R v Saba - [2000] NSWSC 827

CITATION: R v Saba [2000] NSWSC 827

CURRENT JURISDICTION: Criminal

FILE NUMBER(S): SC 070005/00

HEARING DATE(S): 21/8/00

JUDGMENT DATE: 21 August 2000

PARTIES :

Regina v Charles Saba

JUDGMENT OF: Studdert J

COUNSEL : P. Ingram (Crown)
P. Boulten (Accused)

SOLICITORS: Office of the Director of Public Prosecutions (Crown)
Murphy's Lawyers Inc. (Accused)

LEGISLATION CITED: Mental Health (Criminal Procedure) Act

CASES CITED: R v Porter (1936) 55 CLR 182
R v Soderman (1936) 55 CLR 192
R v Stephens [1999] NSWSC 811

DECISION: See paras 31 and 44

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION
STUDDERT J
Monday 21 August 2000

070005/00 REGINA v CHARLES SABA
JUDGMENT
1   HIS HONOUR: The accused, Charles Saba, was charged with the murder of Semaan Niam Rowda at Chippendale on 18 October 1999. Upon the presentation of the indictment before this Court, the accused pleaded not guilty and elected to be tried by judge alone. The Crown consented to the election.
2   The trial proceeded on an unusual basis in that evidence for the Crown was placed before the Court in documentary form. The schedule of Crown witnesses was tendered as Exhibit E, and it identified some eighty-four witnesses whose statements were placed before the Court. None of the witnesses was required for cross examination. A statement of facts was tendered by consent and the case is not one in which there is any real contest over the manner in which the deceased met his death, although, understandably, the many witnesses who saw something of what happened do not give accounts that altogether coincide. However, in the circumstances I do not propose to review the evidence in these remarks in close detail, although I do propose to refer to some of the evidence which impresses me as giving a reliable account as to what happened.
3   The deceased was a thirty-four year old man who conducted a tobacconist shop at 158 Broadway, Chippendale. He was shot at about 11.00 am on Monday 18 October 1999 at a time when there were many people about and it is hardly surprising that there were so many witnesses who were able to assist the police. There were people walking about in the street, there were motorists passing by, and there were people travelling in the vicinity in public transport.
4   One of the witnesses was Rosalyn Hartwell, a young tourist backpacking in Australia. This witness was sitting on the steps outside the gymnasium beside the tobacconist shop and her attention was attracted to the presence of two men standing on the kerb and obviously arguing. They separated and she saw that one of the men, who was only wearing socks on his feet, ran across Broadway to the other side of the road. The other man, who I am satisfied was the deceased, made a telephone call on his mobile phone and then the person wearing only socks on his feet, who I am satisfied was the accused, approached the tobacconist shop again, and…

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 Saba

Details

AGLC: R v Saba [2000] NSWSC 827
Case: [2000] NSWSC 827
Decision Date: 21 August 2000

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Charles Saba was on trial for the murder of Semaan Niam Rowda, who was fatally shot in his tobacconist shop in Chippendale on 18 October 1999. Saba pleaded not guilty and was tried by judge alone, with the Crown's consent. The trial proceeded on documentary evidence, and the court accepted that Saba had shot Rowda with intent to kill or cause grievous bodily harm. However, Saba raised the defence of mental illness, asserting that he was not aware of the nature and quality of his actions or that they were wrong due to his mental state.

The legal issues before the court were whether Saba's mental illness, if proven, negated his criminal responsibility for the murder, and if so, what the appropriate order under the Mental Health (Criminal Procedure) Act would be. The court considered the medical evidence presented, which unanimously concluded that Saba had an acute psychotic illness at the time of the shooting, rendering him unable to understand the wrongfulness of his actions.

In accordance with the evidence, the court found Saba not guilty of murder by reason of mental illness, recording a special verdict under section 38 of the Mental Health (Criminal Procedure) Act. Under section 39 of the Act, the court was required to order Saba's detention until released by due process of law. The court deliberated on the appropriate placement for Saba, considering submissions for a transfer to the Bunya Unit at Cumberland Hospital, a medium-security facility. However, due to the uncertainty surrounding the nature of Saba's illness and the immediate risk he posed, the court ordered Saba to remain in the maximum-security environment at Ward A, Long Bay Prison Hospital until the Mental Health Review Tribunal determined otherwise.

Orders