On 21 February 2017, the accused, Haydar Haydar, made an oral application seeking an order pursuant to s 132 of the Criminal Procedure Act 1986, that he be tried by a judge alone.
This is the second such application. The first was made on 9 February 2017, and was, for the reasons which were given orally on that day, dismissed: see R v Haydar [2017] NSWSC 127 ("the first judgment").
The present application was made in the context of significantly different circumstances. It will be necessary to recite that context, but it is unnecessary to repeat all that was written in the first judgment. Familiarity with that judgment is assumed.
On the morning of 22 February 2017, I ordered that the trial of Mr Haydar proceed before a judge alone. I indicated that I would give reasons in due course. These are those reasons.
[2]
The Course of the Trial
The accused, Haydar Haydar, was arraigned before a jury on 20 February 2017 and charged with the following offences:
1. that on 30 March 2015, at Bexley in the State of New South Wales, he did murder Salwa Haydar;
2. that on 30 March 2015, at Bexley in the State of New South Wales, he did wound Ola Haydar with intent to cause grievous bodily harm to Salwa Haydar;
3. in the alternative to Count 2, that on 30 March 2015, at Bexley in the State of New South Wales, he did recklessly wound Ola Haydar.
The wording of Count 2 of these charges was different from that considered in the first judgment.
When arraigned in front of the jury, the accused pleaded not guilty to the offence of murder in Count 1, but guilty to manslaughter for that offence. He pleaded not guilty to the other two offences. The Crown did not accept his plea of guilty to manslaughter in discharge of the first count on the indictment.
The jury was empanelled. After the luncheon adjournment, and at a time when the Crown prosecutor had completed most of his opening address, a note was received from a juror indicating that they were unable to continue as a juror and to pay adequate attention to the trial as it unfolded. After hearing submissions from counsel, and with the consent of both parties, the Court proceeded to discharge the individual juror and then, pursuant to s 53C of the Jury Act 1977, having formed the view that there would be a risk of a substantial miscarriage of justice if the trial continued with the remaining jurors, the Court discharged the whole jury.
On 21 February 2017, a fresh jury panel was brought to Court. The jury was empanelled. Prior to empanelling, and in accordance with the ordinary procedure, the Crown informed the jury panel of the nature of the offence in broad terms, the circumstances surrounding the commission of the offence, and the names of the witnesses whom it was likely would be called.
A number of members of the jury panel applied to be excused, and they were so excused.
The Court proceeded to empanel the jury. I then delivered some opening remarks to the jury outlining their roles and responsibilities, the procedure they might expect to be followed during the course of the trial, and warning them, in the usual way, against engaging in conduct which would constitute a breach of the Jury Act.
During the course of those opening remarks, it was readily apparent to my observation, and to the observation of others in the Court room, that one particular juror failed to give any, or any adequate attention, to those remarks. During the remarks being addressed to the jury, the juror chose to pick up a Bible which had been placed on the jury box in front him, and to read pages or passages from it apparently at random, flicking through it while evidencing a facial expression of non-engagement.
The Crown was then invited to open the case to the jury. During the course of the Crown's opening, that juror placed his head in his hands, leaned forward and stared at the ground. Whether he heard any of the Crown's opening address was doubtful. If he did hear it, he certainly did not evidence any sense of being interested in it, or understanding it.
After the luncheon adjournment, the Court received a number of notes from the jurors. Two of them dealt with minor procedural matters and do not need to be remarked upon. One note came from a juror who informed the Court that because the matter involved domestic violence, and because they had a particularly strong view about domestic violence, they had concluded that the accused was guilty and did not feel able to give impartial consideration to the trial. The second note was from a juror who identified the fact that members of his family lived in close proximity to the address where the offence had occurred. That juror expressed fears that he and his family members would have for their security in light of his participation on the jury.
It was readily apparent that these two jurors were unlikely to be able to give impartial consideration to the matter and ought be discharged. Both the Crown and counsel for the accused agreed that this was the appropriate course.
In addition, because of the Court's observations of the third juror and his failure to engage in the Court's processes up to that point in time, with the consent of both the Crown and the accused, the Court made an order under s 53C of the Jury Act discharging the whole of the jury.
It is necessary to note that, in accordance with the prevailing practice in the Court complex, prior to each of the jury panels being brought into court on 20 February 2017 and 21 February 2017, explicit warnings had been given to the jury panels by the Sheriff about the length of the case, the nature of the case, and the responsibilities, in general, of people selected to be on a jury. As well, the Sheriff had invited anyone on the jury panel who did not wish to sit on the trial to simply indicate that fact to him and they would be excused.
None of the usual warnings delivered by the Sheriff or the information provided by the Crown or remarks from the Court prior to empanelling the jury were effective, in the case of these two juries and in the circumstances of these offences, to enable a jury to be empanelled without subsequent disruption.
It would be idle for the Court to speculate why that might be so. It is sufficient to record that this was what happened. It provides the context in which the accused made a second application for an order for a trial by judge alone.
[3]
Application by Accused
Immediately after the second jury was discharged, senior counsel for the accused made an application for trial by judge alone.
In that application, in addition to relying upon the matters which had been raised previously and in addition to pointing to the circumstances that have just been described regarding the failed attempts to empanel a jury, senior counsel pointed to a number of other matters which, in combination, he submitted, were sufficient to justify the Court in making an order for a separate trial.
These matters were:
1. the highly emotional content of the 000 call;
2. the graphic and distressing contents of 30 colour photographs of the deceased taken during the post-mortem examination, demonstrating the number, location and nature of the stab wounds inflicted on the deceased;
3. a real and highly prejudicial risk that, given the undisputed facts about the accused being a Lebanese man from a traditional Muslim background and his significantly younger wife, who had a more relaxed attitude to the Muslim faith, being involved in an argument which resulted in the husband killing the wife, the jury would view the events as falling into a stereotype or pattern of behaviour defined by racial or religious features; and
4. the views of the accused.
In the course of argument, other matters became apparent as being relevant. Senior counsel for the accused referred to the fact that the content of the histories given to the three psychiatrists to enable them to consider and express opinions about the availability of a defence under s 23A of the Crimes Act 1900 to the accused, the content of text messages between the deceased and a third party, the reaction of the accused to those text messages, and finally the nature of the defence constituted matters that would make it difficult for a jury to act as the tribunal of fact in an impartial manner.
Senior counsel for the accused did not resile from anything which had earlier been put in the application which resulted in the first judgment.
Finally, senior counsel for the accused relied upon the context of what had occurred, namely that there had been two attempts made to empanel a jury and, with respect to at least one of those juries, the trial could not continue because of the views expressed by a juror. Senior counsel pointed to the fact that two days had been lost through no fault of the accused, and particularly to the fact that the central issue in the trial depended upon the evidence of three psychiatrists. As a result, senior counsel for the accused submitted that it was in the interests of justice and in the interests of the efficiency of the conclusion of the trial that an order for a judge alone trial be made.
[4]
Crown's Submission
The Crown submitted that it would be inappropriate for the Court to grant leave for the trial to proceed before a judge alone in circumstances where, in substance and effect, the accused was seeking to rely, in the second application, upon material that was available and could have been relied upon at the time the first application was made. In particular, the Crown pointed to the fact that the 000 phone call, the colour photographs of the deceased and the racial and religious context surrounding the trial were all matters that formed part of the original police brief and were known to the accused at the time of the first application. Accordingly, the Crown submitted that the Court would not grant leave to the accused under section 132A(1) of the Criminal Procedure Act to make an application for a trial by judge alone less than 28 days before the date fixed for the trial.
In further responding to the application of the accused, the Crown submitted that the nature and content of the photographs and the 000 call would not be of a kind which would warrant the trial being heard by a judge alone.
Ultimately, the Crown submitted that the principal issue in dispute, being that raised by s 23A of the Crimes Act, carried such weight in favour of trial by jury that the Court would not be persuaded to grant leave to make the application or to grant the application. In that respect, the Crown submitted that the two failed attempts to empanel a jury ought not outweigh the desirability of the trial being heard and determined by a jury.
[5]
A Second Application
The applicable principles have been described in the first judgment. The essential enquiry is whether the interests of justice weigh in favour of a trial by a judge alone.
The terms of s 132 of the Criminal Procedure Act do not preclude the making of multiple applications for a trial to be conducted by judge alone. Nor is there any statutory provision, such as there is in the Bail Act 2013, with respect to a second bail application (see s 74) which requires an applicant for an order to demonstrate new or fresh material, or else some change in relevant circumstances before a second application can be made.
I would not be prepared to read into the statute any such limitation as is suggested by the Crown's submissions. Were an applicant to make multiple applications based upon the same material, the Court, in the exercise of its inherent powers, is able to control such a procedure and preclude such an abuse of process.
In any event, the circumstances in this trial have changed significantly between the making of the first application and the making of the second application. Senior counsel for the accused says, and I accept, that it was not entirely apparent from the list of witnesses and the proposed documents to be tendered, that the Crown was going to play the 000 call or tender the graphic colour photographs of the deceased.
I do not think there is any restriction on the Court hearing a second application, and the appropriate course is to hear it and consider all of the matters relied upon, including those in the first application, in determining the proper order.
[6]
000 Call
The 000 call which the Crown proposes to tender is longer than is typically the case. That is because, in addition to organising the attendance of police and obtaining a description of the deceased's location, the 000 police operator expanded the telephone call to include the 000 ambulance operator who was asked to, and did, provide advice to Ms Ola Haydar, who had made the telephone call, about helping her mother.
The sheer fright, panic, and degree of extreme emotional distress of Ms Haydar is obvious in the 000 call, and is most confronting. However, what is more confronting is that during the phone call, the groans and apparent responses to questions by Ms Haydar's mother, who is lying gravely injured and in the last stages of her life, can be heard and are, in part, the subject of comments made in the phone call. Ms Ola Hayder is heard talking to her mother.
When the 000 phone call was played in court during the course of the application, it had an immediate and obvious effect upon the accused, who broke down and was apparently unable to control his emotions. But more importantly, members of the family of both the accused and the deceased who were present in court became visibly distressed and some were quite distraught. This was unsurprising. In my view, the content of the 000 phone call is graphic, horrific and highly emotional because it depicts the sounds made by the deceased victim immediately prior to her death. Putting it another way, the 000 phone call records the final moments of the deceased's life most graphically.
The Crown initially indicated that it wished to tender the 000 phone call. Senior counsel for the accused indicated that he could not submit that it was not relevant. After playing the phone call, the Crown submitted that, if the nature of it was such that the Court formed the view that it would be inappropriate for there to be a trial without a jury, it would not press the tender of the phone call. That submission carried with it the suggestion of a bargain being proffered into by the Crown to the Court. I rejected that submission and asked the Crown simply to indicate whether it wished to tender the 000 call. The Crown prosecutor indicated that he did, and that it would form part of the Crown case. It is appropriate for the Court to proceed on that basis.
That said, the forensic relevance of the 000 phone call is entirely elusive in circumstances where there is no dispute that the accused killed the deceased, nor dispute as to the method of the killing (namely an attack with a knife inflicting multiple stab wounds), the cause of the death of the deceased, the time at which these events occurred, nor the attendance, as soon as possible, of police and ambulance officers. In those circumstances, I very much doubt that it would be admissible. Certainly, if an application was made under s 137 of the Evidence Act 1995 by the accused with respect to it, it is difficult to see the basis upon which the phone call could be admitted. Even if it were admitted, there is no reason to think that the parties may not agree to a transcript only of that phone call being admitted.
In those circumstances, in considering this application, not a great deal of weight can be put on the nature and content of the 000 phone call.
[7]
Post Mortem Photographs
The Crown was firm in its submission that it wished to tender the post mortem photographs. The basis of that tender was that they were relevant to establish the number of stab wounds, the location of the stab wounds and the nature of the stab wounds indicating, in the Crown's submission, that the accused's attack upon the deceased was a prolonged, vicious and frenzied one. The Crown submitted that the photographs were a significant part of the evidence upon which it would rely to invite the jury to infer that the accused attacked the deceased with the intention to kill her rather than merely to cause her grievous bodily harm. This, the Crown submitted, was a relevant factor in the determination of whether, if the accused was successful in establishing that he was substantially impaired as required by s 23A of the Crimes Act, it was nevertheless appropriate in the application of community standards to reduce the offence from murder to manslaughter.
Senior counsel for the accused accepted the relevance of the issues raised by the Crown. However, he pointed to the graphic nature of the photographs as carrying with them a significant prejudicial effect on jury members who were not familiar with seeing photographs of the kind that were being tendered. Senior counsel contrasted that fact with the fact that those who regularly participate in court processes, such as counsel, solicitors and judges were more familiar with the use of such photographs. However, he drew attention to the fact that jurors coming to the trial would not be expected to have such familiarity, and that in the particular circumstances of these photographs, there was a real and prejudicial risk that they would engender an emotional reaction which would outweigh the rational inference-drawing process that the Crown relied upon.
I have carefully viewed the photographs. They include photographs which are graphic and which, in my view, many members of a jury, if not all of them, would find them horrific and distressing.
I accept that there is a real risk, notwithstanding such directions as may be given, that a juror would react to the tender of these photographs in a way which would lead to that juror applying to be discharged from the jury. I also accept that there is a real risk that one or more members of the jury would react in an emotional rather than reasoned way to the photographs, and that, as a result of this reaction, those jury members would be incapable of bringing an impartial mind to the determination of the issues in the proceedings. Such an outcome would be contrary to the interests of the accused and contrary to the interests of justice. Moreover, I am satisfied that notwithstanding any direction which might be given, such an emotional reaction could not in the circumstances here be overcome or mitigated.
[8]
Racial and Religious Stereotype
It is an uncomfortable fact that in the current community environment, there are two themes which attract widespread attention and which engender strong feelings. The first is the perpetration of domestic violence - particularly by an older, larger man against a younger, smaller woman. The second is the disharmony which arises in some circumstances between the cultural norms of traditional practising Muslims and the norms of the majority non-Muslims in the community.
Whilst undoubtedly directions could be given to a jury to put these matters out of their minds, there nevertheless remains a risk, which I judge in the circumstances of this case to be a real one, that one or more jurors could continue to be prejudicially swayed in their consideration of the s 23A defence by such inappropriate matters.
[9]
Psychiatrists Reports
The principal basis for the defence of the accused is to be found in the three psychiatrists' reports. They are based upon the history given to them by the accused. That history necessarily means that the matters to which reference has just been made will be put before a jury because it is necessary for the history to be explained in order for the jury to understand the basis of the opinions reached by the psychiatrists. That would, if anything, tend to aggravate rather than ameliorate the risk to which reference has just been made.
[10]
Previous Jury Experience
In my view the interests of justice permit a court to take into account, and both parties agreed that it was open to the Court so to do, the events which have transpired in this trial in attempting to empanel a jury. The fact is that time has been lost through two failed attempts to empanel a jury. Jurors have sought to be excused after empanelling notwithstanding the significant attempts made to avoid such things occurring. There is no reason to think that a third jury panel would not produce a similar experience.
In those circumstances, there is a real risk that any further jury that is empanelled may be affected by the prejudices that have been considered in these reasons. There is also a real risk that the apprehension of these prejudices by newly empanelled jury members could cause jurors to seek to be excused from their duties at a point during the trial which might not necessarily be the first day. Or, graver still, jurors could complete their duties having regard to impermissible matters or taking into account impermissible prejudices or emotional reactions. This outcome is inconsistent both with the desirability of this trial coming to an orderly, and timely, conclusion, and with the importance of the accused receiving a fair trial before an impartial tribunal of fact.
[11]
Views of the Accused
Finally, I note that the accused, in circumstances where I am assured by his senior counsel he has been adequately and appropriately advised about the effect of an order for a trial by judge alone, submits that that is the course which the Court ought follow. He submits that the attempts to empanel a jury on two occasions together with the other matters to which reference is made cause him to fear that he might not receive a fair trial from a jury. Whilst this is not a determinative factor, it is nevertheless a relevant factor to be taken into account.
[12]
Discernment
In light of all of the matters to which reference has been made, it is necessary for the Court to consider whether, in all of the circumstances, it is in the interests of justice that an order be made for a trial by judge alone.
I am acutely conscious that two weeks ago I refused such an application for the reasons which I there gave.
In my view, the circumstances have significantly changed. In the first place, attempts have been made, unsuccessfully, to empanel a jury. There is a real risk that any further attempts to empanel a jury will be unsuccessful and, accordingly, expense and time wastage will occur.
Secondly, the particularly graphic photographs of the post mortem examination tell against having a jury empanelled to hear the trial.
Thirdly, the factual context of the proceedings, and in particular the histories given to psychiatrists, carry a risk of prejudice which directions are unlikely to overcome. Finally, I take into account the matters advanced on the first application.
Significant weight must be given, and I continue so to do, to the facts in determining the s 23A defence, and most importantly to the application of objective community standards. I give weight to the fact that it would be preferable (and the legislature regards it as preferable) for the outcome of the defence under section 23A of the Crimes Act to be determined by a jury. That was the factor which, in the first judgment, caused me to dismiss the application.
Such a factor remains. However, giving it full weight, in light of the changed circumstances and all of the matters to which I have referred, I have come to the conclusion that the balance of all of the matters put before me demonstrates that it is in the interests of justice for the proceedings to continue to be heard by a judge alone and not by a jury.
It is for those reasons that I have concluded that an order pursuant to s 132 of the Criminal Procedure Act for a trial by judge alone ought be made.
Necessarily, this means that it is appropriate for leave to be granted to the accused to make such an application.
[13]
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Decision last updated: 07 March 2017