I FACTS

On 18 October 2016 at 3:30am, the applicant’s burnt his wife to death in the bedroom of her home in Guildford. At 3:34am, the deceased used her mobile phone to call emergency services, however, her voice suddenly fell silent during the call.

In 2005, the applicant and the deceased married in Iran when the deceased was 16 years old, and the applicant was 32 years old. Shortly after their marriage, the applicant and the deceased moved to Australia with their two sons, aged nine and six years old, as of 2016. Prior to her death, the relationship between the deceased and the applicant deteriorated. In early October 2016, the deceased used a dating app and met a man. Consequently, the applicant became aware that the deceased intended to leave him.

The applicant sought eave to appeal his conviction of the trial court, as pursuant to Section 5(1)(b) of the Criminal Appeal Act.[1] In this case, the applicant relied on a single ground of appeal, being that “there was an error of law or miscarriage of justice or both in that the trial judge did not direct the jury that they had to be unanimous as to the conduct constituting the offence, that is, the act causing death”.[2] The applicant’s and deceased’s sons gave evidence that the applicant pushed the deceased into the bedroom and prevented her from leaving the room. The neighbours were awoken by screaming from the house by the deceased.

II TRIAL COURT

On 25 July 2018, the jury convicted the applicant with the offence of murder under Section 18(1)(a) of the Crimes Act.[3] On 2 November 2018, the applicant was sentenced to a term of imprisonment of 36 years with a non-parole period of 27 years.[4] The trial judge, being Justice Davies, sentenced the applicant on the basis that the petrol was brought into the bedroom where the deceased had been asleep, was responsible for the fire that began in the bedroom and then prevented the deceased from leaving the bedroom.

III LEGAL ISSUES

The issue raised to the applicant’s ground is the extent to which a jury must be unanimous, not just regarding the overall verdict, however, also the route taken to come to the decision.

IV THE COURT OF CRIMINAL APPEAL’S DECISION

In his decision, Justice of Appeal Gleeson (‘Gleeson’), concluded that the applicant’s claim of misdirection was rejected, and the appeal was dismissed. His Honour ruled that the unanimity direction given to the jury regarding the actus reus causing the death of the deceased suited the facts of this matter. This unanimity decision was decided on two pathways. The first that the applicant caused the deceased’s death when he prevented her from exiting her bedroom while the room was on fire. Alternatively, and if the jury was not satisfised beyond reasonable doubt on the first pathway that the applicant had conducted this, the submission rested on the notion that the applicant had caused the deceased’s death by placing petrol in her bedroom or had ignited the fire. Justice Walton (‘Walton’) agreed with the decision of Gleeson.

Additionally, Gleeson noted that the trial judge correctly instructed the jury as to the elements of murder. These elements consist of the deceased’s death, the act of the applicant that caused her death, the act of the applicant that caused death was either with an intention to kill or to inflict grievous bodily harm and that the act was executed without any lawful excuse such as self-defence. The trial judge successfully informed the jury that no individual witnessed who lit the fire nor who introduced the petrol into the bedroom, which conveyed lawful direction in the trial.

Gleeson noted that the applicant’s appeal was based on his claim of misdirection, ultimately leading to an error of law or occasioning a miscarriage of justice. The applicant appealed that the trial judge had failed to direct the jury that they were required to be unanimous regarding the conduct that constituted the offence of murder.

On the alternative, Justice Dhanji (‘Dhanji’) agreed with the decision of Gleeson, however, added that he understood the reasoning behind the applicant’s counsel of perceiving the trial as lacking fairness. His Honour did not accept the Crown’s argument that the directions given to the jury would have made clear that they were required to be unanimous reading that the applicant deliberately held the door shut or deliberately lit the fire. Dhanji did not accept that the jurors would have understood the trial judge’s references to “you” as being a reference to the whole jury rather than the individual juror. His Honour believed that clear directions were required to discuss the need for the jury to be unanimous.

V IMPLICATIONS OF THE COURT’S DECISION

The Court’s decision highlighted the importance of unanimity directions for a jury at trial. Gleeson noted that a trial judge may provide direction regarding that the jury must be unanimous to determining criminal liability on the occasion where there are different routes to determine this guilt. The unanimity direction is not required in all cases, including those characterised as a single incident or act and cases when a jury cannot reach an unanimous verdict after extended deliberation.

VI AN INTERESTING NOTE ON THIS CASE

There were non-publication restrictions on the applicant and deceased’s names that were ordered by the trial judge. This was pursuant to Section 7 of the Suppression and Non-Publication Orders Act on the ground that it is necessary for the public interest.[5]Additionally, Section 15A of the Children (Criminal Proceedings) Act prohibits the deceased’s two children from being named and that any matter that could identify them or can likely lead to their identification be published.[6]

VII FOOTNOTES

[1] Criminal Appeal Act (No 16) 1912 (NSW).

[2] AKB v The King [2024] NSWCCA 169 [3].

[3] Crimes Act (No 40) 1900 (NSW).

[4] R v AKB (No 8) [2018] NSWSC 168.

[5] Court Suppression and Non-publication Orders Act (No 106) 2010 (NSW).

[6] Children (Criminal Proceedings) Act (No 55) 1987 (NSW).