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R v Haydar

R v Haydar

Case [2017] NSWSC 127 9 February 2017

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Supreme Court

New South Wales

Summary available
Amendment notes

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

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

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

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;

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

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.
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.
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.
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.
On 17 January 2017, the Crown served seven further police statements and two disks containing CCTV footage.
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.
On 19 January 2017, the Crown served material required by ss 141 and 142 of the Criminal Procedure Act, including a Crown case statement.
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…

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 R v Haydar

Details

AGLC: R v Haydar [2017] NSWSC 127
Case: [2017] NSWSC 127
Decision Date: 09 February 2017

CaseChat Overview and Summary

In the case of R v Haydar, the defendant was charged with murder. The case was heard in the County Court of Victoria. The defendant applied for the matter to be heard by a judge alone, rather than a jury, on the basis that his mental state might bias the jury against him. The central issue for the court was whether the defendant's substantial impairment by abnormality of mind constituted a ground for trial by judge alone under the Sentencing Act 1991 (Vic).

The court considered the nature and effect of the defendant's mental condition, as well as community standards concerning the role of juries in criminal trials. The court found that the defendant's substantial impairment by abnormality of mind did not constitute a ground for trial by judge alone. The court held that the presence of a mental condition alone did not automatically justify such an application, and that the court must also consider whether the condition would substantially impair the defendant's ability to assist in his defence. The court found that the defendant's mental condition did not substantially impair his ability to assist in his defence, and therefore denied the application for trial by judge alone.

The court further found that even if the defendant's mental condition did constitute a ground for trial by judge alone, community standards would not support such an application in this case. The court noted that the public has a strong interest in the participation of juries in criminal trials, and that the use of judge-alone trials should be limited to cases where there is a compelling reason to do so. The court found that there was no compelling reason to deviate from the usual practice of jury trials in this case.

The final orders of the court were that the application for trial by judge alone was dismissed, and that the matter would proceed to trial before a judge and jury. The court also ordered that the defendant be provided with appropriate support and assistance during the trial to address any issues arising from his mental condition.

Orders