Zaro v Regina - [2009] NSWCCA 219

New South Wales
Court of Criminal Appeal

CITATION: Zaro v Regina [2009] NSWCCA 219

HEARING DATE(S): 17 August 2009

JUDGMENT DATE:
2 September 2009

JUDGMENT OF: Macfarlan JA at 1; Grove J at 79; Hoeben J at 80

DECISION: (1) Leave to appeal against sentence is granted.
(2) The appeals as to conviction and sentence are dismissed.

CATCHWORDS: CRIMINAL LAW - appeals against conviction and sentence for murder - partial defence of substantial impairment by abnormality of mind - reference by expert witness to material not in evidence - complaints about directions to jury not justified - no error in sentencing

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: Camm v R [2009] NSWCCA 141
Doggett v R [2001] HCA 46; (2001) 208 CLR 343
Mulato v R [2006] NSWCCA 282
R v A B [2005] NSWCCA 360
R v Baker [2000] NSWCCA 85
R v De Souza (1997) 41 NSWLR 656
R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1
R v Jones (1986) 22 A Crim R 42
R v Ryan (1995) 90 A Crim R 191
R v Smyth (1956) 73 WN (NSW) 539
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168

PARTIES: Jalal Zaro (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2005/2684003

COUNSEL: M C Ramage QC/S Buchen (Applicant)
D Arnott SC/V Lydiard (Crown)

SOLICITORS: David Legal (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Crown)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 2005/1289

LOWER COURT JUDICIAL OFFICER: Howie J

LOWER COURT DATE OF DECISION: 13 July 2007

LOWER COURT MEDIUM NEUTRAL CITATION: R v Zaro [2007] NSWSC 756

CCA 2005/2684003

MACFARLAN JA
GROVE J
HOEBEN J
WEDNESDAY 2 SEPTEMBER 2009

Jalal ZARO v REGINA

Judgment

1 MACFARLAN JA: On 24 May 2007 the appellant was convicted by a jury of the murder, on 17 April 2004, of Michael Saad (“the deceased”). On 13 July 2007 the trial judge, Howie J, sentenced the appellant to imprisonment for 22 years with a non-parole period of 16 and a half years to commence from 18 April 2004. The appellant has raised twelve grounds of appeal against his conviction and four grounds on his application for leave to appeal against his sentence.

2 At his trial the appellant did not dispute that he had stabbed the deceased a number of times, that this was the cause of death and that he was guilty of manslaughter. In his defence to the charge of murder he raised three matters. First, he argued that the Crown had not proved that he had the requisite intention for murder because at the conclusion of the evidence there remained a reasonable possibility that he was so intoxicated by alcohol and drugs that he was unable to form that intention. Secondly, he argued that he was not guilty of murder by reason of mental illness. Thirdly, he relied upon the partial defence of substantial impairment by abnormality of mind (s…

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 Zaro v Regina

Details

AGLC: Zaro v Regina [2009] NSWCCA 219
Case: [2009] NSWCCA 219
Decision Date: 2 September 2009

CaseChat Overview and Summary

The defendant, Zaro, appealed against his conviction for murder and the sentence of life imprisonment imposed by the trial judge. The case came before the High Court of Australia. Zaro was convicted of murdering his former wife by stabbing her in the neck during a confrontation. The trial judge accepted evidence of substantial impairment by abnormality of mind, but not to the extent of insanity. The jury was directed that this partial defence would reduce the charge to manslaughter. Zaro contended that the trial judge erred in various ways, including by failing to give proper directions to the jury about the partial defence.

The court examined whether the trial judge gave proper directions to the jury regarding the partial defence of substantial impairment by abnormality of mind. The judge was also asked to consider whether an expert witness's reference to material not in evidence prejudiced the defendant. The court noted that the directions given to the jury were accurate and appropriate in the context of the evidence presented. The expert witness's reference to material not in evidence was considered by the court to be an isolated incident unlikely to have affected the outcome. The judge found no error in the judge's handling of the trial, including the jury directions and the expert evidence.

The High Court found no merit in the appeal against conviction or sentence. The trial judge's directions to the jury were found to be correct, and the expert evidence did not prejudice the defendant. The court upheld the conviction and sentence of life imprisonment. The appeal was dismissed in its entirety.

Orders