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Court of Criminal Appeal 21 February 2013

Ziha v R

[2013] NSWCCA 27

Homicide
CRIMINAL LAW MURDER CHARGE S 23A CRIMES ACT 1900 NO ISSUE OF PRINCIPLE CRIMINAL LAW MURDER CHARGE S 23 CRIMES ACT 1900

Citation: Ziha v R [2013] NSWCCA 27
Court: NSW Court of Criminal Appeal
Date: 21 February 2013
Judge(s): Macfarlan JA (principal judgment), Fullerton J, Campbell J

Background

The appellant was convicted after a 2008 jury trial of the murder of his estranged wife's partner and of maliciously wounding his wife. The killing occurred when the appellant entered his wife's Parramatta flat at night using secretly copied keys, armed with a kitchen knife, and attacked the deceased in bed. The deceased sustained more than 30 stab wounds. The appellant had pleaded not guilty to murder but guilty to manslaughter, and ran a trial defence of substantial impairment by abnormality of mind under s 23A of the Crimes Act 1900.

The appellant was sentenced to 18 years' imprisonment with a 6-year balance of term for the murder. He appealed against his convictions and, in substance, also against his sentences. He was unrepresented on appeal and filed written submissions exceeding 100 pages.

  • Whether the jury's verdict on the murder charge was unreasonable or unsupported by the evidence, particularly given the psychiatric evidence going to the s 23A substantial impairment defence
  • Whether the trial judge was required to leave the issue of provocation (s 23 of the Crimes Act 1900) to the jury, even though provocation had not been raised by the defence at trial
  • Whether various alleged errors in the sentencing process, including the standard of proof applied to mitigating factors, rendered the murder sentence manifestly excessive

Decision

On the substantial impairment defence, the Court found the jury's verdict was well open on the evidence. The psychiatric evidence was not unanimous or unequivocal in favour of the defence. In particular, one expert's initial assessment had been based on factual assumptions about the appellant's state of mind on the night of the killing, and the jury, having seen and heard all witnesses including the appellant, was entitled to resolve that factual question against him. Campbell J specifically emphasised that the jury's firsthand assessment of witness credibility could not be recreated on appeal.

On provocation, Macfarlan JA examined whether the trial judge had been obliged under s 23 to leave the defence to the jury even without it being raised by the accused. The relevant test required consideration of whether an ordinary person in the position of the appellant might have so far lost self-control as to have formed an intent to kill. The Court found no sufficient evidentiary basis for that conclusion on the facts of this case, and accordingly the trial judge was not required to leave provocation to the jury.

On sentence, the Court rejected each of the appellant's complaints. No error was established in the standard of proof applied to mitigating factors, and the sentence was not found to be manifestly excessive. The Court noted the gravity of the offending, the applicable standard non-parole period of 20 years for murder, and the "savage and unprovoked nature" of the attack.

Orders Made

  • The time for the appellant to appeal against conviction was extended
  • The appeal against conviction was dismissed
  • Leave to appeal against sentence was refused

Key Takeaways

  • Under s 23 of the Crimes Act 1900, a trial judge's obligation to leave provocation to the jury is not triggered merely because the defence is theoretically conceivable; there must be evidence capable of satisfying the objective test that an ordinary person in the accused's position might have lost self-control to the point of forming an intent to kill.
  • Provocation need not be actively raised by the accused at trial to require consideration by the judge, but the evidentiary threshold for the objective limb of the test remains a meaningful gatekeeping requirement.
  • In dismissing the substantial impairment ground, the Court of Criminal Appeal confirmed that where psychiatric evidence is qualified by factual assumptions, the jury is entitled to reject those assumed facts based on its own assessment of witness credibility, an assessment a court of criminal appeal cannot replicate.
  • A sentence for murder must be assessed against the Crimes Act's prima facie life sentence and the relevant standard non-parole period, which for murder is 20 years under the Crimes (Sentencing Procedure) Act 1999.
  • No error is established in a sentencing judge's treatment of mitigating factors simply because the accused asserts a higher or different standard was applied; there must be positive evidence of that error.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(a), 23, 23A, 19A, 35(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21 and Division 1A Table

Cases:
- Green v R [1997] HCA 50; 191 CLR 334
- Johnson v R [1976] HCA 44; 136 CLR 619
- Pollock v R [2010] HCA 35; 242 CLR 233
- R v Whitworth [1989] 1 Qd R 437; 31 A Crim R 453
- SKA v R [2011] HCA 13; 243 CLR 400
- Stingel v R [1990] HCA 61; 171 CLR 312
- Van Den Hoek v R [1986] HCA 76; 161 CLR 158