Haydar v R

Background

1. As noted above, this appeal is from a conviction entered following a judge alone trial. The circumstances by which that occurred are described in R v Haydar (No 2) [2017] NSWSC 131. A detailed summary of the evidence at trial is contained in his Honour's subsequent judgment, which occupies 76 pages and 353 paragraphs. It is neither necessary nor appropriate to reproduce most of that material in order to resolve the present appeal. There is no doubt that on 30 March 2015, the day the applicant returned to Sydney from a visit to his unwell mother in Lebanon, he arrived at the townhouse where, although separated from his wife, he was living, and confronted her about a trivial matter. The argument escalated and the applicant attacked her with a knife, which the judge found he had brought with him from Lebanon. Much of the attack was witnessed by their youngest daughter, Ola (then aged 18), who sought to prevent his attack and placed herself between the applicant and her mother. While doing so, the applicant stabbed his daughter, causing significant injuries to her right hand. Those injuries were the subject of the charge of inflicting grievous bodily harm, which was count 2 on the indictment, of which the applicant was found guilty and from which no appeal has been brought. Unable to prevent his attacks, Ola telephoned 000 in circumstances central to the issues in this appeal, and no later than shortly after that call was connected, the applicant left the premises. Police and ambulance officers arrived thereafter and attempted to save the deceased's life but without success. The applicant had stabbed her over 30 times to her front, her back, her face and other parts of her body.
2. The applicant was charged with murder. His plea was not guilty of murder but guilty of manslaughter. He relied upon s 23A of the Crimes Act 1900 (NSW), which was relevantly in the following terms: 23A Substantial impairment by abnormality of mind (1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. … (4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section. (5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead. …
3. There was extensive psychiatric evidence at trial, by Dr Allnutt (called in the Crown case) and Drs Nielssen and Westmore (called in the defence case). The primary judge found, for reasons that need not be reproduced but which are at [260]-[308], that the Crown had established each of the essential elements of the offence of murder beyond reasonable doubt. His Honour then turned to the partial defence under s 23A and found, for reasons at [309]-[329], that the applicant suffered from a pre-existing mental condition which substantially impaired his ability to control himself, namely, mild to moderate depression, and thus the elements of s 23A(1)(a) were established. As much had been conceded by the Crown. However, the primary judge was not persuaded that s 23A(1)(b) was made out and for that reason, made a finding of guilty of murder which, pursuant to s 133 of the Criminal Procedure Act 1986 (NSW), was the equivalent of a jury's guilty verdict. The appeal is confined to a challenge to that finding.

The reasoning of the primary judge on s 23A(1)(b)

1. The primary judge accepted that the applicant's depression, which impaired his capacity to control himself, was present at the time of the killing. However, his Honour was not persuaded that that was the only factor that led to that conduct. Indeed, the primary judge found that the predominant cause of the killing was not the loss of control caused by his depression, but his jealousy or anger. The primary judge explained this as follows at [332]-[334]: It cannot be doubted that the accused's depression, and the impairment of the capacity to control himself which it permitted, was present at the time of the killing. However, I am not persuaded that the impairment of the accused's capacity for self-control by reason of the depression was the only factor that led to his behaviour. The accused had formed the view prior to going to Lebanon that his wife had been unfaithful. He ruminated on that fact whilst he was away. His text message to his wife accusing her of being unfaithful is evidence of his pre-occupation. Because of his opinion, the accused, in my assessment, became jealous of his wife. At the first opportunity upon his return to Sydney, he protested to his daughters on the morning of 30 March 2015 that he had had the opportunity to be unfaithful, but had resisted any temptation so to do. He told them, perhaps indirectly, that his wife had been unfaithful. As soon as he could do so, the accused took his wife's mobile phone and put it in his own bag as proof of her infidelity. The exchange between them, which immediately preceded the stabbing of the deceased, was perceived by the accused as being related to her unfaithfulness. His perception was that her words and conduct confirmed his view that she had been unfaithful. The accused was jealous of his wife and her perceived new relationship. He was angry because of that jealousy, and the deceased's final rejection of him, by telling him to leave the Bexley townhouse. It was this combination of feelings which triggered his loss of control. In the course of his attack, he was clearly motivated by jealousy and anger over the deceased's infidelity, because he called the deceased "a slut" in Arabic - a direct reference to his perception of her infidelity. So strong was his perception of the deceased's infidelity, and his view that she had confirmed it, that although the deceased protested during the attack that she had done nothing wrong, the accused persisted in the attack. In my view, his attack, whilst involving a loss of self-control on the part of the accused, was predominantly caused by his jealousy and anger towards the deceased, which had been building up in his mind for some weeks because he perceived that she was unfaithful to him and had been conducting an extramarital affair. His capacity for self-control was impaired at that time by his depression.
2. The primary judge proceeded on the basis that it was not necessary to be persuaded that the impairment was the sole cause of the loss of self-control. His Honour said that it was necessary that the impairment be "so substantial to warrant finding a verdict for the lesser offence". His Honour said that "I will approach the matter in a broad common sense way, and by applying community standards". No issue was taken with the approach formulated by the primary judge.
3. His Honour then stated, at [341], that "I am not persuaded that it is appropriate, by application of broad community standards and values, and having regard to the moral culpability of the accused in light of his substantial impairment, to reduce the offence from murder to manslaughter." His Honour then said that there were "many features" of the applicant's conduct which stood against any reduction from murder to manslaughter. The primary judge then identified, in the following five paragraphs, the features upon which he relied. Those paragraphs are as follows (at [342]-[346]): This was an offence of domestic violence taking place in the home. The attack was of great ferocity and persistence. It was the accused's intention to kill the victim. He succeeded in so doing. The attack was persisted with notwithstanding Ola's attempts to stop it, and the resistance of the deceased. That resistance led to significant wounds on the deceased's hands, wrists and arms as she tried to defend herself from the accused's attack. As I have earlier found, the principal cause of the accused's conduct was his jealousy and anger arising from his perception that the deceased was unfaithful to him. Assuming, in favour of the accused, that his perception was an entirely reasonable one, his reaction to that perception was completely unreasonable. The community would simply not regard it as acceptable for an older man to physically assault his younger wife, in any way at all, let alone in the violent manner which occurred here, and conclude that the blameworthiness or moral culpability of the [victim] should be regarded [as] warranting a conviction for a lesser charge. There is nothing which the deceased did which can be reasonably regarded as having any causal effect on the conduct of the accused. She did not physically threaten the accused, or do anything towards him that may have caused him to fear for his life or his safety. The exchange of words which preceded the accused's conduct was, if anything, rather banal and certainly not out of their ordinary exchanges over the preceding years. In other words, the deceased had no blameworthiness to be attached to her in the circumstances. To the extent that the accused was suffering from depression, I have concluded that it was not severe on the evening of 30 March 2015, and rather that it was mild to moderate. His depression was not of a severity which had caused him to seek medical or psychiatric help. He had not sought out, nor was he taking, medication to alleviate any of his symptoms. He had managed all of his activities that day including making apparently rational decisions. Whilst I can accept that his impaired self-control by reason of his depression contributed in the way I have earlier described to his embarking upon his ferocious and angry attack, I cannot accept that the impairment to his self‑control existed to the same extent throughout the whole of the attack. I am not persuaded that by the time his wife had protested her innocence, and his daughter was screaming for help, when he paused and spoke to his daughter the words "it's fine, it's fine", and then resumed stabbing the deceased, he was doing anything other than making a choice to continue with his stabbing attack on the deceased. In other words, his impaired capacity for self-control did not persist throughout the whole of the attack. Whilst I accept that the accused's impairment was substantial, the ferocity of the attack, the intention which accompanied it - namely to kill the deceased, the persistence of the accused in the attack notwithstanding his wife and his daughter's protestations, together with all of the matters to which I have drawn attention, all combine in my view to positively persuade me that it would not be appropriate to convict the accused of manslaughter. Put differently, the accused has not persuaded me that the impairment was so substantial as to warrant his liability for murder being reduced to manslaughter. [Emphasis added]

The submissions in support of the appeal

1. The submissions in this Court were confined to the finding in [345], emphasised above, concerning whether self-control existed to the same extent throughout the whole of the attack. The applicant's essential point was that the particular finding of fact at [345] about the impaired capacity for self-control not continuing throughout the entirety of the attack was a material contributor to the ultimate evaluative judgment posed by s 23A(1)(b), and that that particular finding was wrong. It was put thus: But in our submission that value judgment was compromised by the reasoning process that started from the crucial finding which we say was not reasonably open to him, namely that the loss of capacity for self-control diminished during the attack or definitely control resumed during the attack.
2. In order to understand that submission, it is necessary to summarise aspects of the psychiatric evidence, and aspects of Ola's evidence.
3. The psychiatric experts were asked to assume a sustained frenzied attack, with the deceased being stabbed more than thirty times. Nothing in their assumptions resembled the evidence given by the eyewitness, Ola. Her unchallenged evidence was that the attack occurred in two places: first in the kitchen and then in the loungeroom. Ola tried to intervene while the stabbing continued in the kitchen, and that was where she herself was stabbed. She then gave this evidence: Q. And when you were trying to get your father off your mother, were you saying anything to him? A. Yes. Q. What were you saying to him? A. "You need to stop". "What are you doing?" "Oh my God", like, "You are going to kill her" - screaming, screaming for help. Q. And did you father say anything to you or to your mother at that time? A. At a point I remember him calling her the Arabic word for a slut. And whenever I told him, "Dad, what are you doing, stop" he was like, "No, no it's fine, no it's fine". When I called out for help he would be like "What are you doing? Why are you screaming? Stop screaming". As he was killing her? [The words "As he was killing her?" may have been spoken by counsel and wrongly attributed to Ola; alternatively, the transcript may be correct as reproduced above.] Q. He was telling you to stop screaming? A. Sorry (witness appeared upset). HIS HONOUR: It is all right, just pause for a moment. CROWN PROSECUTOR Q. You then moved from the kitchen into the loungeroom area? A. Yes.
4. Ola then described the attack continuing in the lounge room, and her mother saying "Haydar, I didn't do anything" repeatedly, to which he made no response. She then gave this evidence: Q. And is that when you went to the telephone? A. Yes. Q. And what happened when you went to the telephone? A. He kept going, and he looked at me and said, "What are you doing?" when he saw me like, dialling the phone. And he continued and like, he would look back and continued, like I felt, like I noticed him pause and then continue and then pause. And like look around for a computer, like a briefcase, and he left from what I recall. Q And were you on the telephone at the time that he left? A. Yes.
5. A sound recording of her 000 call was played at trial. Early in the call, she states that her father had left.
6. Ola's evidence of the pause and resumption of the attack had not been included in the assumptions the experts were asked to make. Dr Westmore, who was called by the defence, was not taken to Ola's evidence in chief, or by the Crown who cross-examined him over some five pages of transcript. The judge intervened as follows: HIS HONOUR: Mr Crown, I don't wish to interrupt your cross-examination but there is a question I just wanted to ask the doctor. It may be fair if I do it now while you have not yet finished your cross-examination. Would it be inconvenient if I asked it? CROWN PROSECUTOR: No, your Honour. HIS HONOUR Q. Doctor, one of the matters that's been passing through my mind, listening to your evidence and the evidence of your colleagues, there seems to be agreement amongst you that a depressive illness existed. Leave aside whether it was a major depressive illness or a depressive order for the moment, but you all seem to be in agreement about that, and that such a condition may impact or does impact by impairment upon the capacity of a person to control themselves. One of the things that I've been wondering about, listening to that evidence, is this: On the account you were given and on the uncontested evidence before the Court, this was an attack which persisted. It wasn't a single stab wound, it was multiple stab wounds and which persisted for a period of time, of course no-one timed it specifically but for a period of time. Is it possible that the accused's capacity to control himself was impaired at the start of attack, and at some point that changed during the attack and he made a decision to keep going? A. I don't think I can answer that, your Honour. I think to me, the whole episode of violence appears to be one of dis-control and I can't, it seems to me that once it started it didn't finish until it finished which probably occurred when the victim was deceased. Q. No. I appreciate that would be your ordinary and pretty typical assumption but I want you to assume that the evidence is that during the attack, the deceased's daughter-- A. Yes. Q. -attempted to intervene? A. Yes. Q. And pulled or pushed the accused and the deceased apart in some way? A. Yes. Q. I don't suggest by a long distance but tried to separate them. The attack persisted, she asked or screamed for help and screamed at the accused to stop, and when that didn't occur, she, in his sight and presence, telephoned for assistance, he paused during the course of that attack and looked at her and discussed with her - when I say discussed, said to her, "What are you doing?" "There's no need to ring", "It's all fine" or words to that effect, and then resumed the stabbing attack, and then when it appeared that she had connected to the emergency services, stopped the attack and left. The deceased was still alive at that stage. If that's the way in which the facts fall out as I find them, is it possible in those circumstances one can see a change from a loss of control by reason of impairment of the kind that your report discusses, and then a decision to continue the attack. In other words, a choice not to exercise control later during the attack? A. Yes. To me, it would seem that at the - from the history you've given, your Honour, that at the point that the emergency services were contacted, a degree of control resumed. Up to that point, despite the daughter threatening to get help or trying to intervene, and I understand she was injured in this incident as well, I think there was general dis-control. He was not receptive to her pleas, not receptive to her threats to get assistance. He pursued his purpose regardless of all of those things until finally something happened, and if he was reassuring her during the incident that it's all right, that clearly wasn't consistent with, as I understand it, what had occurred.
7. The entirety of this appeal is based on that exchange. It was said that: It is accepted that is the strongest piece of the evidence at trial against the applicant. However, in our submission, that evidence is in response to an inaccurate scenario because that is not the evidence of the eyewitness, Ola.
8. The inaccuracy of what was put to the witness turned on where in the house, ie in the kitchen or the loungeroom, did the events described by Ola (the words spoken, and the cessation and resumption of the attack) take place. It was said: Importantly the words "no it's fine" occurred in the kitchen, not in the lounge room whilst the telephone was in hand and the stabbing continued without any pause [or] stoppage. The words "what are you doing", yes that did occur in the lounge room whilst the witness held the telephone. But on her evidence, the stabbing attack continued. This being the second part in the lounge room. At no point does he seek to dissuade her, don't ring or no need to ring anyone. And nothing occurs during the said pause. When one returns then to the question that was asked of Dr Westmore, application book p 650, I repeat this, the scenario being put to the witness, the attack persisted, she asked and screamed for help and screamed at the accused to stop and when that didn't occur, she in his sight and presence telephoned for assistance. He paused during the course of that attack and looked at her and discussed with her. And I say discussed, said to her "what are you doing, there's no need to ring, it's all fine" or words to that effect and then resumed the stabbing attack. It is respectfully submitted, that is a fundamentally different scenario to the evidence.

Consideration and orders

1. I do not accept the submission that a fundamentally different scenario was given to the expert. As Dhanji J observed during the hearing, what matters for the purpose of the impugned finding in [345] is not whether the pause in the frenzied attack occurred in the kitchen or in the loungeroom, but the fact that during the attack there was a time when there was a pause, after which the stabbings continued. It is true that, based on Ola's evidence, the statements by the applicant, "It's fine", occurred in the kitchen, and the pause in the attack occurred in the loungeroom when she was telephoning for help. But the gravamen of the judge's question, which plainly was an attempt to obtain an opinion based on the facts as they emerged in Ola's evidence (which was different from what Dr Westmore had been asked to assume), was whether it was possible that a pause in the attack, followed by a resumption in the attack, might reflect an altered level of self-control. For the purposes of that question, nothing turned on where the pause and resumption took place, or what Ola was saying or doing at the time.
2. The conclusion that there was no material misstatement of the facts in the question to Dr Westmore is borne out by what occurred at trial. The applicant was then represented by experienced senior counsel. There was no jury. There was nothing to inhibit a correction to the assumptions being made. But there was no objection to the accuracy of what the judge had put to the expert. Nor did the defence, in re-examination, seek to put an alternative version to the expert, to the effect that the cessation and resumption of the attack did not occur in the loungeroom. The failure to take those steps tends to confirm that no one at trial regarded any such errors as material.
3. Further, it is important to bear steadily in mind that the transcript is only ever an imperfect record of the trial, and in the present case it is clear that when Ola was describing the last moments of her mother's life, she was distressed and a little incoherent. Although as presented in the transcript, there was a clear delineation between the stabbing in the kitchen and the stabbing in the loungeroom, it is not apparent that the effect of her evidence was so prescriptive, and in particular, it is far from apparent that the verbal exchanges between daughter and father were confined to the kitchen, as opposed to continuing throughout the entirety of the attack.
4. The trial judge heard Ola give evidence that her father paused his attack, and then resumed. He had the benefit of expert evidence, if indeed expert evidence were needed, that a pause and resumption of the attack could suggest that a degree of self-control had been restored. The fact that there may have been a factual inaccuracy in the assumptions put to the expert who gave that opinion in no way undermines it. It is by no means uncommon for the assumptions on which expert evidence is based not to adhere to the entirety of the evidence adduced at trial. In such cases, what matters is whether the divergence is so material as to detract from the weight to be given to the opinion.
5. I do not accept that there is any error in the conclusion that the applicant's impaired capacity for self-control did not persist throughout the whole of the attack. That is sufficient to reject this ground. Accordingly, it is not necessary to address the application of the proviso or the need for an extension of time. The Court having enjoyed the benefit of full argument on the point, I propose that there be an extension of time and the grant of leave, but the appeal must be dismissed.
6. I propose these orders:
7. Extend the time within which to appeal and grant leave to appeal.
8. Appeal dismissed.
9. N ADAMS J: I agree with Leeming JA.
10. DHANJI J: I agree with Leeming JA.

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