Abdallah v R

Solicitors: Bannisters Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2013/40978 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law - Criminal Citation: [2018] NSWSC 729 Date of Decision: 23 March 2018 Before: Lonergan J File Number(s): 2013/40978

Judgment

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. 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. The sole ground of appeal against conviction is in the following terms: "Ground 1: The trial miscarried by reason of the failure by the Crown to observe the incontrovertibility principle in respect of the applicant's earlier acquittal for murder. The trial judge erred in permitting the Crown to so put its case."
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. 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. 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. 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. 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. 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. 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: "[62] I will now take you through that document [MFI 27]. You can see that manslaughter has six elements or six essential building blocks. They are that, one, the accused, two, voluntarily, three, did an act, four, that caused the death of the deceased, and five, that act was unlawful, and six, that act was dangerous. [63] I have noted on that written direction, and I should say this written direction has been provided to you with the consent of the Crown and Mr Stanton, to prove an offence of manslaughter the Crown does not have to prove an intention to kill or to cause serious physical injury. You will appreciate that the Crown is relying upon the stabbing of the deceased to the right side of her chest with a knife. What the Crown must prove is that the act that caused death was unlawful and also that the act was dangerous."
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. 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. 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: "The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty."
2. 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. 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: "Under s. 18 of the Crimes Act 1901-1951 (N.S.W.) the crime of murder is 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, that being a crime that was punishable by death or penal servitude for life. The acquittal of murder therefore necessarily negatived the proposition that the applicant caused the death of the young woman during or immediately after the commission by the accused of the crime of rape. It is of no importance for this purpose that the jury were or might have been led to negative the proposition by an erroneous direction by the presiding judge. On a subsequent indictment the Crown would be precluded upon any issue which could not be found consistently with the negative of the proposition. For the Crown is as much precluded by an estoppel by judgment in criminal proceedings as is a subject in civil proceedings: R. v. Wilkes; Sambasivam v. Public Prosecutor of Malaya. But the affirmative of the proposition involves three elements or things, viz. (1) that the applicant committed rape and (2) that during or immediately after the commission of the crime (3) an act of his caused the death of the young woman. Now to negative the proposition as a whole it is enough to find that any one of these three elements was lacking. But the jury's verdict included a finding that the applicant was guilty of manslaughter as well as a finding that he was not guilty of murder. Accordingly so far as the verdict of the jury is concerned it affirmed the last of these three elements, namely that an act of the applicant caused death."

The present case

1. 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. 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. 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. 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. In these circumstances, I agree with the orders proposed by Hamill J.
6. 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.

The factual circumstances

1. The applicant and the deceased were cousins and were living together at the time of the deceased's death on 9 February 2013.
2. 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. Provisions of the Crimes Act of present relevance are as follows: 18 Murder and manslaughter defined (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. (b) Every other punishable homicide shall be taken to be manslaughter. … 24 Manslaughter - punishment Whosoever commits the crime of manslaughter shall be liable to imprisonment for 25 years - Provided that, in any case, if the Judge is of the opinion that, having regard to all the circumstances, a nominal punishment would be sufficient, the Judge may discharge the jury from giving any verdict, and such discharge shall operate as an acquittal. … 418 Self-defence - when available (1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary - (a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them. 419 Self-defence - onus of proof In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence. … 421 Self-defence - excessive force that inflicts death (1) This section applies if - (a) the person uses force that involves the infliction of death, and (b) the conduct is not a reasonable response in the circumstances as he or she perceives them, but the person believes the conduct is necessary - (c) to defend himself or herself or another person, or (d) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person. (2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter.

The trial before Adamson J

1. 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. 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. "15 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. 16 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). … 44 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 v R [2015] NSWCCA 193, concerned with manslaughter by excessive self-defence] 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 (2016) 259 CLR 47; [2016] HCA 32]. 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."
3. In relation to the inscrutability of the jury verdict, Button J observed: "103 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. 104 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."

The trial before Lonergan J

1. In opening to the jury, the Crown initially put its case as follows: "The Crown says that having regard to all the circumstances regarding this incident, that when Ms Abdallah stabbed Suzie Sarkis she committed an unlawful and dangerous act and that she was stabbed Ms Sarkis deliberately, intending to do it, and that she did it, stabbed Ms Sarkis, without any lawful excuse such as self defence. That, members of the jury, I expect will be the real issue for you to decide at the end of this trial after you have heard all of the evidence."
2. Later in the opening, in referring to the CCTV footage, the Crown said: "You see Ms Abdallah approaching Ms Sarkis or standing in the kitchen holding two knives and also see her thrust the knife that she has in her left hand directly at Suzie Sarkis who appears to manage to avoid it by quickly swinging around and out of the way. The accused, Ms Abdallah, then thrusts the knife she was holding in her right hand at Ms Sarkis. Ms Sarkis, still unarmed, took several steps towards the accused. The accused stepped back but at the same time you see her thrusting the knife she is holding in her left hand directly at Ms Sarkis and, the Crown says, that is when she stabbed Ms Sarkis in the upper right chest just above her right breast. The footage shows Suzie Sarkis immediately gripping her chest. Seconds later she moves towards that round dining table and falls across it as the accused is walking back into the living room, still holding both those kitchen knives, one in each hand."
3. The Crown's final address included the following: "The Crown says the fight in the townhouse started, the fight in the evening started as a result of the accused hitting and striking Suzie Sarkis. And that the accused ended it by stabbing the deceased as the final, deliberate act in the ongoing violence the accused used against Suzie Sarkis through that day. Not done out of self defence, members of the jury, but done out of ongoing hostility, ongoing hostility towards and aggression for Suzie Sarkis by this accused. … The accused didn't stab Ms Sarkis straightaway, did she? She had three goes at it. You can see her in the footage. First of all, thrusting each knife, the one in each hand, in turn at Ms Sarkis, who just manages to avoid them by quickly turning to the side, swinging herself out of the way of danger. Ms Sarkis takes a couple of more steps towards the accused. The footage shows the accused stepping back too. And then the accused positions herself, gets ready to take aim, the Crown says, and lunged out with the knife in her left hand. She stabbed Ms Sarkis in the upper chest, right where there are lots of vital organs. It was certainly no accident, was it, members of the jury? You see Ms Sarkis immediately clutching her chest in pain. That knife went in 7 centimetres, deep enough to penetrate the right lung, fatally injured the deceased within a matter of seconds. Ms Sarkis moves to that round table in obvious distress and what does the accused do, members of the jury? If you watched the footage, paying careful attention, you will see the accused walked past her and as she does she holds up the knife in her left hand twice in what the Crown says was a further threatening gesture. … Are you satisfied beyond a reasonable doubt the accused didn't believe it was necessary to stab Ms Sarkis to defend herself? Or, are you satisfied beyond reasonable doubt that when the accused stabbed Ms Sarkis it wasn't a reasonable response in the circumstances as the accused Ms Abdallah perceived them to be at the time? … But the Crown says the accused's behaviour captured in that footage from the morning at stages is so extreme that it really is a case of actions, body language, speaking louder than any words would. The accused's annoyance, anger and frustration acted out in a series of repeated and exaggerated gestures, all directed at Suzie Sarkis. The accused standing in front of Ms Sarkis and bending over to make a point. … The accused armed herself, ladies and gentlemen, at a point in time when she knew Ms Sarkis had no weapons. Ms Sarkis followed the accused but she stops at the entrance to the kitchen. She saw the accused holding the knives and she stayed where she was, 17.59.46. The accused lunges at Ms Sarkis, thrusting the knife in the left hand at her. 17.59.47. She follows up a second later by swinging the knife in her right hand at Ms Sarkis. 17.59.48. Ms Sarkis did take a couple of steps towards the accused but when she does it, her arms are down by her side. The Crown says the accused then positions herself and lunges at Ms Sarkis a third time with the knife in her right hand, 17.59.53. The Crown says she aimed directly and deliberately for Ms Sarkis's chest in that third thrust of the knife. And as you know, she stabbed it hard into Ms Sarkis's upper right chest, to a depth of no less than 7 centimetres. As I said before, where lots of vital organs are. The Crown says the footage shows, when you look at it carefully and it is helpful to look at it a number of times, this part of it at any rate, members of the jury when she stabbed the deceased, Ms Sarkis, the accused acted swiftly, deliberately and effectively. Plunging a knife deep into someone's chest is not a reasonable thing to do, the Crown says. You see, at the time the accused knew Ms Sarkis had no weapons. She saw she didn't have her arms raised. The accused chose to arm herself with two weapons and to use both of them instead of leaving the place. It is always a matter for you, members of the jury, but the Crown says that's not self defence. The Crown says this accused acted out of ongoing aggression, determined to win the fight, in the end using those knives."

The submissions on the conviction appeal

1. The applicant's written submissions on appeal summarised her arguments as follows: "By virtue of s 18(1)(a) of the Act where death is caused by an act done with intent to cause grievous bodily harm this is murder. It is the applicant's case that by virtue of the acquittal for murder 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. The applicant's alternative submission is that should the Crown have sought (as it did) to establish an offence under s 18(1)(b), asserting that the act causing death was done with an intent to cause grievous bodily harm, then it was incontrovertible from the murder acquittal that that state of mind was held with a belief that it necessary for the applicant to do what she did (ie stab with intent to do grievous bodily harm) in self defence. That is because the only manner in which an act done with an intention to cause grievous bodily harm, could in these circumstances be other than murder, would be by virtue of a belief held that it was necessary for the applicant to do what she did under the first limb of s 421(1). That is excessive self defence reducing murder to manslaughter."
2. Later in the written submissions, she put the following: "At the retrial the Crown was not (and could not be) relying upon voluntary manslaughter. It was precluded from doing so by reason of s 421(2) of the Crimes Act. Nevertheless, any assertion at the retrial, based on unlawful and dangerous act manslaughter, that the accused acted with an intention to cause grievous bodily harm was prohibited by the acquittal (and the language of s 18) or, at the very least, had to come with an acceptance that the accused did believe it was necessary to do such an act (with such intent). That was incontrovertible. It was also critical. This issue had already been decided favourably to the applicant. The way the Crown left its case amounted to an assertion that the applicant was guilty of murder."
3. 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.

Determination of the conviction appeal

1. 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. 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. 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.

The Grounds of Appeal

1. The applicant seeks leave to appeal against her sentence on the following grounds: ● Ground 1: The trial judge failed to address on sentence, properly, or at all, the consequences of the earlier acquittal for murder. ● Ground 2: The trial judge failed to have regard to, and apply, the principle in R v De Simoni (1981) 147 CLR 383; [1981] HCA 31. ● Ground 3: The trial judge failed to address properly and adequately the question of state of mind intention and self-defence as they related to findings on sentence.
2. The applicant's submissions on appeal addressed these three grounds together.

The sentencing judgment

1. Lonergan J noted the following at the outset of her judgment: "17 The charge was manslaughter by unlawful and dangerous act pursuant to s 18(1)(b) of the Crimes Act 1900; that is, a punishable homicide that does not amount to murder. 18 The sole issue at trial was whether the offender had acted in self-defence. 19 Because the jury found the offender guilty, it is clear that the jury rejected self-defence. I am required to sentence the offender on the basis that she had no lawful excuse for stabbing Ms Sarkis."
2. In her submissions to this Court, the applicant referred to the following paragraphs of her Honour's reasoning: "43 At 5.59.47 to 48 seconds [on the CCTV footage], the offender is shown quickly pushing the knife in her left hand and then one in her right hand toward the upper body of Ms Sarkis. 44 At 5.59.53pm, she pushes the knife in her left hand thrusting forward again using her shoulder with her arm quickly fully extended, stabbing Ms Sarkis in the right front upper chest. She walks away from Ms Sarkis and resumes her seat on the lounge. Ms Sarkis stumbles and then falls to the ground. … 46 There is no doubt that the offender escalated the fight by moving to the kitchen, arming herself with not one, but two large knives. The offender could see that Ms Sarkis was unarmed. The offender was physically bigger than Ms Sarkis, although I have no evidence before me that assesses the respective strength of the two women. In the space of 5 to 6 seconds, the offender had pushed the two knives towards the upper body of Ms Sarkis three times, with the third making contact with Ms Sarkis' chest to a depth described by the forensic pathologist as seven to ten centimetres. … 48 The jury must have rejected that analysis in the verdict they gave, because implicit in their verdict is a conclusion that the Crown had proven beyond reasonable doubt that the offender was not acting in self-defence. … 56 It was a significant escalation of events for the offender to move to the kitchen and collect two long, sharp knives in the context of a heightened and physically violent argument. She used those knives by pushing them towards Ms Sarkis in a way that threatened, dominated, and ultimately fatally wounded her. 57 I regard the offending as very serious, however I bear in mind the heightened circumstances and what seems to have been an impulsive act in resorting to accessing the knives. This stemmed more from a lack of self-control rather than any planning. The three jabs took place within 5 to 6 seconds. It is significant that Ms Sarkis followed the offender to the opening of the kitchen and was in the process of taking two steps forward towards the offender. It was not a case of the offender chasing Ms Sarkis with the knives. It is more complex than that. Ms Sarkis could have left the unit. She stayed and followed the offender to the kitchen and faced her. I emphasise that in providing that description, the jury found that the Crown had proven beyond reasonable doubt that the offender was not acting in self-defence. I am simply stating what is shown on the footage so that the circumstances of the offending is clear. 58 Having said that, it is clear on the footage that the offender directed the knives towards the chest area of Ms Sarkis. The third lunge that made contact with Ms Sarkis must have had significant force behind it given the penetrating wound to the depth of seven to ten centimetres."

Determination of the Grounds of Appeal

1. 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. 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. 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. 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. 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. 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): "a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence."

Orders

1. For the reasons above, I propose the following orders: 1. To the extent necessary, grant leave to the applicant to appeal against her conviction and sentence. 2. Dismiss the appeals against conviction and sentence.
2. 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. 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. 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. 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.

Endnotes

1. As to the history at common law, compare Viro v The Queen (1978) 141 CLR 88; [1978] HCA 9 with Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645; [1987] HCA 26.
2. Crimes Act 1900 (NSW), s 421(1)(c).
3. Appeal transcript, 6 September 2019, ("AT") p 20.
4. AT p 20.
5. AT p 21.
6. Sambasivam v. Public Prosecutor, Federation of Malaya (1950) AC 458 and Garrett v The Queen [1977] HCA 67; (1977) 139 CLR 437.
7. Applicant's written submissions at [57].
8. AT p 1 and 6 ("this appeal in a way is a kind of an [outlier] because it's very hard to see how you would find yourself in this situation other than where a conviction for murder was quashed and you went back for trial on manslaughter").

Amendments 09 November 2020 - Publication restriction removed - retrial complete. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 November 2020