Supreme Court New South Wales Medium Neutral Citation: R v Haydar [2017] NSWSC 127 Hearing dates: 9 February 2017 Date of orders: 09 February 2017 Decision date: 09 February 2017 Jurisdiction: Common Law - Criminal Before: Garling J Decision: Dismiss the Notice of Motion dated 1 February 2017 Catchwords: CRIMINAL LAW – application for trial by judge alone – murder – application of community standards – substantial impairment by abnormality of mind Legislation Cited: Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995 Cases Cited: R v Belghar [2012] NSWCCA 86 R v Farhad Qaumi (No 14 ) [2016] NSWSC 274 R v McNeil [2015] NSWSC 357 R v Simmons (No 4) [2015] NSWSC 259 R v Villalon [2013] NSWSC 1516 Texts Cited: Not Applicable Category: Procedural and other rulings Parties: The Crown Haydar Haydar (Applicant) Representation: Counsel: C Patrick SC (Crown) G James QC (Applicant) Solicitors: Director of Public Prosecutions (Crown) Zahr Partners (Applicant) File Number(s): 2015/95401 Publication restriction: Not applicable EX TEMPORE Judgment 1. The accused, Haydar Haydar, was charged on 29 February 2016 on an indictment with the following offences: 1. that on 30 March 2015 at Bexley in the State of New South Wales he did murder Salwa Haydar; 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. in the alternative, that on 30 March 2015 at Bexley in the State of New South Wales he did recklessly wound Ola Haydar. 1. 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. 2. 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. 3. 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. 4. 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. 5. On 17 January 2017, the Crown served seven further police statements and two disks containing CCTV footage. 6. 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. 7. On 19 January 2017, the Crown served material required by ss 141 and 142 of the Criminal Procedure Act, including a Crown case statement. 8. 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. 9. 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. The accused's application is made pursuant to s 132 of the Criminal Procedure Act. "132 Orders for trial by Judge alone (1) An accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for an order that the accused person be tried by a Judge alone (a 'trial by judge order' ). (2) The court must make a trial by judge order if both the accused person and the prosecutor agree to the accused person being tried by a Judge alone. (3) If the accused person does not agree to being tried by a Judge alone, the court must not make a trial by judge order. (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. (5) Without limiting subsection (4), the court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness. (6) The court must not make a trial by judge order unless it is satisfied that the accused person has sought and received advice in relation to the effect of such an order from an Australian legal practitioner. (7) The court may make a trial by judge order despite any other provision of this section or section 132A if the court is of the opinion that: (a) there is a substantial risk that acts that may constitute an offence under Division 3 of Part 7 of the Crimes Act 1900 are likely to be committed in respect of any jury or juror, and (b) the risk of those acts occurring may not reasonably be mitigated by other means." 1. 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: "23A Substantial impairment by abnormality of mind (1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. Crown Case 1. 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: "The accused and the deceased Salwa Haydar lived with two of their daughters, Ola, and Nour, at 3/16-18 Valda Street Bexley. About 5.30pm on 30 March 2015 the deceased collected her daughter Ola from UTS at Ultimo and drove her to the family home at Bexley. On the way home Ola told the deceased that the accused had earlier that morning returned to Australia from Lebanon where he had spent the previous two weeks visiting a sick relative. On their arrival home about 6.20pm they found the accused watching TV in the main living area. Ola went to her bedroom to change and then joined the accused in the living room. The deceased went into the kitchen to prepare dinner. The deceased asked the accused to go to the garage and get some cooking oil. The accused declined saying that he was tired. As a result an argument broke out between the accused and deceased about the accused's lack of help around the house. The deceased commented that if the accused was not prepared to assist with the running of the household then he would have to move out. The accused got off the couch and went to the kitchen when the argument continued. Ola heard the deceased scream and ran into the kitchen where she saw the accused with a knife which he was using to repeatedly stab the deceased. Ola tried to get between the accused and deceased and yelled for the accused to stop. He continued to stab the deceased. As a result of her attempted intervention Ola received a number of injuries to her hands which ultimately required surgery. Realising the seriousness of the injuries sustained by the deceased Ola ran to the living room and contacted emergency services. The accused then left the premises through the front door and drove away. Police and ambulance officers attended but the deceased was unable to be revived. Shortly after 7pm the accused was dropped at St George Police Station by an unknown person. The accused went to the front counter where he was seen to be wearing blood stained clothing. The accused informed police that he had been involved in a fight with his wife. He was cautioned and told police, "I stabbed her, I just stabbed her." When asked who he had stabbed he replied, "My wife, I just stabbed my wife. I can't feel anything right now. I just got back from Lebanon and we had a fight." The accused was arrested and taken to the custody area. He was offered the opportunity to participate in an electronically recorded interview in which he confirmed the earlier conversation with police at the front counter. On legal advice he declined to answer any other questions. The body of the deceased was examined by Dr Szentmariay, Forensic Pathologist, who found that the cause of death was multiple stab wounds. The Doctor noted that there were some 30 sharp force injuries sustained to the body of the deceased. There were numerous defensive type sharp injuries to the upper extremities. There were three stab wounds which injured the right lung. Two stab wounds entered the left hemithorax which injured the lungs, and one stab wound going through the sternum terminating in the lumen of the superior vena cava. There was significant blood loss from the wounds and acute respiratory compromise due to defects of the integrity of the chest wall. The Crown case is that the accused repeated stabbed the deceased intending either to kill her or inflict grievous bodily harm." Defence under s 234 of the Criminal Act 1. Reports of three psychologists have been exchanged between the parties and have been put before the court. For the accused they are: 1. Dr Olav Neilsson, dated 14 January 2016; and 2. Dr Bruce Westmore, dated 30 March 2016. 1. The report of Stephen Allnutt, dated 20 May 2016, is relied upon by the Crown. 2. 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. 3. 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. 4. 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. 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: "20. In R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1 McClellan CJ at CL (as his Honour then was), having undertaken an exhaustive review of the authorities, distilled a number of considerations relevant to an application for trial by judge alone. Those principles may be summarised as follows: (i) although s 131 provides for trial by jury "except as otherwise provided", the section does not have the effect of creating a presumption that the trial should be with a jury, thereby casting a burden of proof on an accused person (at [96]; 25); (ii) although the accused person carries an evidentiary onus the court does not determine where the interests of justice lie by requiring the evidence to rise to a level by which a presumption of trial by jury is displaced. Given that each mode of trial has its particular characteristics, and depending on all of the circumstances relating to the particular case, the court may conclude that the interests of justice are best served by a trial before a judge alone rather than a trial by a jury (at [96]; 25); (iii) subsection 132(5) acknowledges that when considering where the interests of justice lie, it will be relevant that where the trial involves an issue which may be informed by community standards or expectations the interests of justice may be best served by utilising a jury of laypeople (at [96]; 25); (iv) the legislation does not require weight to be otherwise given to the fact that, absent an application for a judge-alone trial, the trial will be with a jury as opposed to by a judge alone. The question for the court is whether it considers that it is in the interests of justice to make the order (at [96]; 25); (v) the subjective views of an accused, and his or her belief that a jury trial may not be fair (as reflected in his or her desire to dispense with a jury) is a relevant factor to consider. However, the fact that an accused person desires a trial by judge alone is not as significant as the reasons for that preference, whether those reasons are rationally justified, and whether they bear upon the question of a fair trial (at [99]; 26 and [102]; 26-27); (vi) Parliament has made plain by the enactment of s. 132(5) that it would be preferable in the interests of justice that there should be a trial by jury where an alleged offence involves the application of objective community standards (at [100]; 26); (vii) the granting of an application which is based upon the mere apprehension of prejudice in prospective jurors, and which is not based on evidence or a matter of which the court may take judicial notice, is at odds with the assumption which the common law makes that jurors will understand and obey the instructions of trial judges to bring an impartial mind to bear on their verdict (at [102]; 26-27); (viii) it is to be assumed that the protections afforded an accused person in the ordinary course of a trial will protect him or her from an unjust result (at [107]; 27-28)" 1. 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. The accused submitted that it was in the interests of justice to grant the application for trial by judge alone for the following reasons: 1. The efficiency of the trial process having regard to the late service of the statements of the daughters of the accused and the deceased, containing what may be compendiously described as "relationship evidence", much of which it was submitted was not in admissible form and would not in any event be admissible. 2. The efficiency of the trial process by enabling the three psychiatric experts to give evidence together. 3. The avoidance of any prejudice to the accused by the interruption to the trial caused by the late service of the relationship evidence material and the consequent likelihood of the adverse view being taken of the accused by a jury where the accused was perceived as being obstructive by taking frequent and technical objections. 4. The subjective view of the accused evidenced by his application that a trial by judge along was preferable. 5. The availability of reasons from a trial judge in considering the application of the s 23A(1)(b) test and the extent of the accused's culpability which would readily enable arguments to take place on appeal, whereas a jury verdict on such a critical issue would not be able to be examined in the same way. 6. Having regard to all of the issues there would be a considerable saving in court time and resources if the matter was heard by a judge alone. 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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. 11. There may be some marginal benefit in this case, but I do not think it is of any great significance. 12. 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. 13. 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. 14. 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. 15. 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. 16. 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. 17. 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. 18. I dismiss the Notice of Motion dated 1 February 2017. ********** Amendments 24 February 2017 - Review amendments DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 February 2017