AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 30 August 2023

Haydar v R

[2023] NSWCCA 213

Homicide
CRIME APPEAL AGAINST CONVICTION MURDER JUDGE ALONE TRIAL NO ERROR ESTABLISHED

Citation: Haydar v R [2023] NSWCCA 213
Court: Court of Criminal Appeal, New South Wales
Date: 30 August 2023
Judges: Leeming JA (principal judgment); N Adams J and Dhanji J (agreeing)

Background

The appellant was convicted of murder following a judge-alone trial in the Supreme Court in March 2017. On the day he returned from overseas, he confronted his estranged wife at the townhouse where they both lived, and the argument escalated into a fatal knife attack. He stabbed her more than 30 times. Their adult daughter witnessed the attack, attempted to intervene, and was herself stabbed in the hand. The appellant was convicted of both murder and inflicting grievous bodily harm; only the murder conviction was appealed.

At trial, the appellant did not dispute killing his wife. His case was that he should be convicted of manslaughter rather than murder, relying on the partial defence of substantial impairment by abnormality of mind under s 23A of the Crimes Act 1900 (NSW). Extensive psychiatric evidence was called by both the Crown and the defence. The trial judge found the partial defence not established to the required standard, and entered a conviction for murder.

The appeal reached the Court of Criminal Appeal approximately six years after conviction. Counsel candidly acknowledged gaps in the explanation for some of the delay, particularly between late 2021 and April 2023.

  • Whether the trial judge made a factual error in finding that the appellant's impairment of self-control did not persist throughout the entirety of the attack, having regard to a pause and resumption in the stabbing
  • Whether that alleged factual error contaminated the evaluative conclusion that the impairment was not "so substantial as to warrant liability for murder being reduced to manslaughter" under s 23A(1)(b) of the Crimes Act 1900
  • Whether the reformulated ground of appeal (framed as a miscarriage of justice under the third limb of s 6 of the Criminal Appeal Act 1912, rather than as an unreasonable verdict under the first limb) was established
  • Whether an extension of time to appeal should be granted, given the six-year delay

Decision

The appellant reformulated his ground of appeal on the eve of the hearing, shifting from an unreasonable verdict argument (the "first limb" of s 6 of the Criminal Appeal Act 1912) to a miscarriage of justice argument (the "third limb"). Leeming JA noted two significant consequences of that shift. First, if a miscarriage is established under the third limb, the proviso remains available to the court, meaning the conviction could nonetheless be upheld if no substantial miscarriage actually occurred. Second, the only available remedy under the reformulated ground was a retrial, not a substituted conviction for manslaughter. That prospect raised serious questions about prejudice, fading recollections, and the burden a retrial would place on the daughter, who would again be required to give evidence about witnessing her father kill her mother.

The central factual argument was that the trial judge erred in finding that the appellant's impaired capacity for self-control did not persist throughout the whole of the attack. The appellant pointed to an alleged inaccuracy in the assumptions put to a psychiatric expert at trial, suggesting that the judge had misdescribed where in the premises the pause and resumption of the attack occurred. Leeming JA found this argument unpersuasive. The defence had not objected to the assumptions at trial, had not challenged the expert on the point in re-examination, and no party had treated the matter as material. That conduct indicated the alleged discrepancy was not regarded as significant at the time.

Leeming JA also noted that the daughter's distressed and somewhat incoherent evidence meant the transcript did not necessarily establish a precise geographic delineation between stages of the attack. The expert opinion that a pause and resumption could indicate restoration of some degree of self-control remained valid, regardless of any minor inaccuracy in the assumed location. The core factual premise, that there was a pause and then a resumption of the attack, was not in dispute.

No error was found in the trial judge's conclusion that the appellant's impaired capacity for self-control did not persist throughout the whole of the attack. On that basis, the appeal ground failed. The Court extended time and granted leave to appeal, but dismissed the appeal. It was unnecessary to address the proviso or the extension of time considerations in detail.

Orders Made

  • Extension of time to appeal granted; leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • No error was established in the trial judge's finding that the partial defence of substantial impairment under s 23A of the Crimes Act 1900 was not made out, where the evidence supported a conclusion that the appellant's impaired self-control did not persist throughout the entire attack.
  • A factual inaccuracy in the assumptions underlying expert evidence will not necessarily undermine that evidence; what matters is whether the divergence between the assumed facts and the evidence at trial is so material as to detract from the weight of the opinion.
  • Reformulating an appeal ground from the "first limb" (unreasonable verdict) to the "third limb" (miscarriage of justice) under s 6 of the Criminal Appeal Act 1912 carries real procedural consequences: the proviso remains available to the court, and the remedy is a retrial rather than a substituted verdict.
  • Where a retrial would be the consequence of a successful appeal, courts will consider the prejudice caused by significant delay, including the stress imposed on witnesses who would again be required to give evidence about traumatic events many years after the fact, as identified in Kentwell v The Queen (2014) 252 CLR 601.
  • Failure by the defence at trial to object to assumptions put to an expert, or to put an alternative version in re-examination, may indicate that the alleged error was not regarded as material, and will weigh against the same argument succeeding on appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 23A (partial defence of substantial impairment by abnormality of mind)
- Criminal Appeal Act 1912 (NSW), s 6 (grounds for allowing an appeal against conviction)
- Criminal Procedure Act 1986 (NSW), s 133 (judge-alone verdict deemed equivalent to jury verdict)

Cases
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 (three limbs of appellate intervention in conviction appeals)
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (interests of justice in reviewing stale convictions)
- R v Haydar (No 2) [2017] NSWSC 131 (circumstances of judge-alone election)
- R v Haydar (No 3) [2017] NSWSC 159 (primary judge's verdict and reasons)