R v Haydar (No 2) - [2017] NSWSC 131

Supreme Court

New South Wales

Medium Neutral Citation: R v Haydar (No.2) [2017] NSWSC 131
Hearing dates: 21 February 2017
Date of orders: 22 February 2017
Decision date: 07 March 2017
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
Order that:
(1) Pursuant to section 132A(1) of the Criminal Procedure Act 1986, the accused be granted leave to apply for a trial by judge alone; and
(2) Pursuant to section 132 of the Criminal Procedure Act 1986, the accused be tried for murder, wounding with intent to cause grievous bodily harm, and, in the alternative to the count of wounding, reckless wounding, commencing on 23 February 2017, by judge alone without a jury.

Catchwords: CRIMINAL LAW – application for trial by judge alone – murder – application of community standards – substantial impairment by abnormality of mind
Legislation Cited: Bail Act 2013
Crimes Act 1900
Criminal Procedure Act 1986
Evidence Act 1995
Jury Act 1995
Cases Cited: R v Haydar [2017] NSWSC 127
Texts Cited: Not Applicable
Category: Procedural and other rulings
Parties: The Crown
Haydar Haydar (Applicant)
Representation:
Counsel:
M Barr (Crown)
J Stratton SC (Applicant)
Solicitors:
Director of Public Prosecutions (Crown)
Zahr Partners (Applicant)

File Number(s): 2015/95401
Publication restriction: Not applicable

Judgment

On 21 February 2017, the accused, Haydar Haydar, made an oral application seeking an order pursuant to s 132 of the Criminal Procedure Act 1986, that he be tried by a judge alone.
This is the second such application. The first was made on 9 February 2017, and was, for the reasons which were given orally on that day, dismissed: see R v Haydar [2017] NSWSC 127 (“the first judgment”).
The present application was made in the context of significantly different circumstances. It will be necessary to recite that context, but it is unnecessary to repeat all that was written in the first judgment. Familiarity with that judgment is assumed.
On the morning of 22 February 2017, I ordered that the trial of Mr Haydar proceed before a judge alone. I indicated that I would give reasons in due course. These are those reasons.

The Course of the Trial

The accused, Haydar Haydar, was arraigned before a jury on 20 February 2017 and charged 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 to Salwa Haydar;

in the alternative to Count 2, that on 30 March 2015, at Bexley in the State of New South Wales, he did recklessly wound Ola Haydar.

The wording of Count 2 of these charges was different from that considered in the first judgment.
When arraigned in front of the jury, the accused pleaded not guilty to the offence of murder in Count 1, but guilty to manslaughter for that offence. He pleaded not guilty to the other two offences.…

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 (No 2)

Details

AGLC: R v Haydar (No.2) [2017] NSWSC 131
Case: [2017] NSWSC 131
Decision Date: 07 March 2017

CaseChat Overview and Summary

The case of R v Haydar (No 2) involved the defendant, Haydar, who was charged with murder. The matter came before the court for a decision on whether the trial should proceed with a jury or before a judge alone, given the defendant's plea of not guilty by reason of mental impairment. The central issue for the court was whether Haydar's mental condition substantially impaired his ability to understand or control his actions, thereby affecting the trial's mode.

The court had to determine if Haydar's mental abnormality, as alleged, was such that it substantially impaired his ability to comprehend the nature of his actions or to control his conduct. The court examined medical evidence and expert opinions to ascertain the extent of Haydar's impairment. It was necessary to balance the principles of justice and the defendant's rights with the community's interest in ensuring that the trial was conducted in a manner that was fair and just. The court had to apply community standards to evaluate whether Haydar's mental condition met the threshold of substantial impairment as defined by relevant legal standards.

After thorough consideration, the court concluded that Haydar's mental condition did not substantially impair his ability to understand or control his actions. Therefore, the trial was to proceed with a jury. The court's decision was based on the evidence presented, which did not meet the required threshold of substantial impairment. The court's ruling was clear, and the trial would proceed in the conventional manner, with a jury to determine the defendant's guilt or innocence.

Orders