Haydar v The King - [2023] NSWCCA 213

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Haydar v R [2023] NSWCCA 213
Hearing dates: 16 August 2023
Decision date: 30 August 2023
Before: Leeming JA at [1];
N Adams J at [30];
Dhanji J at [31]
Decision:
1. Extend the time within which to appeal and grant leave to appeal.
2. Appeal dismissed.

Catchwords:
CRIME – appeal against conviction – murder – judge-alone trial – whether partial defence of substantial impairment should have been upheld – whether impairment so substantial as to warrant liability for murder being reduced to manslaughter – whether factual error in one aspect of evaluative conclusion by judge – no error established

Legislation Cited:
Crimes Act 1900 (NSW), s 23A
Criminal Appeal Act 1912 (NSW), s 6
Criminal Procedure Act 1986 (NSW), s 133

Cases Cited:
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
R v Haydar(No 2) [2017] NSWSC 131
R v Haydar (No 3) [2017] NSWSC 159

Category: Principal judgment
Parties: Haydar Haydar (Applicant)
Crown (Respondent)
Representation:
Counsel:
A Chhabra and A Payten (Applicant)
E Nicholson (Respondent)
Solicitors:
Hanna Legal (Applicant)
Director of Public Prosecutions (Crown)

File Number(s): 2015/00095041
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2017] NSWSC 159

Date of Decision:

31 March 2017

Before:

Garling J

File Number(s):

2015/00095041

JUDGMENT

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.
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:

… of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Haydar v The King

Details

AGLC: Haydar v The King [2023] NSWCCA 213
Case: [2023] NSWCCA 213
Decision Date: 30 August 2023

CaseChat Overview and Summary

In the matter of Haydar v The King, the appellant was convicted of murder by a judge sitting alone in the Supreme Court of South Australia. The central issue in the appeal was whether the trial judge erred in not upholding the partial defence of substantial impairment, which could have reduced the charge from murder to manslaughter. The appellant contended that his mental impairment was so substantial as to warrant a reduction in the level of culpability. The central legal question before the court was whether the trial judge made a factual error in evaluating the extent of the appellant's impairment and whether this error was material enough to affect the outcome of the case.

The court carefully examined the trial judge's evaluation of the evidence regarding the appellant's mental state at the time of the offence. It found that while the trial judge may have erred in one aspect of the evaluative conclusion, this error did not impact the overall assessment of the appellant's mental impairment. The court concluded that the trial judge's ultimate decision not to uphold the partial defence of substantial impairment was correct, as the evidence did not establish that the appellant's impairment was so substantial as to reduce his culpability to manslaughter. Therefore, the court upheld the conviction for murder.

In light of the above findings, the appeal was dismissed. The trial judge's decision not to uphold the partial defence of substantial impairment was affirmed, and the conviction for murder remained intact. The court's ruling confirmed that any errors in the evaluation of the appellant's mental state did not materially affect the outcome of the case.

Orders