R v Zahab - [2014] NSWSC 1197

Supreme Court

New South Wales

Case Title: R v Zahab

Medium Neutral Citation: [2014] NSWSC 1197

Hearing Date(s): 28/08/2014

Decision Date: 05 September 2014

Jurisdiction: Common Law - Criminal

Before: Garling J

Decision:
Verdict:

Not guilty of murder by reason of mental illness.

Orders:

Pursuant to the Criminal Procedure Act 1986:

(1) Order that the charges on the certificate pursuant to s 166 of the Criminal Procedure Act 1986, be dismissed.

Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990:

(1) Order that Khoder Zahab be detained at the Psychiatric Ward, Long Bay Prison Hospital, or at such other place as may be determined from time to time by the Mental Health Review Tribunal, until released by due process of law.

(2) Direct the Registrar of the Court to notify the Minister for Health of this judgment and order.

(3) Direct the Registrar of the Court to notify the Mental Health Review Tribunal of this judgment and order and to provide to that Tribunal the following documentation:

(a) A copy of this judgment and orders;

(b) A transcript of these proceedings;

(c) A copy of each of the exhibits tendered at the trial.

Catchwords: CRIMINAL LAW - murder; one count - trial by judge alone - Criminal Procedure Act 1986; s 132, s 133

CRIMINAL LAW - murder; one count - defence of mental illness - Mental Health (Forensic Provisions) Act 1900; s 38 - whether accused mentally ill at time of offences under M'Naughten Rules - facts agreed by Crown and Accused - expert opinion evidence - psychiatric diagnosis of paranoid schizophrenia - whether accused knew what he was doing was wrong - defence established - no point of general principle

Legislation Cited: Crimes Act 1900
Criminal Procedure Act 1986
Evidence Act 1995
Mental Health (Forensic Provisions) Act 1990

Cases Cited: Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659
R v M'Naughten (1843) 8 ER 718
R v Porter [1933] HCA 1; (1933) 55 CLR 182
Stapleton v The Queen [1952] HCA 55; (1952) 86 CLR 358;
Regina v Matheis (1958) 58 SR (NSW) 321
R v Matusevich & Thompson [1976] VR 470
R v Huy Pham [2007] NSWSC 1313
R v Coles [2008] NSWSC 682
R v Winningham (unreported, NSWCCA, 10 May 1995)

Texts Cited: Diagnostic and Statistical Manual for Mental Disorders - 5th Edition

Category: Principal judgment

Parties: Regina (Crown)
Khoder Zahab (Accused)

Representation

- Counsel: Counsel:
M Hobart SC (Crown)
S Hall (Accused)

- Solicitors: Solicitors:
Director of Public Prosecutions (Crown)
Legal Aid Commission (Accused)

File Number(s): 2013/46570

JUDGMENT

By an indictment presented on 21 August 2014, Khoder Zahab is accused of murdering his father, Mohammad Zahab on 14 February 2013, at Bankstown, NSW.
Mr Zahab ("the accused") has pleaded not guilty to this offence.
He has elected to be tried without a jury: s 132 Criminal Procedure Act 1986.
The Crown Prosecutor 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 Zahab

Details

AGLC: R v Zahab [2014] NSWSC 1197
Case: [2014] NSWSC 1197
Decision Date: 05 September 2014

CaseChat Overview and Summary

The case of R v Zahab involved a defendant charged with one count of murder. The case was heard by the Supreme Court of the relevant jurisdiction, which exercised its discretion under the Criminal Procedure Act 1986 to conduct the trial by a judge alone. The court was tasked with determining whether the accused was mentally ill at the time of the offence, as defined by the M'Naughten Rules, pursuant to the provisions of the Mental Health (Forensic Provisions) Act 1900. This determination was crucial as it would potentially affect the legal responsibility of the accused for the crime.

The primary legal issue before the court was whether the accused, who had a psychiatric diagnosis of paranoid schizophrenia, knew the nature and quality of his actions, or that they were wrong, at the time of the offence. The facts of the case were agreed upon by both the Crown and the accused, and the court had to rely on expert opinion evidence to assess the accused's mental state. The court needed to determine if the accused's mental illness, specifically paranoid schizophrenia, met the criteria for the defence of insanity under the M'Naughten Rules. This required a careful evaluation of the evidence and expert opinions presented.

The court found that the defence of mental illness was established, as the accused was indeed mentally ill at the time of the offence and did not know the nature and quality of his actions or that they were wrong. The court accepted the expert opinion evidence and concluded that the accused's paranoid schizophrenia met the criteria for the defence of insanity. Given that the facts were agreed upon and the defence was established, the court found that there was no point of general principle for the jury to determine. The court's reasoning was based on the clear evidence and expert opinion presented, leading to the conclusion that the accused was not criminally responsible for the offence due to his mental illness.

The final orders of the court were that the accused be acquitted of the charge of murder on the basis of mental illness, as per the defence established under the Mental Health (Forensic Provisions) Act 1900. The court's decision was grounded in the accepted facts and expert opinion evidence, leading to the conclusion that the accused was not criminally responsible for the offence due to his mental illness at the time of the offence.

Orders