AFTER BEING CONVICTED BY JURY TWICE FOR A HOMICIDE, SHE NOW APPEALS SEEKING A JUDGE ONLY TRIAL
R v Abdallah [2020] NSWSC 1346 (2 October 2020)
This case involves the accused who was acquitted for murder but was convicted of manslaughter instead. The court of criminal appeal ordered a second trial for the manslaughter conviction which prompted the applicant to seek for a judge alone trial.
Facts:
The applicant stood trial in the Supreme Court on a charge of murder (hereinafter “the first trial”). The jury acquitted the applicant of murder but convicted her of manslaughter (hereinafter “the first verdict”). The Court of Criminal Appeal quashed the conviction and ordered a new trial (hereinafter “the first appeal”). At the new trial, which occurred in 2017 (hereinafter “the second trial”), the applicant, necessarily on account of the result of the first trial, faced the charge only of manslaughter. The jury returned a verdict of guilty (hereinafter “the second verdict”) and the applicant was sentenced.
Subsequently, the Court of Criminal Appeal overturned that conviction on the basis of issues associated with the incontrovertibility of the first verdict, which was breached in the manner in which the jury was addressed and/or directed. As a consequence of the second appeal, the current trial would proceed, on the usual basis, namely, before a jury, subject to the current application.
The accused, Katherine Abdallah (hereinafter “the applicant”), applies to the Court for a judge alone trial. The applicant contends that the functions of the jury in determining facts on the basis of the evidence adduced in the trial will be significantly constrained by the circumstance of the first verdict and, to a lesser extent, the principles adumbrated by the majority in the second appeal.
Issue:
Should the court grant the application of the accused for a judge alone trial?
Law:
- s132 of the Criminal Procedure Act 1999
(4) If the prosecutor does not agree to the accused person being tried by a Judge alone, the court may make a trial by judge order if it considers it is in the interests of justice to do so.
Analysis:
In this case, notwithstanding the view that the second limb of the self-defense issue requires the application of objective community standards of reasonableness, the nature of the proceedings and the inferences that may arise from the evidence otherwise adduced, the complexity of the earlier findings and verdicts, which are incontrovertible, and the constraints on fact-finding that are inherent in the task that would otherwise be the province of a jury, so complicate the proceedings on the findings of fact that it is, in the view that the Court takes, in the interests of justice that the trial should be judge alone. The course of confining the jury to one issue is so artificial and will, in the court’s view, cause the jurors to question the directions to that effect and create a real danger that the jury undertake a decision-making task that has not been the subject of direction.
Conclusion: Pursuant to the terms of s 132 of the Criminal Procedure Act, Katherine Abdallah, in relation to the charge of one count of manslaughter, be tried by judge alone.
