R v Haydar

1. [1]

   The accused, Haydar Haydar, was charged on 29 February 2016 on an indictment with the following offences:

   1. (1)

      that on 30 March 2015 at Bexley in the State of New South Wales he did murder Salwa Haydar;

   2. (2)

      that on 30 March 2015 at Bexley in the State of New South Wales he did wound Ola Haydar with intent to cause grievous bodily harm;

   3. (3)

      in the alternative, that on 30 March 2015 at Bexley in the State of New South Wales he did recklessly wound Ola Haydar.

2. [2]

   When arraigned on 1 July 2016, the accused pleaded not guilty to each of these offences and his trial was fixed to commence on 20 February 2017 with an estimate of two weeks.

3. [3]

   Since that time, the accused has offered to plead guilty to manslaughter with respect to the offence of Count 1 of the indictment on the basis of substantial impairment of the kind sufficient to satisfy s 23A of the Crimes Act 1900. He has offered to plead guilty to the offence in Count 3.

4. [4]

   Counsel for the accused told the Court that he understands that when arraigned at the start of his trial, the accused will plead in a way consistent with those offers.

5. [5]

   On 11 January 2017, the Crown served three additional statements from the daughters of the accused and the deceased containing more extensive factual material than had previously been provided.

6. [6]

   On 17 January 2017, the Crown served seven further police statements and two disks containing CCTV footage.

7. [7]

   On 19 January 2017, the accused filed a notice of election under s 132(1) of the Criminal Procedure Act 1986 to be tried by a judge alone.

8. [8]

   On 19 January 2017, the Crown served material required by ss 141 and 142 of the Criminal Procedure Act, including a Crown case statement.

9. [9]

   On 25 January 2017, the Crown served on the accused a notice pursuant to s 67 of the Evidence Act 1995 indicating that it intended to introduce first‑hand hearsay evidence from the daughters of the accused and the deceased as contained in the additional statements served on 11 January 2017.

10. [10]

    On 1 February 2017, the accused filed a Notice of Motion seeking an order that his trial proceed before a judge alone and not before a judge and jury. For the reasons which follow, the Notice of Motion is dismissed.

Relevant Legislation

1. [11]

   The accused’s application is made pursuant to s 132 of the Criminal Procedure Act.

2. [12]

   The central issue of relevance at the trial is anticipated to be the accused’s defence to the charge of murder of substantial impairment. Section 23A(1) of the Crimes Act is in the following form:

Crown Case

1. [13]

   The Crown case is disclosed sufficiently for the purpose of this application in the outline document provided to the Court and the accused. Relevantly, it includes:

Defence under s 234 of the Criminal Act

1. [14]

   Reports of three psychologists have been exchanged between the parties and have been put before the court. For the accused they are:

2. [15]

   The report of Stephen Allnutt, dated 20 May 2016, is relied upon by the Crown.

3. [16]

   In short, it seems to me that each of these experts accept that, based upon the history provided by the accused, that both prior to, and at the time of the offence with which he is charged, he was suffering from a depressive condition which constituted an abnormality of mind, in the sense of that encompassed by s 23A of the Crimes Act.

4. [17]

   Each of these experts, I am informed by counsel, has been provided with the additional statements of the daughters, and each takes the view that the additional material has not caused them to change their minds.

5. [18]

   Accordingly, as I have said, the principal issue at trial will be whether the impairment was sufficiently substantial to warrant liability for murder being reduced to manslaughter (see s 23A(1)(b) of the Crimes Act).

Legal Principles

1. [19]

   In R v Villalon [2013] NSWSC 1516, Bellew J, in a judgment which, if I may say with respect, helpfully and with clarity sets out the relevant considerations for a court dealing with an issue such as the one before this Court, described at [20] the following principles:

2. [20]

   It can be seen that Bellew J has drawn those principles from the comprehensive judgment delivered by McClellan CJ at CL in R v Belghar [2012] NSWCCA 86. Judgments applying those principles can be found in R v Simmons (No 4) [2015] NSWSC 259 by Hamill J and also R v Farhad Qaumi (No 14 ) [2016] NSWSC 274 by Hamill J. See also the discussion of the relevant principles by Johnson J in R v McNeil [2015] NSWSC 257 at [27]‑[29]. I will apply those principles in my consideration of this application.

Discernment

1. [21]

   The accused submitted that it was in the interests of justice to grant the application for trial by judge alone for the following reasons:

2. [22]

   The Crown, in its submissions, opposed the order sought in the Notice of Motion. The Crown submitted that, in addition to the matters mentioned by the accused which the Crown submitted were not made out, the central question posed for trial was a matter which involved a factual finding which could only be made by the application of objective community standards and that accordingly, and given the centrality of that issue, it was overwhelmingly in the interests of justice that the trial proceed before a judge and jury.

3. [23]

   In that respect, the Crown points to the provision of s 132(5) of the Criminal Procedure Act. It needs to be added to this identification of circumstances that both counsel who appeared before the Court on the hearing of this Notice of Motion expressed confidence that trial counsel, in the time left between now and the commencement of the trial on 20 February 2017, would engage diligently in a process of resolving competing views about admissibility of parts of the evidence, including the daughters’ additional statements; and in addressing what matters ought to be before the jury and how that ought occur in a way which each anticipated would, in the ordinary course, be likely to reduce the issues in dispute to be considered by a trial judge.

4. [24]

   Counsel for the accused noted that whilst he had confidence in that process occurring, the end result of such discussions could still be that there was a need for the court to determine the admissibility of disputed parts of the evidence and that it may be that the court would need to order the holding of a Basha inquiry.

5. [25]

   The concerns and circumstances raised by the accused essentially centre upon the concern that the Crown will attempt to lead evidence inadmissible in form under the rubric of relationship evidence, to which the accused will be seen by a jury to be constantly objecting and thereby interrupting the attempts by the Crown to prove its case. The accused submitted that these circumstances would cause the jury to be prejudiced against the accused.

6. [26]

   I am far from persuaded that that is likely to be so. Firstly, I think the process of discussion will minimise the occasion when this is likely to happen. Secondly, the Crown Prosecutor has an obligation to the court, particularly when on notice that evidence is to be objected to for various reasons, only to lead that evidence strictly in accordance with the requirements of the Evidence Act and also not to do so prior to a ruling being effected by the trial judge.

7. [27]

   Thirdly, I do not accept that the mere fact that counsel for an accused is seen to be taking an objection in front of the jury to the admissibility of evidence proposed to be led, leads in and of itself to any prejudice on the part of a jury against the accused.

8. [28]

   After all, what is occurring is that counsel is seeking to protect the accused’s legitimate rights. Finally, even if a jury were to take that view – and such a view would become apparent – there is no reason to think that directions given by the court would not be able to comprehensively and satisfactorily address the question and direct the jury to refrain from drawing any conclusion adverse to the accused by such conduct.

9. [29]

   The accused also pointed to the possibility that the delivery of expert evidence by way of sequential evidence may cause the jury confusion or may obstruct the jury’s understanding of the evidence. The accused submitted that this was a factor whose weight should go in favour of the granting of the order sought, because in a judge alone trial concurrent evidence could be taken. Undoubtedly, in the modern way of taking evidence, giving concurrent evidence is a useful and time-efficient method for taking the evidence of experts. There are sufficient benefits which this Court sees across a wide range of cases in having experts giving concurrent evidence rather than sequential evidence in the traditional way.

10. [30]

    However, that is not to say that a jury would find the giving of evidence sequentially by experts to be confusing, or in some way to raise a suggestion that their evidence would be incapable of being understood. In this case I am satisfied that such confusion or lack of clarity is most unlikely to occur. That is because there is very little, if any, difference in substance in the opinions of the experts.

11. [31]

    There are, of course, differences of degree but, ultimately, the trial does not involve a significant difference of expert opinion, which is the circumstance where concurrent evidence is generally found to be the most beneficial and efficient.

12. [32]

    There may be some marginal benefit in this case, but I do not think it is of any great significance.

13. [33]

    I acknowledge that, in accordance with the authorities, the subjective issues of the case are relevant matters to take into account. I do so but, on the other hand, I must keep in mind the authorities which provide that the mere statement of the accused’s wishes is not sufficient on its own to warrant the making of the order that is sought.

14. [34]

    Finally, the accused identifies the availability of trial Judge’s reasons for considering whether or not the impairment was so substantial as to warrant a reduction of the offence from murder to manslaughter as a factor which should weigh in favour of the making of the order that is sought.

15. [35]

    Undoubtedly, having reasons available for the Court of Criminal Appeal to consider would be a benefit. However, that is a factor which must be taken into account and weighed in the balance in the determination of what the interests of justice in this case require.

16. [36]

    In my view, in this case, the circumstances involved in the application of the tests under s 23A(1)(b) of the Crimes Act, and whether the impairment is sufficiently substantial in the circumstances of the case to warrant the reduction of the charge from murder to manslaughter, is a question which requires the application of objective community standards. In particular, the circumstances require consideration of the role and place of domestic violence in our society; the role and place of cultural views with respect to the relationships between people born into cultures different to our own; and finally, an assessment of the impact of a readily understandable psychiatric condition, namely, depression, on the day-to-day life and operation of the accused.

17. [37]

    In my view, these are matters which are best determined by a jury of the accused’s fellow citizens. Their combined wisdom and experience from all different walks of life brings a richness to the decision-making process that would be absent if the matter was decided by a judge alone. The interests of justice in this case are, in my view, such that by reason of the principal issue to be decided, the best course is that the trial be heard by a judge and jury.

18. [38]

    Accordingly, I have concluded that the application pursuant to s 132 of the Criminal Procedure Act for trial by judge alone ought to be dismissed.

19. [39]

    I dismiss the Notice of Motion dated 1 February 2017.