Judgment Summary

Supreme Court
New South Wales

R v Haydar [2017] NSWSC 127

Garling J

The Supreme Court has dismissed an application under section 132 of the Criminal
Procedure Act 1986 (‘the Act’) by the accused, Haydar Haydar, to be tried by a judge alone.

The accused, Haydar Haydar, was charged on 29 February 2016 on an indictment 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;
(3) in the alternative, that on 30 March 2015 at Bexley in the State of New South Wales
he did recklessly wound Ola Haydar.

The accused has offered to plead not guilty to the charge of murder but guilty of
manslaughter on the basis of the defence of substantial impairment by abnormality of mind
sufficient to satisfy section 23A of the Crimes Act 1900.

Between 11 January 2017 and 17 January 2017, the Crown served on the accused several
police and witness statements additional to the material that he had already been served
with. On 19 January 2017, the accused filed a notice of election under s 132(1) of the
Criminal Procedure Act 1986 to be tried by a judge alone. The Crown opposed the
application.

The main issue was whether it was in the interests of justice for the application to be
granted (section 132(4) of the Act).

In doing so, the Court undertook an examination of what the interests of justice required.
The Court first placed faith in counsel for both sides engaging in a dialogue which would
permit the issues at trial to be narrowed and agreement to be reached in relation to the
evidence which would and would not be lead. Secondly, the Court observed that the Crown
was under an obligation to the Court only to lead evidence strictly in compliance with the
Evidence Act 1995, and accordingly prejudice from inadmissible evidence being before the
jury was unlikely.

Thirdly, the Court did not accept that the accused would be prejudiced merely by virtue of
his barrister seeking to protect the accused’s legitimate rights by objecting to certain
evidence. Fourthly, the Court did not accept counsel for the accused’s submission that
experts giving evidence sequentially would confuse the jury. Fifthly, the Court
acknowledged the accused’s personal view but noted that it was bound by authority which
dictates that the mere statement of the accused’s wishes is not sufficient on its own to

This summary has been prepared for general information only. It is not intended to be a substitute for the
judgment of the Court or to be used in any later consideration of the Court’s judgment.
warrant the making of the order. Lastly, the Court noted the benefit of the availability of
reasons for the purpose of an appeal but stated that this is one factor to be balanced
against the other factors in determining what the interests of justice require.

Having considered these arguments, the Court concluded that the questions in section 23A
of the Crimes Act 1900 required the application of community standards, and was therefore
a matter that was better determined by a jury of twelve citizens, rather than a judge alone.
The Court therefore held that the interests of justice were best served by a trial by jury.

As a result, the Court dismissed the application.

This summary has been prepared for general information only. It is not intended to be a substitute for the
judgment of the Court or to be used in any later consideration of the Court’s judgment.