R v Haydar (No.2) [2017] NSWSC 131

R v Haydar (No.2) [2017] NSWSC 131

In the changed circumstances, the interests of justice favoured a judge-alone trial. Two attempts to empanel a jury had failed, creating a real risk of further disruption and wasted time; the graphic post-mortem photographs created a real risk of emotional rather than reasoned jury decision-making; the factual context and psychiatric histories carried a real risk of prejudice from domestic violence and racial or religious stereotypes that directions were unlikely to overcome; and the accused, after advice, sought a judge-alone trial. Although significant weight remained in favour of jury determination of the s 23A defence and community standards, those factors were outweighed.

Jurisdiction
Australia
Judgment Date
07 March 2017
Procedural Posture
Criminal Application for Trial by Judge Alone / Second Application After Two Discharged Juries; Procedural Ruling Before Trial
Outcome
Application granted; accused to be tried by judge alone without a jury.
Legal Topics
['trial by Judge Alone' 'murder' 'wounding With Intent to Cause Grievous Bodily Harm' 'reckless Wounding' 'substantial Impairment by Abnormality of Mind' 'jury Discharge' 'prejudice and Fair Trial']
['criminal Law' 'criminal Procedure' 'evidence'] ['trial by Judge Alone' 'murder' 'wounding With Intent to Cause Grievous Bodily Harm' 'reckless Wounding' 'substantial Impairment by Abnormality of Mind' 'jury Discharge' 'prejudice and Fair Trial']

Case Brief

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Procedural Posture

Criminal Application for Trial by Judge Alone / Second Application After Two Discharged Juries; Procedural Ruling Before Trial

Legal Issues

  1. 1 ['Whether leave should be granted under s 132A(1) of the Criminal Procedure Act 1986 for a late application for trial by judge alone.' 'Whether, under s 132 of the Criminal Procedure Act 1986, the interests of justice required the accused to be tried by judge alone rather than by jury.' 'Whether changed circumstances, including two failed attempts to empanel a jury, graphic post-mortem photographs, the 000 call, and risks of prejudice arising from domestic violence and racial or religious stereotypes, outweighed the preference for jury determination of the s 23A defence.']

Ratio Decidendi

In the changed circumstances, the interests of justice favoured a judge-alone trial. Two attempts to empanel a jury had failed, creating a real risk of further disruption and wasted time; the graphic post-mortem photographs created a real risk of emotional rather than reasoned jury decision-making; the factual context and psychiatric histories carried a real risk of prejudice from domestic violence and racial or religious stereotypes that directions were unlikely to overcome; and the accused, after advice, sought a judge-alone trial. Although significant weight remained in favour of jury determination of the s 23A defence and community standards, those factors were outweighed.

Court Disposition

Application granted; accused to be tried by judge alone without a jury.

Orders

  • ['Pursuant to section 132A(1) of the Criminal Procedure Act 1986, the accused be granted leave to apply for a trial by judge alone.' 'Pursuant to section 132 of the Criminal Procedure Act 1986, the accused be tried for murder, wounding with intent to cause grievous bodily harm, and, in the alternative to the count...