Gabor Ziha v The Queen

[2013] HCASL 185

GABOR ZIHA

v

THE QUEEN

[2013] HCASL 185
S119/2013

1. On 1 August 2006, the applicant entered his estranged wife's apartment in the middle of the night where she was asleep with her new partner, Mr Corbett.  The appellant attacked Mr Corbett with a knife, causing his death.  In the course of attacking Mr Corbett, the applicant also stabbed his wife in the thigh.

2. The applicant was tried before a judge and jury in the Supreme Court of New South Wales. The applicant pleaded not guilty to the murder of Mr Corbett, but guilty of manslaughter, and not guilty to maliciously wounding his wife. His defence to the murder charge was "substantial impairment by abnormality of mind" under s 23A of the Crimes Act 1900 (NSW). The applicant was found guilty on both counts and sentenced to imprisonment for 24 years with a non‑parole period of 18 years.

3. The applicant appealed his conviction and sought leave to appeal his sentence in the Court of Criminal Appeal. Contrary to the applicant's submissions, the Court of Criminal Appeal held that it was clear that the prosecution proved the elements of murder beyond reasonable doubt; that the defence of provocation was correctly not left to the jury (as the jury, acting reasonably, could not have failed to be satisfied beyond reasonable doubt that an ordinary person in the position of the applicant would not have been induced by the fact of Mr Corbett's relationship with the applicant's wife to kill him); and that the jury was appropriately directed in relation to the elements of murder and the defence under s 23A. The Court of Criminal Appeal further held, contrary to the applicant's submissions, that the wife's evidence of the marital relationship was relevant and that there was no basis upon which it could be excluded, and that the jury had been appropriately directed that the expert evidence was not unanimous. The Court of Criminal Appeal accepted that the trial judge did not accurately summarise the psychiatric evidence but concluded that this was adequately dealt with in the addresses by counsel. A number of other grounds were rejected by the Court of Criminal Appeal as plainly incorrect in law or without substance. Finally, the Court of Criminal Appeal held that the applicant did not raise any arguable grounds for challenging his sentence. The appeal against conviction and the application for leave to appeal his sentence were dismissed.

4. In his application for special leave to appeal to this Court, the applicant relies on grounds similar to those that were correctly rejected in the reasons of the Court of Criminal Appeal.  The applicant also raises an additional ground to the effect that the jury was not properly instructed as to their ability to return a verdict of manslaughter.  There is no error in the reasoning of the Court of Criminal Appeal and the instructions of the trial judge made plain that the jury was to return a verdict of manslaughter if they found the applicant not guilty of murder.  No question of principle is raised and the applicant would enjoy no prospects of success in this Court.

5. The applicant requires an enlargement of time within which to file his application for special leave to appeal.  He has filed an affidavit in support of an application for that enlargement of time.  An enlargement of time should be granted but special leave to appeal should be refused.

6. Pursuant to r 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
3 December 2013 S.J. Gageler