Haydar v R

1. [1]

   LEEMING JA: Mr Haydar Haydar seeks leave to appeal from his conviction for murder, following a judge alone trial in the Supreme Court so long ago as 31 March 2017: R v Haydar (No 3) [2017] NSWSC 159. He needs, and seeks, a considerable extension of time. There is an explanation for the delay for most but not all of the six years. With considerable and commendable candour, his counsel pointed to the gaps in the explanation for the delay between December 2021, when advice on the merits of the appeal was provided, and April 2023, when instructions to file an application for leave to appeal were received. However, whether to extend the time for an appeal must be informed by the prospects of success, and so, constructively, the parties engaged in full submissions on the merits of the proposed appeal.

2. [2]

   On the day before the matter was listed for hearing, the applicant gave notice of a reformulation of the single ground of his appeal. The underlying challenge to a factual finding concerning the applicant’s loss of control remained unchanged. However, the ground of appeal had formerly been framed in terms of an unreasonable verdict, that is to say within the “first limb” of s 6 of the Criminal Appeal Act 1912 (NSW). Section 6 provides that an appeal may be allowed if the Court is:

3. [3]

   In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [9]-[15] the three bases upon which the Court of Criminal Appeal can intervene in an appeal against conviction were described as the first, second and third limbs.

4. [4]

   As reformulated, and as advanced at the hearing, the single ground of appeal is as follows:

5. [5]

   Thus, the applicant abandoned reliance on the first limb, and now sought to rely upon the third limb of s 6. He may have perceived a forensic advantage in reframing the ground, so as to avoid the burden associated with establishing the unreasonableness of the finding of guilt by the judge which was deemed (pursuant to s 133(1) of the Criminal Procedure Act 1986 (NSW)) equivalent to a jury’s verdict: see Filippou at [12]. However, two consequences should be noticed.

6. [6]

   First, in the event that a miscarriage of justice is established, the proviso may be applicable because the Court concludes that no substantial miscarriage of justice has actually occurred: Filippou at [15]. In contrast, success on the ground as originally formulated under the first limb carries with it the conclusion that there has been a substantial miscarriage of justice and thus the proviso will be inapplicable.

7. [7]

   Secondly, as the applicant once again candidly acknowledged, the reformulated ground meant that rather than seeking an order that this Court quash the conviction for murder and substitute a conviction for manslaughter, the appropriate order would be a retrial. That in turn starkly raises various questions of prejudice and finality and the failing of recollections consequent upon a retrial many years after the event.

8. [8]

   Notwithstanding the significance of the altered proposed ground of appeal, on the view I take it will not be necessary to address the considerations bearing upon the extension of time. However, it should not be thought that by taking the course of addressing and resolving the newly formulated ground on its merits, success on the extension of time would automatically follow. In particular, given the way in which the amendment arose shortly before the hearing, the Court did not have before it evidence of the prejudice occasioned by the delay of many years, some of which was unexplained, which would be suffered in the event a retrial were necessary. And a retrial would require the applicant’s daughter to give evidence, once again, many years after the event, about her father killing her mother before her eyes. These issues were noted in the joint judgment in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [29]:

9. [9]

   Nor will it be necessary to address the operation of the proviso, although once again it should not be assumed that even if, contrary to my conclusion below, any miscarriage of justice had been made out, the proviso would have been inapplicable.

Background

1. [10]

   As noted above, this appeal is from a conviction entered following a judge alone trial. The circumstances by which that occurred are described in R v Haydar (No 2) [2017] NSWSC 131. A detailed summary of the evidence at trial is contained in his Honour’s subsequent judgment, which occupies 76 pages and 353 paragraphs. It is neither necessary nor appropriate to reproduce most of that material in order to resolve the present appeal. There is no doubt that on 30 March 2015, the day the applicant returned to Sydney from a visit to his unwell mother in Lebanon, he arrived at the townhouse where, although separated from his wife, he was living, and confronted her about a trivial matter. The argument escalated and the applicant attacked her with a knife, which the judge found he had brought with him from Lebanon. Much of the attack was witnessed by their youngest daughter, Ola (then aged 18), who sought to prevent his attack and placed herself between the applicant and her mother. While doing so, the applicant stabbed his daughter, causing significant injuries to her right hand. Those injuries were the subject of the charge of inflicting grievous bodily harm, which was count 2 on the indictment, of which the applicant was found guilty and from which no appeal has been brought. Unable to prevent his attacks, Ola telephoned 000 in circumstances central to the issues in this appeal, and no later than shortly after that call was connected, the applicant left the premises. Police and ambulance officers arrived thereafter and attempted to save the deceased’s life but without success. The applicant had stabbed her over 30 times to her front, her back, her face and other parts of her body.

2. [11]

   The applicant was charged with murder. His plea was not guilty of murder but guilty of manslaughter. He relied upon s 23A of the Crimes Act 1900 (NSW), which was relevantly in the following terms:

3. [12]

   There was extensive psychiatric evidence at trial, by Dr Allnutt (called in the Crown case) and Drs Nielssen and Westmore (called in the defence case). The primary judge found, for reasons that need not be reproduced but which are at [260]-[308], that the Crown had established each of the essential elements of the offence of murder beyond reasonable doubt. His Honour then turned to the partial defence under s 23A and found, for reasons at [309]-[329], that the applicant suffered from a pre-existing mental condition which substantially impaired his ability to control himself, namely, mild to moderate depression, and thus the elements of s 23A(1)(a) were established. As much had been conceded by the Crown. However, the primary judge was not persuaded that s 23A(1)(b) was made out and for that reason, made a finding of guilty of murder which, pursuant to s 133 of the Criminal Procedure Act 1986 (NSW), was the equivalent of a jury’s guilty verdict. The appeal is confined to a challenge to that finding.

The reasoning of the primary judge on s 23A(1)(b)

1. [13]

   The primary judge accepted that the applicant’s depression, which impaired his capacity to control himself, was present at the time of the killing. However, his Honour was not persuaded that that was the only factor that led to that conduct. Indeed, the primary judge found that the predominant cause of the killing was not the loss of control caused by his depression, but his jealousy or anger. The primary judge explained this as follows at [332]-[334]:

2. [14]

   The primary judge proceeded on the basis that it was not necessary to be persuaded that the impairment was the sole cause of the loss of self-control. His Honour said that it was necessary that the impairment be “so substantial to warrant finding a verdict for the lesser offence”. His Honour said that “I will approach the matter in a broad common sense way, and by applying community standards”. No issue was taken with the approach formulated by the primary judge.

3. [15]

   His Honour then stated, at [341], that “I am not persuaded that it is appropriate, by application of broad community standards and values, and having regard to the moral culpability of the accused in light of his substantial impairment, to reduce the offence from murder to manslaughter.” His Honour then said that there were “many features” of the applicant’s conduct which stood against any reduction from murder to manslaughter. The primary judge then identified, in the following five paragraphs, the features upon which he relied. Those paragraphs are as follows (at [342]-[346]):

The submissions in support of the appeal

1. [16]

   The submissions in this Court were confined to the finding in [345], emphasised above, concerning whether self-control existed to the same extent throughout the whole of the attack. The applicant’s essential point was that the particular finding of fact at [345] about the impaired capacity for self-control not continuing throughout the entirety of the attack was a material contributor to the ultimate evaluative judgment posed by s 23A(1)(b), and that that particular finding was wrong. It was put thus:

2. [17]

   In order to understand that submission, it is necessary to summarise aspects of the psychiatric evidence, and aspects of Ola’s evidence.

3. [18]

   The psychiatric experts were asked to assume a sustained frenzied attack, with the deceased being stabbed more than thirty times. Nothing in their assumptions resembled the evidence given by the eyewitness, Ola. Her unchallenged evidence was that the attack occurred in two places: first in the kitchen and then in the loungeroom. Ola tried to intervene while the stabbing continued in the kitchen, and that was where she herself was stabbed. She then gave this evidence:

4. [19]

   Ola then described the attack continuing in the lounge room, and her mother saying “Haydar, I didn’t do anything” repeatedly, to which he made no response. She then gave this evidence:

5. [20]

   A sound recording of her 000 call was played at trial. Early in the call, she states that her father had left.

6. [21]

   Ola’s evidence of the pause and resumption of the attack had not been included in the assumptions the experts were asked to make. Dr Westmore, who was called by the defence, was not taken to Ola’s evidence in chief, or by the Crown who cross-examined him over some five pages of transcript. The judge intervened as follows:

7. [22]

   The entirety of this appeal is based on that exchange. It was said that:

8. [23]

   The inaccuracy of what was put to the witness turned on where in the house, ie in the kitchen or the loungeroom, did the events described by Ola (the words spoken, and the cessation and resumption of the attack) take place. It was said:

Consideration and orders

1. [24]

   I do not accept the submission that a fundamentally different scenario was given to the expert. As Dhanji J observed during the hearing, what matters for the purpose of the impugned finding in [345] is not whether the pause in the frenzied attack occurred in the kitchen or in the loungeroom, but the fact that during the attack there was a time when there was a pause, after which the stabbings continued. It is true that, based on Ola’s evidence, the statements by the applicant, “It’s fine”, occurred in the kitchen, and the pause in the attack occurred in the loungeroom when she was telephoning for help. But the gravamen of the judge’s question, which plainly was an attempt to obtain an opinion based on the facts as they emerged in Ola’s evidence (which was different from what Dr Westmore had been asked to assume), was whether it was possible that a pause in the attack, followed by a resumption in the attack, might reflect an altered level of self-control. For the purposes of that question, nothing turned on where the pause and resumption took place, or what Ola was saying or doing at the time.

2. [25]

   The conclusion that there was no material misstatement of the facts in the question to Dr Westmore is borne out by what occurred at trial. The applicant was then represented by experienced senior counsel. There was no jury. There was nothing to inhibit a correction to the assumptions being made. But there was no objection to the accuracy of what the judge had put to the expert. Nor did the defence, in re-examination, seek to put an alternative version to the expert, to the effect that the cessation and resumption of the attack did not occur in the loungeroom. The failure to take those steps tends to confirm that no one at trial regarded any such errors as material.

3. [26]

   Further, it is important to bear steadily in mind that the transcript is only ever an imperfect record of the trial, and in the present case it is clear that when Ola was describing the last moments of her mother’s life, she was distressed and a little incoherent. Although as presented in the transcript, there was a clear delineation between the stabbing in the kitchen and the stabbing in the loungeroom, it is not apparent that the effect of her evidence was so prescriptive, and in particular, it is far from apparent that the verbal exchanges between daughter and father were confined to the kitchen, as opposed to continuing throughout the entirety of the attack.

4. [27]

   The trial judge heard Ola give evidence that her father paused his attack, and then resumed. He had the benefit of expert evidence, if indeed expert evidence were needed, that a pause and resumption of the attack could suggest that a degree of self-control had been restored. The fact that there may have been a factual inaccuracy in the assumptions put to the expert who gave that opinion in no way undermines it. It is by no means uncommon for the assumptions on which expert evidence is based not to adhere to the entirety of the evidence adduced at trial. In such cases, what matters is whether the divergence is so material as to detract from the weight to be given to the opinion.

5. [28]

   I do not accept that there is any error in the conclusion that the applicant’s impaired capacity for self-control did not persist throughout the whole of the attack. That is sufficient to reject this ground. Accordingly, it is not necessary to address the application of the proviso or the need for an extension of time. The Court having enjoyed the benefit of full argument on the point, I propose that there be an extension of time and the grant of leave, but the appeal must be dismissed.

6. [29]

   I propose these orders:

7. [30]

   N ADAMS J: I agree with Leeming JA.

8. [31]

   DHANJI J: I agree with Leeming JA.