A man who stabbed his girlfriend's lover to death after finding them in bed together has had his murder conviction quashed after an appeals court found the jury was wrongly directed about returning a majority verdict.
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Roy Abanales Tabalbag said he was "a demon possessed" as he chased Amin Sthapit around his Darling Point bedsit, stabbing him to death with a chef's knife, on November 11, 2013.
Mr Tabalbag, 31, had just discovered his long-time girlfriend Geecy Rebucas naked and having sex with Mr Sthapit, 30, who was her boss at the Golden Sheaf Hotel at Double Bay.
Ms Rebucas had told him she would be at work that morning but Mr Tabalbag had become suspicious she was cheating on him and used a phone tracking app to locate her.
He had pleaded not guilty to murder but guilty to manslaughter but the plea was not accepted by the Crown.
Following a trial in the NSW Supreme Court in June last year, he was found guilty of murder by a majority of 10 to one.
After two weeks of evidence and hours of deliberations, the jury panel was reduced from 12 to 11 after one juror was discharged claiming he could not reach a verdict due to his Buddhist beliefs.
Justice Michael Adams told the remaining jurors that they could continue considering the verdict together, and return a majority decision, which they did eight minutes later. By that stage, they had deliberated for more than 22 hours.
In a judgment handed down on Wednesday, the Court of Criminal Appeal found there had been a miscarriage of justice because Mr Tabalbag "did not have a trial according to law".
The three-judge appeal panel found Justice Adams erred in directing the jury that they may return a majority verdict if they could not reach unanimity.
It found Justice Adams did not meet the terms of the Jury Act because he did not say he was satisfied that it was unlikely that the jurors would reach a unanimous verdict after further deliberation. In fact, when he questioned the jury foreperson on oath, the foreperson indicated the jury was "likely to get there".
The central issue in the trial was provocation. Mr Tabalbag's defence argued he lost self-control after being provoked.
The Crown argued he did not act because of a loss of self-control as he engaged in some type of planning to injure whoever Ms Rebucas was having sex with.
Mr Tabalbag, a call centre operator, was sentenced to a minimum of 12 years' jail and a maximum of 17 years.
The Crown appealed against the inadequacy of the sentence, but, given Mr Tabalbag's successful appeal against his conviction, the court did not consider this.
Mr Tabalbag and Ms Rebucas had been in a de facto relationship for four years before they moved from their native Philippines to Australia in 2012. They had plans to marry.
Mr Tabalbag will face a retrial at a date to be set.
