of murder but guilty of manslaughter).

Fourthly, the fact that the erroneous direction appeared in written form means that it is very likely that the jury gave it considerable weight, in accordance with human nature, and authority: see, for example, Justins v The Queen (2010) 79 NSWLR 544; [2010] NSWCCA 242 at [242].

Fifthly, it is true that the verdict of the jury of guilty of manslaughter is inscrutable. By that I mean, one cannot know with certainty whether, on the one hand, the jury was satisfied of all of the elements of murder (including a necessary mental element), but found the applicant guilty of manslaughter by way of excessive self-defence; or, on the other hand, the jury was not satisfied of all of the elements of the offence of murder, and found the applicant guilty of manslaughter on the basis of an unlawful and dangerous act.

Nevertheless, as a practical matter, having watched the CCTV footage that is exhibit D, and bearing in mind the location of the fatal wound in the chest of the deceased, and its depth of 7 cm, I think that the former process of reasoning is far more likely than the latter. As well as that, it is noteworthy that, in finding facts on sentence, the learned trial judge found without difficulty that an intention to inflict grievous bodily harm had been established, and proceeded to sentence on the basis of excessive self-defence.

In other words, I think it very likely that the verdict of the jury is based upon the version of manslaughter – excessive self-defence – about which a misdirection had been given.

Sixthly, it is true that juries are entitled to decide issues when deliberating in the manner and order that they see fit: see Stanton v The Queen (2003) 77 ALJR 1151; [2003] HCA 29 at [35]. Having said that, in considering verdicts in trials in which both murder and manslaughter are left as substantive alternatives, and also both complete and excessive self-defence are left for the consideration of the jury, as a matter of practical reality the analysis of a jury will surely very often commence with deciding whether the mental element for murder has or has not been made out, before turning to consider the role that self-defence (in either of its forms) should play.

In particular, because excessive self-defence does not arise at all if the jury is satisfied merely of the elements of manslaughter and not murder, then (in a murder trial in which self-defence is raised) in a practical sense it will very often be essential for the jury to consider first the question of which, if any, form of homicide is proven, before turning to an assessment of the “defence”.

In other words, in the particular context of the inter-relationship between homicide and self-defence, I think that sequential reasoning generally is of significance. And that has the effect that the significance of the erroneous sequence contained in para 5 is heightened.

Seventhly, bearing in mind the error that I believe is to be found in the last sentence of para 5 of MFI 23, I consider that an erroneous pathway was provided to the jury, whereby they could have come to a verdict of guilty of manslaughter (by way of excessive self-defence). As I have said, if not satisfied that the Crown had succeeded with regard to the first leg, and not satisfied that the Crown had succeeded with regard to the second leg, the appropriate verdict was simply not guilty of murder and not guilty of manslaughter.

Eighthly, it is true that other portions of the written and oral directions could be interpreted as overcoming the problem in para 5. It is also true that it is possible that the jury ultimately came, by way of a roundabout path, to a verdict of manslaughter on the basis of a correct analysis of the operation of the first and second legs of self-defence, leading to a correct finding of excessive self-defence, and a correct verdict of not guilty of murder but guilty of manslaughter.

Having said that, para 5 is the first discussion in the written directions of the approach the jury should take, after having come to determinations about the two legs of self-defence. In light of its primacy and clarity, and reading the written and oral directions about self-defence as a whole, I am not confident that the jury did not take a false path to a verdict of guilty of manslaughter, thereby occasioning a miscarriage of justice.

Ninthly and finally with regard to the substance of this part of the ground, it is true, as I have said, that juries are entitled to approach the issues for their determination in the order and manner in which they see fit. But I do not accept the submission of the Crown that ss 418 and 421 of the Crimes Act are able to be analysed or understood separately. As a matter of statutory interpretation, they, along with the whole of Div 3 of Part 11 of the Crimes Act, constitute an over-arching statutory regime to be applied by a jury when a count of murder is on the indictment and the evidential burden is discharged by the accused with regard to self-defence. Far from being internally severable, I consider that, in those circumstances, the sections constitute, and must be explained to the jury as, an integrated conceptual whole.

As for r 4 of the Criminal Appeal Rules (NSW), it is true that defence counsel at trial submitted that “we are suggesting as an overall but final direction that your Honour tells the jury if the Crown has not negated or disproved self-defence you must return a verdict of not guilty” (summing-up, 17 February 2015, at p 26). The making of that submission at trial argues against r 4 being applied to dismiss the appeal.

To be weighed against that is the fact that, in my view, that simplistic statement did not raise the far more refined and specific point now made on behalf of the applicant in this appeal. That argues in favour of r 4 being applied to dismiss the appeal.

Having said that, because of the fundamental nature of the misdirection, and my opinion that it constituted a miscarriage of justice, I do not consider that r 4 should stand in the way of the success of the appeal.

In short, I consider that it is quite possible that the jury adopted an invalid path to a verdict of guilty of manslaughter, based upon an erroneous written direction, which dealt with a fundamental aspect of the central issue for determination in the trial.

In those circumstances, despite my agreement with the proposition that the evidence that the applicant committed the offence of manslaughter is strong, I do not believe that the conviction should be permitted to stand. In other words, I am not persuaded that no substantial miscarriage of justice actually occurred in this trial, which culminated in a conviction for a form of homicide, along with a sentence of imprisonment for many years.

Finally, and contrary to the submission of senior counsel for the applicant, I do not accept that there should be any limitation on how the Crown presents its case for manslaughter at any subsequent trial. Apart from anything else, I do not accept that binding incontrovertibility can arise from a jury verdict when the basis of the success of an appeal is a misdirection about a matter fundamental to that verdict.

I propose the following orders: